South Australia v Victoria [1911] HCA 17

South Australia v Victoria [1911] HCA 17 - HCA 1911 case summary — Zoe

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also is very near its true position. The mouth of the Glenelg does not appear on either map. The third chart no further light on the matter. i In February 1839 Mr. John Arrowsmith, the well k geographer of that time, published a map of "The M: Portion of South Australia from the surveys of Captain Fli and of Colonel Light, Surveyor General (of South Austral copy of which has been shown to us since the trial), in whi . mouth of the Glenelg River is shown as lying to the West o! 141st meridian. In the year 1839, Sir George Gipps, then Governor of South Wales, instructed Mr. C. J. Tyers to proceed to Melbor and undertake certain surveys, as described in a memor: from the Governor to the Deputy Surveyor General dated September of that year. The circumstances which gave ri sending Mr. Tyers are thus stated in a despatch of 28th | tember 1840 from Governor Gipps to the Secretary of State "To the westward of Port Phillip, and near upon the confi of South Australia, is Portland Bay, where an unautho settlement was formed in 1835 by some gentlemen from Diemen's Land, in the same manner that the first unautl settlement was formed at Melbourne and Geelong by tl Phillip Association. The attention of the Government was to Portland Bay in 1839, and the necessity of forming a ment there manifested itself shortly afterwards, when tl was ascertained that stations had been established in tl country to the north of it, on the River Glenelg, visited b Thomas Mitchell in 1836, and by him called Australia F « An object, also, which presented itself of considerable in in this quarter, was to settle the position of the merit which separates the Province of South Australia from New Sou Wales ; and to ascertain on which side of that meridian the 141st degree of East longitude from Greenwich) the the River Glenelg was situated, the same having been ve differently placed by different authorities, particularly Arrowsmith and Sir Thomas Mitchell. "Upon this duty I despatched, in the month of 1839, Mr. Charles Tyers, a gentleman whose services I had.

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by a letter published in the Port Phillip Patriot in Sep ee : 1841, defending the accuracy of his own conclusion. (re Ge as unticipate for a moment to say that Arrowsmith adhered to estes osition, and in 1852 published another map which also v. the 141st meridian as being to the East of the mouth of oe lenelg. is the matter rested for some time. There was no settle- near the mouth of the Glenelg, and no immediate necessity arking the boundary. In 1844, however, settlement had iced in that direction from both sides, and the question of lary was raised by Captain Grey (afterwards Sir George 7), then Governor of South Australia, in a despatch to the retary of State, dated 30th September of that year, in which ted attention to the very imperfect manner in which the mm and western boundaries of that Province were then He pointed out that it would be extremely difficult "to mine with accuracy a number of points upon the earth's e through which the 141° of East longitude passes, and this ion could certainly only be executed at a cost which the mues of this Colony would for a long series of years be uate to defray ; but, even admitting that the position of 141° of East longitude had been accurately determined, it id still be necessary to define the boundary line by marks, ir and superintendence of which would be a constant of expense." He went on to say that both from advanc- ing settlement and from affrays which had taken place with the iginal natives the matter had ceased to be one of mere tical speculation, and recommended that the eastern boun- should be defined by natural land marks, which he indicated, of by a degree of longitude. The Secretary of State Lthe opinion of the Governors of New South Wales and 1m Australia on the matter. The Governor of New South in turn, invited the opinion of Mr. C. J. Latrobe, who was Superintendent of the District of Port Phillip, which had been in 1839, and which afterwards became the Colony of Vie- _ In his reply, dated 22nd December 1845, Mr. Latrobe | out that since the date of Governor Gipps' despatch the

