Netthem, Garth --- "Carlemo Kelly Wacando v The Commonwealth of Australia and the State of Queensland (Jurisdiction of Commonwealth and Queensland Parliaments - Torres Strait Islands - Colonial Boundaries Act 1895)" [1982] AboriginalLawB 6; (1982) 1(3) Aboriginal Law Bulletin 9

• Carlemo Kelly Wacando V The Commonwealth Of Australia And The State Of Queensland
• Jurisdiction Of Commonwealth And Queensland Parliaments-Torres Strait Islands-Colonial Boundaries Act 1895.

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Carlemo Kelly Wacando v The Commonwealth of Australia and the State of Queensland

Jurisdiction of Commonwealth and Queensland Parliaments - Torres Strait Islands - Colonial Boundaries Act 1895.

Carlemo Kelly Wacando v The Commonwealth of Australia and the State of Queensland

High Court of Australia

12 November 1981.

Casenote by Garth Nettheim

The plaintiff sought declarations that Darnley Island in the Torres Strait was not legally part of Queensland or Australia and was, therefore, not subject to Queensland or Commonwealth legislation. In particular he asserted a right to engage in beche-de-mer fishing and petroleum exploration in the area without complying with various Commonwealth and Queensland Acts. The case came before the High Court by case stated procedure, and the Court held that the plaintiff had locus standi to bring the action.

But the action itself failed. The plaintiff's argument was based on what Murphy J described as 'gross inconsistencies and ludicrous errors of geographical description in important State documents' dealing with the boundaries of Queensland in the latter part of the nineteenth century, but all members of the Court held that the problems had been effectively resolved by the Colonial Boundaries Act 1895 (Imp.).

In his judgment, Murphy J indicated that he concurred only on the basis of assumptions which he regarded as questionable. His judgement is brief and worth quoting in full:

In the Treaty of Tordesillas (1494) the Portuguese and Spanish claimed to divide between them the non-European world (see Encyclopedia Brittanica (1969) Vol. 20 p. 1094). Under this disposition the Eastern half of Australia and Darnley Island apparently belonged to Spain. The arrogance of the European powers continued into and throughout the nineteenth century and the British were no exception. Around the world land was claimed under the false pretence that it was unoccupied or terra nullius . (see Western Sahara Case (1975) I.C.J. 6; Cooper v Stuart [1889] UKLawRpAC 7; (1889) 14 App. Cas. 286, 291; Coe v. The Commonwealth of Australia [1979] HCA 68; (1979) 24 A.L.R. 118). Islands off the Australian mainland were annexed or abandoned without reference to the inhabitants. The cavalier way in which the British authorities dealt with the affairs of the Australian colonies is evidenced by gross inconsistencies and ludicrous errors of geographical description in important State documents referred to in the hearing.

The eighteenth century pretensions of the British authorities to make law for other peoples aroused resistance by the American colonies which culminated in the War of Independence. Although these pretensions (like those of the Stuart Kings) have been progressively modified and now seem unacceptable to many, they provide the basis of the assumptions on which this case was argued. The extent to which at the end of the nineteenth century the representative institutions in the colonies were autonomous, and other fundamental questions, were hardly explored. On these assumptions however, it follows that the application of the Colonial Boundaries Act 1895 (Imp.) disposes of the plaintiffs claim that Darnley Island is not part of Queensland. I agree with Mr Justice Mason that the colonies could in the nineteenth century make laws which had extraterritorial operation. The plaintiff has standing.

I agree with the order proposed by the Chief Justice.