The Port Phillip District of NSW and the Establishment of the State of Victoria

THE DISCOVERY OF PORT PHILLIP

Edmund Finn, a pioneer Irish journalist who used the pseudonym, Garryowen, published, in 1888, “The Chronicles of Early Melbourne, 1835 to 1852.” “Garryowen’s Melbourne” was a reprint of selected information from the chronicles and was published in 1967.

Finn reminds us that the first European sighting of this part of the continent was made by Lieutenant Hicks, a member of Captain Cook’s expedition in sighting the presently known Cape Everard in 1798. Further, Finn notes that Lieutenant Murray, a member of Bass’s coastal expedition, discovered Port Phillip Bay in 1802.

We are familiar of course, with the effort soon afterwards to establish a convict settlement at Sorrento. After abandonment of the settlement it appears that the exploratory trip of Hume and Hovell in 1824 was the ultimate prelude to the efforts of residents of Van Diemen’s land to establish themselves around Port Phillip.

BACKGROUND TO SETTLEMENT AT PORT PHILLIP

In “Historical Records of Victoria Vol. 1” is published a copy of a letter dated 25 June 1835 from John Batman to Sir George Arthur, Lieutenant Governor of Van Diemen’s Land.

He claimed, amongst other things, tha he and a Mr. J. T. Gellibrand in 1827 wrote to the Colonial Government of New South Wales seeking permission to occupy land at Port Phillip or Westernport.

Such permission was not granted but Batman organised a group that proceeded from Launceston landing at Port Phillip on 26 May 1835.

The group, becoming known as the Port Phillip Association, quickly negotiated a treaty for the purchase of 600,000 acres of land from the aborigines but the government rejected this treaty.

WHERE SHOULD CONTROL OF PORT PHILLIP LIE?

Again from “Historical Records of Victoria Vol. 1” we find that permission was given by Lord Glenelg in writing to Governor Richard Bourke in May 1836 to allow private settlement under guidance.

William Lonsdale, in September 1836, was appointed commander of a detachment of troops to be sent to Port Phillip and was given instructions on the civil administration of the district. In these instructions it was clear that his authority was subject to the Governor of New South Wales.

This information was not apparently available to the public as J. V. Thompson addressed 2 letters to Lord Glenelg in October and November 1836 respectively as to the control of Port Phillip.

He noted because of the huge distance of 600 to 700 miles from Sydney and the mountainous country along the route, the Port Phillip District could be more conveniently placed under the jurisdiction of the Government of Van Diemen’s Land.

The second letter was seemingly somewhat strident and noted the discovery of extensive and fine country near Portland Bay and the likelihood of Port Phillip settlement moving in that direction.

Finally he indicated such expansion as an argument for independence or annexation to Van Diemen’s Land.

SEPARATION AT LAST

The first indication of the news of the separation of the Port Phillip District from New South Wales was apparently found by accident.

Finn claims that he was perusing a summary of English news from London and found details of the passing of the Separation Bill by both Houses of Parliament in England.

He published that famous headline on Monday November 11, 1850 :- “Glorious News! Separation at Last!”

Superintendent La Trobe having received appropriate notification made a formal public announcement the next day on the hill in the now existing Flagstaff Gardens.

THE BORDER BETWEEN VICTORIA AND NEW SOUTH WALES

Some of us might remember that, during the Bolte years, there was an article in the Melbourne “Herald” newspaper asserting that it was intended that the northern border of Victoria be based on the Murrumbidgee River. It was alleged that the change occurred due to a ‘mistake’ in the Colonial Secretary’s office.

The Survey Practice Handbook Victoria Part 3 – Land Surveying Law and Administration (Published by Surveyors Board, Victoria 1989) gives us the lead as to what was the basis of the claim: –

* In 1840 Lord John Russell of the Colonial Office decided that for land management purposes the Colony of New South Wales should be divided into 3 districts, the southern of which was the Port Phillip District

* The Port Phillip District was described as bounded on the north and west by the southern boundary of the county of St. Vincent and the south western boundary of the county of Murray “as far as the River Murrumbidgee” and “from thence by the said River Murrumbidgee, the River Murray until the same reaches the South Australian Border.”