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report to this Government from time to time the progress work. The survey was conducted by Mr. Wade, appointe the Government of New Soush Wales, and his assistant, appo by me, was Mr. E. R. White. They appear to have prose the work very well and very satisfactorily. 7 "TI transmit herewith for Your Lordship's information of all the correspondence that has passed between the Governments on this subject, together with a map of the b dary compiled from Mr. White's sketches, and a copy of proclamation recognizing that boundary as marked on | ground. p "Tt will be necessary to define at some early period that porti of the 141st meridian which crosses the Murray River, as banks of that stream are occupied by cattle and sheep stati both in this Colony and in New South Wales." : The enclosed map showed Mr. Wade's boundary line as sta from the point marked by that gentleman as stated in his rey to the West of the mouth of the Glenelg. On the same day the Colonial Secretary of South Austi sent to the Colonial Secretary of New South Wales a copy of proclamation, which he described as having been issued by tenant-Governor Robe in furtherance of Governor Fitzroy's gestion communicated in the Colonial Secretary's letter of 20tl October. ~ A verbal error occurred in the proclamation which was d corrected in a proclamation of 23rd December, and communics to the Governor of New South Wales and the Secretary of St By a despatch of 8th January 1848 to the Secretary of S Governor Fitzroy, after referring to previous correspondence « the subject between Governor Gipps and Lieutenant-Go Robe and to the resumption of the correspondence by him: summed it up by saying that : - "It was ultimately arranged ' a due North and South line should be run from a point on the s coast to the River Murray, sufficiently indicated on the groun greater or less intervals, according to the character of the cou traversed, by marked tree lines, surface lines, or piles of 'Lhe point where the 141st degree cuts the sea coast had

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South Australia of determining the boundary line betwe two Colonies was the most economical and expeditious, only a prolongation of the existing boundary between S Australia and Victoria," submitted that there were "doubts the identity of such line with the true geographical boun the Colony viz. the 141st meridian." He went on to point how the probable error might have arisen, and that, admitti to have been the best that science with the appliances available could effect, it fell far short of the accuracy ob by the use of telegraphic signals, and referred to the approa completion of telegraphic communication between Sydney Adelaide. Further correspondence followed, with the result that in | Messrs. Todd and Smalley, the Government Astronomers of $ Australia and New South Wales respectively, were instructe proceed to the Murray River and there ascertain the true loca of the 141st meridian as accurately as possible. On Sth Decei 1868 these gentlemen made their report, which certified that meridian line was "2 miles 19 chains East of the prolongation the present boundary line between Victoria and South , tralia" the North end of which was marked, and that the posit of the meridian had been permanently indicated by a substai brick pyramid. The meridian of this pyramid, known as and Smalley's line, was adopted by South Australia and South Wales as the boundary between those Colonies, and. appears from the latest calculations, some of which were on completed during the hearing of this case, that the probable in its position is, at most, a few hundred feet. ee In November 1869 the Chief Secretary of South Austr: addressed the Chief Secretary of Victoria, adverting to the that it was proposed to lay out roads "on the Victorian sit the boundary line" to meet those of South Australia, and gesting that before such steps were taken or a new map of V toria published it might be well for the Government of Vici to consider the fact of the line referred to being about 2} mil the west of the 141st meridian, which was fixed by the I Statute 4&5 Wm. IV. as the boundary of the new Colony of s Australia. He further suggested that it would appear desi

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established. 'The reference in colonial boundary cases practice, to the Committee of the Council for Trade and P tations. The Committee was not bound to follow any rule law, but no doubt advised the Sovereign to do what they th just and fair. It appears from an opinion given by Sir W. Murray (afterwards Lord Mansfield) on 5th November 1754, with to a second controversy between the Colonies of Connecticut Massachussets on a question of boundary, that it was n¢ practice of the Crown to disturb settlements of boundaries had been made between Colonies and acquiesced in for a able time, though originally made without authority. 1 would, perhaps, have been equally applicable to the determi: of such questions whether they were regarded as polit judicial. Sir W. Murray said : - "T am of opinion that in s the above mentioned boundary the Crown will not distw settlement by the two Provinces so long ago as 1713, and missioners appointed in 1708. I apprehend His Majesty confirm their agreement, which of itself is not binding upon Crown, but neither Province should be suffered to litigate an amicable compromise of doubtful boundarys. matter was gone into at large, in my apprehension the q should not now be suffered to be agitated between the Prox The agreement ought to stand unless there are objections to the part of the Crown in respect of the inhabitants, or the sovereignty, or upon any account whatsoever. But if the approves the agreement I think it is now too late for the p: to dispute it." ' It is evident that that very learned lawyer, who may be to have been fully acquainted with the rules then adopted the exercise of this branch of the Prerogative, assumed that such a settlement had been made, the de facto boundary ad should be regarded as presumably right until revised b Sovereign. Lord Hardwicke's opinion expressed in Penn v. Baltimore (1), already referred to, is to the same effect. It is also to be inferred, in my opinion, that in the exe of the Prerogative in such cases the Sovereign was guid (1) 1 Ves., 444.

