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Public Sector Informant : PSI
THE PUBLIC SECTOR INFORMANT 33 NST W ILLHEIM] tralia's empire of territories of little-known aspects of Australian history. It nippets of parliamentary debate will amuse many Continued on page 38 Paradises found and lost: Clockwise from left: Sue Draper and Travey Yager's artwork Fletcher's Mutiny Cyclorama, depicting mutineers leaving the Bounty to settle Pitcairn and Norfolk islands; the devastated landscape of Nauru, plundered by British and Australian phosphate miners; a 1774 French map of Papua and New Guinea, titled ''Carte De La Terre Des Papous'', courtesy of the National Library of Australia. Australian administrators sought to ban ''the natives'' from using alcohol, to avoid repeating the ''horrid'' mistakes that blighted Australian Aboriginal communities. have had any application. The consti- tutional authority for Australian laws relating to Nauru was presumably s51(xxix) of the Constitution, the external affairs power. Although Kerr refers briefly to constitutional doubts, his extensive collection of primary materials unfortunately lacks any rel- evant legal opinions. Nauru's post-independence story is tragic. As a result of phosphate royalties, the new nation began life with substantial financial assets. Indeed, Nauru had one of the highest per capita incomes in the world. A series of unfortunate investments quickly eroded its financial base. Nauru brought proceedings against Australia in the International Court of Justice, successfully alleging breach by Australia of a number of international obligations to the people of Nauru. A financial compensation package was negotiated. Kerr does not deal with these post-independence develop- ments, including the court's devastat- ing findings concerning Australia's breach of its obligations to Nauruans. As they arise directly out of the nature of the colonial (trusteeship) adminis- tration, the omission is unfortunate. Ashmore and Cartier islands The tale then moves to the north-west of Australia, the Ashmore and Cartier Islands, a series of uninhabited reefs, sand cays and small vegetated islands about 850km west of Darwin and 100km south of the Indonesian island of Roti. In a step remarkably similar to Queensland's purported annexation of New Guinea, Western Australia purported to annex the islands in 1883, an action promptly repudiated by the Colonial Office. A Dutch attempt to assert sovereignty was withdrawn, apparently because of British claims. In the ensuing years, Britain asserted sovereignty and issued fishing conces- sions for the island waters but it was not until 1924 that the British govern- ment suggested transferring the islands to Australia. The key interest was in fishing administration and Western Australia sought to annex the islands to the state. The Commonwealth solicitor- general, Sir Robert Garran, advised that the only available authority for boun- dary alteration, the Colonial Bound- aries Act 1895, only authorised alter- ation of the Commonwealth's boundaries. An alternative, and pre- ferred, course would be an (imperial) Order in Council placing the islands under the authority of the Common- wealth under s122 of the Constitution. This course was adopted. After the Ashmore and Cartier Islands Accept- ance Act 1933 was passed, Australia acquired a new external territory. In 1978, Commonwealth law was applied. When, some years later, foreign asylum-seekers began to land on the islands, the islands were, somewhat controversially, excised from Aus- tralia's migration zone. An important body of Australian law, the statutory regime relating to consideration and review of applications for refugee status, no longer applied to the islands. Antartica The story now moves south, to the Southern Ocean. Again, Australian acquisition came via Britain. Aust- ralian scientists such as Sir Douglas Mawson had been members of early Antarctic expeditions and Mawson led an Australian expedition as early as 1911. In 1930, Mawson proclaimed British sovereignty over a large area of Antarctica. A further proclamation was made in 1931. Australian interest focused on the economic potential of the region: natural resources including whales and possibly minerals, rather than security concerns. In 1933, a British Order in Council placed British Antarctic territory under the authority of Australia and, after the Australian Antarctic Territory Acceptance Act 1933 was passed, the necessary Aust- ralian proclamation was made in 1936. Australia now had a territory not much smaller in size than the Australian mainland. The Australian Antarctic Territory Act 1954 applied the laws of the ACT to the Antarctic Territory. However, growing international int- erest in