The author of the “Survey Practice Handbook” then explains that the foregoing definition includes in the Port Phillip District the Riverina and also the east coast and its hinterland as far north as Bateman’s Bay.

The boundaries of the Port Phillip District of New South Wales were defined in the Imperial Act 5 & 6 Vic., c76 of 30 July 1842 (“An Act for the Government of New South Wales and Van Diemen’s Land“) as follows: “ . . . . . . the boundary of the District of Port Phillip on the North and North-East shall be a straight line drawn from Cape Howe to the nearest source on the River Murray, and thence by the Course of that River to the Eastern Boundary of the Province of South Australia.”

This ‘mistake’ occurred a mere 2 years later. The Melbourne “Herald” article blamed a clerk in the Colonial Secretary’s office for the ‘mistake’ in documenting the enabling legislation. A dispassionate analysis would reveal that events since 1850 certainly show the wisdom behind the original 1840 decision.

As we know that: –

* The Murrumbidgee River would more equitably split the total area of the then colony of New South Wales, 
* The centre of official business of many residents in the Riverina has always been Melbourne 
* Railway services across the Murray River to places such as Deniliquin and Balranald were provided by Victoria 
* The regular bus service along the Murray River to Mildura services Balranald to this day and 
* Telstra has not been strictly bound by the border in providing its services.

The adopted but mainly ‘mistaken’ border is composed of 3 parts: –

* The Black – Allen Line 
* The Murray River between its headwaters at the Indi Springs and the border of New South Wales and 
* The part of the northern boundary of Victoria to the west of the New South Wales – South Australian border.

THE BLACK – ALLEN LINE

That line is the part of the north-eastern boundary of Victoria described in the early enabling legislation to the effect that: – “The boundary of the district of Port Phillip on the north and north-east shall be a straight line from Cape How(e) to the nearest source of the River Murray.”

The nearest source is accepted as Indi Springs.

The name has been rightly givin in honour of the ‘two Alexanders,’ Black and Allen who surveyed the line through the mountains and bush to establish the border in the 1870s.

In recent years survey teams have retraced at least part of the boundary, finding remains of original stone cairns and culminating in the establishment of a monument at Point Hicks. This monument was officially unveiled with great ceremony in 1993 by the Surveyors General of the 2 States.

An attempt to obtain heritage listing for this line is ongoing.

THE MURRAY RIVER BETWEEN ITS HEADWATERS AT THE INDI SPRINGS AND THE BORDER OF NEW SOUTH WALES

With over simplification it can be stated that the border is the southern boundary of the Murray River – the river is wholly situated within New South Wales.

The establishment of this border however has had its share of controversy with court cases intervening such that the respective Surveyors General produced a definitive statement as late as 1991.

Two court cases that clarified the situation are discussed in the said part 3 of “Survey Practice Handbook Victoria.” The following information is derived from such publication.

In May 1980 the Supreme Court unanimously determined that the northern boundary of Victoria is the top of the southern bank of the Murray River.

The case arose from an appeal against a murder conviction in New South Wales of a man whose body was found with one foot and a toe of the other in the water “the rest of his body being on land.”

The unsuccessful appeal was made on the basis that the trial should have taken place in Victoria.

If such a claim had convinced the court, the boundary might have been described as ‘vibrant;’ in drought conditions the boundary of Victoria would move north.

Two appeals were made but the High Court of Australia dismissed the case.

The other case, in October 1982, related to a farmer’s appeal as to the right of the State River and Water Supply Commission of Victoria to charge him for water usage from the Murray River.

The High Court of Australia dismissed his appeal that Beveridge Island, about 20 km south of Swan Hill, formed part of New South Wales.

Any visitor to the border region will notice that in New South Wales the private lands run to the water’s edge whereas in Victoria a 3 chain Crown Land reserve exists between the bank and the alienated lands to the south thereof.