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y of its powers. That is made abundantly clear in one of the t ca Maryland v. West Virginia (1). The Australian tution, on the other hand, limits the power of settling between States in boundary disputes, as in other cases, in which the matters in controversy can be determined 'application of recognized legal principles. Several deci- of the Supreme Court of the United States in State ry disputes were cited during the argument. In following guidance in the present case the distinction I have pointed st be kept in mind. I do not, however, propose to refer to rican cases. The language of the Commonwealth Con- in this respect is so entirely free from ambiguity that opinion no authorities are needed for its interpretation. inly says, and it clearly means, that whenever a question as to the position of a boundary line between two States ourt will have jurisdiction to entertain it, if the question in a controversy between the States which is capable of termined on recognized legal principles. already pointed out that in this case South Australia's is, in substance, for redress against the infringement of her 'of possession to land which she claims to be portion of her y. Whether the land in dispute is or is not portion of Australian territory will depend upon the position of the line which, according to recognized principles of law, d her territory on its eastern side at the time when her of complaint arose. Going back to its foundation her right upon a chain of Imperial Statutes. The boundaries are set the first of them, the 4 &5 Will. IV. ¢. 95, which authorized he Letters Patent under which the Colony was created. an authority than an Imperial Statute could alter the so laid down, and no Imperial Statute has altered Moreover, a title under Imperial Statute is of such high y that no agreement between the Governors of the concerned, nor any act of the King or his Ministers odify the rights created by the Statute, or restrict ise, unless power to so alter, modify, or restrict is ound in the Statute itself, or in some latter enactment _ (1) 217 USB. 1.

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the discovery of the error - or was South Australia entitled to disregard Wade's line and have the boundary moved eastward the position in which the most accurate methods of the pre day would place it, with the consequential right to possession the lands which Wade's line had erroneously enclosed w: Victorian territory. Those are the vital questions in this and the answer to them according to my view is embodied is observations which I have already made. The power to fi territorial boundaries must imply the power to fix them p manently. A boundary liable to re-adjustment on the discover of every new method or instrument -which ensures a nea approach to scientific accuracy in the ascertainment of meri of longitude is not the kind of boundary which the Bri Parliament had in mind in enacting the 4 & 5 Wm. IV. c. 95. the contrary, the language of the Statute, its subject matter a object and the conditions of Australian colonization at the when it was passed, all lead to the conclusion that the legislature intended to endow the British Government with full power ascertain and fix on the ground with all the accuracy attainal under the circumstances the true position of the 141st meric as the permanent line of demarcation between the sepai adjoining jurisdictions which it was the effect of the Statute: create. It was in pursuance of that power that the Bi Government by its officers laid down Wade's line and continu it afterwards to the River Murray. That line thereby and then - became the fixed boundary of the Province on its eastern side, as binding on South Australia ever afterwards as if it had described in express terms by the original Letters Pat Whether the King in Council could when the error was sul sequently discovered have entertained a claim on the part South Australia to have the error corrected it is not necessary to determine. It is plain from the evidence that at least since grant of self-government to the several Colonies of Australia #] British Government has always declined to exercise any such jurisdiction without the consent of both Colonies concern The power exercised by the King in such cases before that tin was a political, not a judicial, power. This Court, as I shown, has no power other than judicial. It has cognizan