the Antarctic continent led to re-examination of the legal basis for Britain's and Australia's territorial claims. Other nations, including the US, challenged national claims to Antarctica. The Antarctic Treaty, which came into force in1961, effec- tively ''froze'' all territorial claims. Heard and McDonald islands Also south, but not as far as the Antarctic, is a small group of Indian Ocean islands, Heard Island and McDonald Islands. The islands lie well north of the area covered by Mawson's proclamations of 1930 and 1931. Curiously, there is no record of any formal British claim to sovereignty, but a 1926 grant of a lease was taken as evidence of British sovereignty. Equal- ly curiously, and in sharp contrast to the formal processes previously fol- lowed for other territories, there are no formal instruments transferring auth- ority from Britain to Australia. In 1947, the Australian National Antarctic Research Expedition's chief executive read out a declaration of Australian intention ''to continue the occupation of these islands and to administer them as Australian ter- ritories''. In exchanges of notes between the two governments, the British government agreed that its sovereignty and rights in the islands had been transferred to Australia from that time. The Heard and McDonald Islands Act 1953 applied the laws of the ACT to the islands. In 1997, Australia successfully obtained inclusion of the islands on the World Heritage List, signifying international recognition of Australian sovereignty. Cocos Islands Developments in World War II, togeth- er with the subsequent development of civil aviation services, created interest in British islands in the Indian Ocean to the north-west of Australia. The Cocos group consists of 27 small coral islands about 2950km north-west of Perth. The previously uninhabited islands were occupied in 1826 and 1827 by two British adven- turers, Alexander Hare and John Clunies-Ross, the latter remaining in de facto ownership. The islands were proclaimed part of the British Domin- ions in 1857 and initially placed under the administration of the governor of Ceylon, later under the governor of the Straits Settlements. By an 1886 inden- ture, authority was formally vested in the Clunies-Ross family. In 1946, the islands became part of the colony of Singapore. Australian interest began during and after World War II, after an airstrip was built, allowing the islands to be used as a refuelling stop for flights to South Africa. Negotiations with Britain, how- ever, were complicated by political sensitivities and legal complexities. The local population was largely Malay and, under the White Australia policy, they would not be permitted residence in Australia. Legal options considered for the transfer included an Order in Council, but the validity of this course was thought to be uncertain because the British Straits Settlements (Repeal) Act 1946 provided for the government of the colony. While legislation was not initially favoured by British authorities (because it could give rise to contro- versial debate on immigration), they ultimately took the view that laws were necessary. Moreover, British auth- orities took the view that, because the British legislation would have to oper- ate in Australia, s4 of the Statute of Westminster now required a ''request and consent'' Act of the Australian Parliament. The Australian solicitor- general's view was different: the British Act ''would no doubt have to be applied by Australian courts, but possibly as part of the law of the United Kingdom, and not as part of the law of Australia''. The political desirability of making clear Australian consent was, however, recognised. The explanatory memorandum to the Cocos (Keeling) Islands (Request and Consent) Bill 1954 referred to both s4 of the Statute of Westminster and s122 of the Constitution. Both governments were sensitive about the immigration issue. The Australian minister for external affairs, in a letter to British authorities, offered a form of words to be used in any British parliamentary debate: ''It is not expected that any substantial num- ber of Cocos Islanders will desire to go to Australia but the Australian Govern- ment has indicated . . . that should any such applications be received they would be most sympathetically con- sidered.'' In fact, debate on the British legislation focused almost entirely on the citizenship issue. After the British legislation and the Cocos (Keeling) Islands Act 1955 were passed, the transfer was effected in November 1955. Transfer formalities were deliberately very low key. Australian authorities kept publicity to a mini- mum. In September 2001, the Cocos (Keeling) Islands were excised from Australia's migration zone. 2010]
PSI - September