With the law of accretion arising the border can shift into the Victorian reserve and theoretically, but extremely unlikely, into the private lands to the south.

On the other hand although the Murray River may move to the north Victoria cannot receive the benefit of accretion – the top of the southern bank as it was in 1855 unless there is evidence to the contrary.

THE PART OF THE NORTHERN BOUNDARY OF VICTORIA TO THE WEST OF THE NEW SOUTH WALES – SOUTH AUSTRALIAN BORDER

The production of the New South Wales – South Australian border across the Murray River falls to the east of the western boundary of Victoria. This will be discussed in a further article in this series.

For the section of the Murray River between Victoria and South Australia we are indebted to the same part of “Survey Practice Handbook.”

“The Solicitor-General in 1974 commented that common law would probably apply and on that basis the State boundary would be the centre thread of the River Murray as at 1842 and would not follow the southern bank.”

HOW IS THIS POSSIBLE?

There is a small town in Victoria that lies north of part of the Murray River yet its location is in accord with the foregoing notes. Study a good atlas.

“

Map of the Port Phillip District in 1840, after its Borders were Expanded
Source: Wikipedia Map by Stephen Bain

THE BORDER BETWEEN VICTORIA AND SOUTH AUSTRALIA

I remember reading, 20 or 30 years ago in “Encyclopaedia Britannica,” that international decisions as to boundaries between states or territories have been basically determined not by where the boundary is supposed to be but rather where it actually is.

Any good map will indicate that the eastern boundary of South Australia is not a straight line. It will show a ‘step’ to the west at the Murray River as one follows the map from north to south.

After consulting Wikipedia it seems that the Privy Council finally resolved the location of the western boundary of Victoria in 1914 by basically using those principles.

Of course there were other extenuating factors including the alienation of Crown lands by the Victorian Government in the years up to that time such that about 50% of the land in such strip (known as “The Disputed Territory”) was held in private hands.

There was misplacement in the range of about 3.5 kms in the location or 141st meridian of longitude, the intended border between the states. This was primarily due to the initial determination of the starting point at the coast for the meridian was made with inferior equipment.

The work of extending the line of the meridian to the Murray River was conducted through particularly trying conditions, such as lack of water, sandy desert, stock deaths – all capped off with a mutiny by staff members. The 2 surveyors involved both died at early ages, the physical efforts of the work being attributed thereto.

The Privy Council determination did require Victoria to pay South Australia £215,000, far less than sought by South Australia over the years.

One small sideline to the long lasting uncertainty was that when building the railway from Melbourne to Adelaide the station at Serviceton was constructed within Victoria, presumably upon the 141st meridian, and such was used for the changeover point for railway staff on trains travelling interstate.

The boundary has been resurveyed in recent years and historical marker/s placed as in the case of the Black – Allen line.

Various articles can be accessed on the Internet for those desirous of greater details.

THE PART OF THE NORTHERN BOUNDARY OF VICTORIA TO THE WEST OF THE NEW SOUTH WALES – SOUTH AUSTRALIA BORDER.

As discussed the production of the New South Wales – South Australian border across the Murray River falls to the east of the western boundary of Victoria.

For the section of the Murray River being the border between Victoria and South Australia we are indebted to the earlier cited Survey Practice Handbook Victoria Part 3 – Land Surveying Law and Administration: “The Solicitor-General in 1974 commented that common law would probably apply and on that basis the State boundary would be the centre thread of the River Murray as at 1842 and would not follow the southern bank.”” –

THE BORDER BETWEEN VICTORIA AND TASMANIA*

I begin by acknowledging with gratitude the consent of Dr. Gary Moore to the publication of this section of my article. The following is a layman’s condensed version of a paper titled:- “The Boundary Between Tasmania and Victoria: Uncertainties and Their Possible Resolution“

Dr. Moore delivered the paper at the Regional Conference of the Institution of Surveyors, Victoria in Launceston on Saturday, 1 March 2014.

The address was published in the journal of the Institution in April 2014 (“Traverse” No. 294).

