State limits: the boundaries of Victoria and the resolution of boundary uncertainties

2016-12-05T05:19:31Z (GMT) by Moore, Garry Kenneth
'[T]o prevent every subject of discord, every occasion of quarrel, the limits of territories ought to be marked with clearness and precision'. So wrote the renowned Swiss legal theorist, Emer de Vattel, in 1797. However, a close historical examination of the boundaries of the State of Victoria reveals that the limits of Victorian territory were laid down with anything but clearness or precision. The external boundaries of Victoria are to be found on the southern, western and northern margins of the State. In the south, they extend around Victoria's ocean coastline from Cape Howe in the east to Discovery Bay in the west. The State's western boundary runs from Discovery Bay in the south to the Murray River in the north. Victoria's northern boundaries commence at Cape Howe and proceed in a straight line north westward to the nearest source of the Murray to that Cape. They then follow the Murray as it winds its way downstream to South Australia. This Thesis traces the making and marking of Victoria's boundaries. Although firmly grounded in law, it draws on a range of other disciplines, including history, geography, geomorphology and spatial science. The Thesis examines the boundaries consecutively in the order in which they were first laid down. Commencing with those in the south, it then moves to the western boundary before finally dealing with the State's northern boundaries. Victoria's boundaries find their ongms m a senes of Imperial prescriptions embodied in British legislation and subordinate legislation, and in Colonial Governors' Commission which issued in the exercise of the Royal prerogative. Rather than settling the proper locations of Victoria's boundaries as intended, the Imperial prescriptions have generated both uncertainty and controversy over many years. Notwithstanding a number of important decisions of the Privy Council and the High Court, this Thesis demonstrates that significant uncertainty still surrounds elements in the boundary prescriptions. Uncertainty is not confined to Victoria's boundary prescriptions. It also extends to the location at which much of the State's western boundary is presently marked on the ground, a location which has been widely perceived to have been finally fixed by the decision of the Judicial Committee of the Privy Council in South Australia v Victoria (1914) 18 CLR 115. This uncertainty, too, is explored in detail in the Thesis. Having identified and examined the uncertainties which are still apparent on Victoria's southern, western and northern boundaries, the Thesis concludes by looking at whether the doctrine of prescription and acquiescence may be applied to resolve some or all of them.