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considerations, or by resort to rules of international law, icable to dependencies of the same Empire. ll important to observe that the Act of 4 & 5 Will. IV. c, nferring the power of His Majesty, required him both in lishment of Provinces and the fixation of their boundaries ith the advice of the Privy Council, which means in ional practice, with the advice of the Ministry of the | other words, the permitted declaration of the Royal in this instance to be, not an exercise of the Prerogative by the common law to govern the Colonies, but an act of ible administration on the part of the Imperial Govern- der parliamentary authority. It is quite clear, therefore, © prerogative power could derogate from the act of the rsuant to his legislative will with the concurrence of nt. gument, however, as to the Prerogative of the King in acting as a tribunal to determine disputes, went so far as intain that the settlement of inter-provincial boundaries, er a dispute arises, and however the Province is created overned, is always a political question, and if determined at st be determined exclusively by the King in Council. No h precedent or authority covers so wide a proposition. observations of the American Supreme Court were quoted our of the view, but they appear to me consistent with a jive meaning, and if not, then to be irreconcilable with nion of Lord Hardwicke L.C. The case of Penn v. Lord nore (1) is a guide on this and other material points of law for our determination. There the same objection was amely, that the King in Council alone had jurisdiction. rd Chancellor speaks of the "original jurisdiction" of ig and Council in boundary questions, compares it to trials mmotes or Lordships and observes (2): - " But in those where neither had jurisdiction over the other, it must be the King and Council ; and the King is to judge, though tt be a party ; this question often arising between the | and one Lord-Proprietor of a province in America: so in of the Marches, it must be determined in the King's

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te action in delimiting the boundary increased. Com- ner Bonney of South Australia called the attention of the rnor to the necessity of having the eastern boundary ap- nately defined as soon as possible. He pointed out three s, that the country was occupied for 70 miles from the that there were 12 or 14 settlers so close to the boundary create uncertainty as to liability for rents, thus causing loss venue, and lastly the fact of bad characters resorting to the le territory. utenant-Governor Robe then (22nd July 1846) communicated overnor Gipps enclosing part of Bonney's report, stating his ence in Bonney's views as to the desirability of an early mation of the boundary, and asking for suggestions for mal arrangements. to prevent the inconveniences com- until some definite and marked boundary could be deter- | on the spot. Even the time necessary to mark the lary without delay should, in his Excellency's opinion, be ed by temporary arrangement. vernor Fitzroy, who in the meantime had succeeded to the nment, obtained a report from Superintendent Latrobe on ibject. That gentleman again stated his concurrence with xecutive Council's conclusions already mentioned, but with v to the immediate definition of the boundary line said in that, whichever of the three points (Mitchell's, Tyers' or s'), which were variously thought to represent the 141st e, was taken, a true North and South line should be run to urray River. He seemed to prefer Tyers' point. Governor roy on 15th September 1846 replied to Lieutenant-Governor communicating the earlier views of the Executive Council Latrobe's suggestions. Lieutenant-Governor Robe replied th September 1846) drawing attention to several murders com- d in the vicinity of the undefined boundary, and expressing necessity of some measwres for a provisional adjustment of a of demareation, or for giving the local magistracy reciprocal fiction, until the question of boundary shall have been ly determined. rhile that letter was under consideration by the Governor of South Wales, Mr. Mundy, the Colonial Secretary of South

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ent of South Australia for that purpose, in consequence ich the position of the 141st degree had been "correctly ined" at a spot on the sea coast near the mouth of the x Glenelg, and therefrom northward as far as the 36th allel of South latitude, Governor Fitzroy of New South Wales d and proclaimed that the lines so marked should be deemed nstrued to be the boundary line between New South Wales jouth Australia "so far as the same extends." ]. Much argument - as I think unnecessary - has been directed he question, was this marking by Wade and White " pro- al"? Whatever may have been the mental reservations ir expert advisers, I am inclined to the view that the mors personally meant the line of the 141st meridian to be ly and finally determined and marked on the ground, if '0 far as possible, though they hoped that some more natural ndary would be fixed by a British Act of Parliament. But ab of it? It turns out that the marking was not accurate. legal boundary is at one place, and the marked boundary is swo miles to the West. 'The Governors could not bind anyone their marks. The proclamations issued by the Governors are not in any conclusive. There is no estoppel, whether by record or by ment or otherwise. There is nothing to prevent any litigant showing where the 141st meridian truly is, in any case in the precise position becomes material. 9. The line as marked was marked (I may assume) under the uutive powers of the Crown. But all executive powers are rdinate to laws made by Parliament. If Parliament says 141st degree, the Executive cannot make the boundary two les more to the West. ; 20. It is, to my mind, a mistake to say that there was any ment between the Governors as to the boundary. There ; merely co-operation between them in an effort to ascertain |mark the 141st meridian. The only agreement, if any, was to the expenses of Wade and White. The Governors were wners ; but, even as between owners who employ a man to t a boundary fence between them, a mistake made by him ot preclude the owner whose land is affected by the mistake

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Judgment (376 paragraphs)