I note also that since compilation of my original draft additional information has been kindly provided by Dr. Moore and included.

Captain Arthur Phillip was commissioned in 1787 as Governor of New South Wales, in terms, using Dr. Moore’s paraphrasing, to define the colony as “encompassing all of eastern Australia, from the top of Cape York to the bottom of Tasmania, and as far west as the 135th meridian of east longitude.”

As we know other colonies or provinces were subsequently created from parts of New South Wales.

Van Diemen’s Land, or Tasmania, became the first new separate colony in 1825 but no definition of the territorial extent was included in the Order in Council.

Governor Darling’s commission to the first Governor of Van Diemen’s Land defined Van Diemen’s land as comprising all its islands and territories lying to the Southward of Wilson’s Promontory in thirty-nine degrees and twelve minutes of latitude.

The latitude of 39 degrees and 12 minutes south cuts across Boundary Island in the Hogan Group about 6.5 km south of Wilson’s Promontory. In the early 1840s a more precise determination of the southern extremity of Wilson’s Promontory was established as 39 degrees 08 minutes and 18 seconds south.

In the first commission of Charles Fitzroy as governor of New South Wales in 1846 such state was referred to existing as far as latitude 40 degrees south. That latitude in fact cuts through both King and Flinders Islands.

Dr. Moore referred to various Acts of Parliament leading to the New South Wales Constitution Act of 1855 (current) adopting unchanged earlier legislation (assented to by Queen Victoria) relevantly providing that the southern boundary of New South Wales was at latitude 40 degrees south save and except the territories comprised in the Province of South Australia and the Colony of Victoria. The post federation New South Wales Constitution Act of 1902 adopted that same boundary.

Dr. Moore discussed further legislation and federal and state practices and offered Section 123 of the Commonwealth Constitution as a method of resolving the issue.

However he indicates the process as being particularly cumbersome and suggests judicial recognition of the boundary between Victoria and Tasmania at latitude 39 degrees 12 minutes.

He observes that latitude 39 degrees 12 minutes south, although not in accord with imperial prescriptions, has nonetheless been generally accepted in practice by all relevant Australian authorities.

As with the Victorian – South Australian border, Victoria seems to have reaped the benefit of an initial imprecise astronomical observation in locating the “southward boundary of Wilsons Promontory.”

For example to quote Dr. Moore:- “By the operation of the Offshore Constitutional Settlement of 1979, as relevantly and presently implemented by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) and the Petroleum (Submerged Lands) Act 1982 (Vic) (which of themselves do not change Victoria’s territorial boundaries), Victoria is largely empowered to regulate minerals and energy exploitation of its coastline as far south as latitude 39 degrees 12 minutes south. It is understood that the Bass Strait oil and gas fields lie to the north of that latitude.”

One would suppose by implication the general acceptance of latitude 39 degrees 12 minutes south, as the southern boundary of Victoria would place it as the northern boundary of Tasmania.

Under such circumstances one can assume:-

1. The southern boundary of Victoria has a partial land boundary but

2. `This land boundary is shared with Tasmania not New South Wales.

Note:

*This section of this paper is drawn from material to be found in Dr. Moore’s 2012 Ph.D thesis, which is entitled “State Limits: The Boundaries of Victoria and the Resolution of Boundary Uncertainties.”

WRITER’S QUERY

In composing this article, as a member of a profession other than the law, I have tended to muse over a far different scenario.

Let us consider that the Privy Council had considered the principle of Terra Nullus in perhaps 1820 and debunked it at that time.

I raise the question as to whether Batman’s Treaty might have been considered legally binding.

Contributed by Kevin Bourne – PPPG Member No. 1351

Sources:

“GARRYOWEN’S MELBOURNE – A Selection from The Chronicles of Early Melbourne, 1835 TO 1852 by Garryowen” – Edited by Margaret Weidenhofer (1967)	“Historical Records of Victoria – Volume 1 – Beginnings of Permanent Government“ Compiled by Public Records Office of Victoria (1981)