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Australian External Territories

Australian External TerritoriesAs a geographic and economic entity, Australia's territory ranges far beyond its continental borders. The remote offshore territories are located over thousands of kilometres of ocean within the Pacific, Indian and Southern Oceans and the Coral Sea in an expanse extending from Antarctica almost to the equator. The size of these territories varies greatly. The largest is the Australian Antarctic Territory covering almost 5.9 million square kilometers. The smallest, which are only 2 square kilometers, are in the Ashmore and Cartier Islands Territory off Western Australia. The most northerly Territory of Christmas Island is only 10 south of the equator and 1565 kilometers northwest from the nearest point of the Australian mainland at Northwest Cape. Its closest Australian neighbor is the Cocos (Keeling) Islands Territory, 900 kilometers to the southwest. Apart from Antarctica, the most isolated Australian territory is that of the Heard and McDonald Islands 4100 kilometers southwest of Perth.

The uninhabited external territories are generally considered to be

  1. Ashmore and Cartier Islands
  2. Coral Sea Islands
  3. Australian Antarctic Territory
  4. Heard and McDonald Islands.
Legislation of the federal Parliament only applies to these external territories if it is expressly stated to do so or if it is obvious from the legislation in question that it was intended to do so. Very few federal laws have been so expressed. There are two other sources of law governing these territories. First, Ordinances may be made by the Governor-General for the peace, order and good government of a particular territory.[dccii] Secondly, each of these external territories is expressly linked by statute to one of the internal territories so that, to the extent that there are no such federal laws or special Ordinances applying, the laws of that particular internal territory are deemed to be in force for the external territory as if the external territory forms part of the internal territory.

Each of the external territories owes its existence to an Act of the federal Parliament. These Acts contain the majority of provisions determining the legal and political structure applying in that external territory. Several important provisions in relation to the external territories exist outside the specific federal Act governing existence of the Territory. Section 15B(2) of the Acts Interpretation Act 1901 (Cth) deems any reference in a Commonwealth Act to a 'Territory' to include a reference to the 'coastal sea of the Territory' as if that coastal sea were a part of the relevant Territory. 'Coastal sea' is defined in s 15B(4) to be the territorial sea adjacent to the Territory. The territorial sea is the area 12 nautical miles offshore. Consequently the laws of the Commonwealth and the jurisdiction of the courts competent to hear matters relating to those laws extend throughout the relevant external territory and up to this limit.

Under s 122 of the Australian Constitution the federal Parliament retains authority to make laws for all territories including all external territories. This has been said to be a plenary power and that all that needs to be shown to support an exercise of this power in the form of a statute is that there is a sufficient nexus or connection between the law and the relevant Territory.[dclxxviii] It is a power that is sufficiently wide to allow the federal Parliament to make laws providing for the direct administration of a Territory and also to allow the federal Parliament to endow a Territory with separate political and administrative institutions and functions.[dclxxix] In this way the federal Parliament retains overall plenary power to make laws in respect of all its Territories as it sees fit, subject to any other inherent limitations contained in the Australian Constitution.

The Acts Interpretation Act 1901 (Cth) makes it clear that, except for the Christmas Islands and the Cocos (Keeling) Islands, legislation of the federal Parliament only applies to the external territories if it is expressly stated to do so or if it is obvious from the legislation in question that it was intended to do so. This position is restated in each of the relevant Acts governing the existence of each external territory (excluding the Christmas Islands and the Cocos (Keeling) Islands). In the case of the uninhabited external territories,[dclxxxiii] very few federal laws have been so expressed. In the case of the Christmas Islands and the Cocos (Keeling) Islands these Territories are defined as part of the definition of 'Australia' in the Acts Interpretation Act 1901 (Cth) and therefore all laws of Australia are applicable to these Territories unless specifically excluded.

Previously there were other external territories of Australia. The following table lists the territory and the period during which they were considered to be an external territory.

Territory from to
Papua 01 Sep 1906 16 Sep 1975
New Guinea 09 May 1921 16 Sep 1975
Nauru 17 Dec 1920 31 Dec 1968

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