Legal database - View: Cases: New South Wales v Commonwealth

New South Wales and Others v Commonwealth
135 CLR 337

(Judgment by: Gibbs J)

New South Wales and Others
vCommonwealth

Court:

High Court of Australia

Judges: Barwick CJ
McTiernan J

Gibbs J Stephen J
Mason J
Jacobs J
Murphy J

Legislative References:
Judiciary Act 1903 - s 18
Territorial Waters Jurisdiction Act 1878 - The Act
Seas and Submerged Lands Act 1973 - The Act
Federal Council of Australasia Act 1885 - s 15
Australian Constitutions Act 1850 - s 1
New South Wales Constitution Act 1855 - s 7
Australian Colonies Act 1861 - s 2
Colonial Boundaries Act 1895 - s 2
Statute of Westminster (Adoption) Act 1942 - The Act

Case References:
Airlines of New South Wales Pty Ltd v State of New South Wales (No 2) - (1965) 113 CLR 54; [1965] ALR 984
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers Case) - (1920) 26 ALR 337; 28 CLR 129
Attorney-General (Com) v Colonial Sugar Refining Co Ltd - (1913) 17 CLR 644
Attorney-General (NSW) v Brown - (1847) Legge 312
Attorney-General for British Columbia v Attorney-General for Canada - [1914] AC 153
Attorney-General for Canada v Attorney-General for Province of Quebec - [1921] 1 AC 413
Attorney-General for New South Wales v Butterworth & amp; Co (Aust) Ltd - (1938) 38 SR (NSW) 195
Attorney-General for Victoria (at the relation of Dale) v Commonwealth - (1945) 71 CLR 237
Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd - [1915] AC 599; [1914-15] All ER Rep 444
Attorney-General of the Commonwealth v Schmidt - (1961) 105 CLR 361
Attorney-General v Chambers - (1854) 4 De G M & G 206; [1843-60] All ER Rep 941
Attorney-General v Hanmer - (1858) 27 LJ Eq 837
Attorney-General v Reeve - (1885) 1 TLR 675
Benest v Pipon - (1829) 1 Knapp 60; 12 ER 243
Blackpool Pier Co Ltd v Fylde Union Assessment Committee - (1877) 41 JP 344
Blundell v Catterall - (1821) 5 B & Ald 268; 106 ER 1190
Bonser v La Macchia - (1969) 122 CLR 177; [1969] ALR 741
Brinckman v Matley - [1904] 2 Ch 313; [1904-7] All ER Rep 941
Broken Hill South Ltd v Commissioner of Taxation (NSW) - [1937] ALR 221; 56 CLR 337
Bruce v Moore ; Ex parte Moore - [1911] St R Qd 57
Canada v Ontario - [1937] AC 326
Carr v Fracis Times & amp; Co - [1902] AC 176
Chapman & amp; Co Ltd v Rose - [1914] St R Qd 302
Coastal Shipping Commission v O'Reilly - (1962) 107 CLR 46; [1962] ALR 502
Commissioner of Taxation v Cam & amp; Sons - (1936) 36 SR (NSW) 544
Commonwealth v New South Wales - (1923) 33 CLR 1; 29 ALR 401
Croft v Dunphy - [1933] AC 156; [1932] All ER Rep 154
D v Commissioner of Taxes - [1941] St R Qd 218
Duchess of Sutherland v Watson - (1868) 6 SC 199
Duff Development Co Ltd v Government of Kelantan - [1924] AC 797; [1924] All ER Rep 1
Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd - [1940] ALR 216; 63 CLR 278
Fishwick v Cleland - (1960) 106 CLR 186; [1961] ALR 147
Gammell v Commissioners of Woods and Forests - (1859) 3 Macq 419
Gann v Free Fishers of Whitstable - (1865) 11 HL Cas 192; 11 ER 1305
Gifford v Lord Yarborough - (1828) 5 Bing 163; 130 ER 1023
Giles v Tumminello - [1963] SASR 96
Harris v Owner of the Steamship Franconia - (1877) 2 CPD 173; 46 LJCL 363
II v Miller - [1926] AC 518
Ipswich Dock Commissioners v Overseers of St Peter Ipswich - (1866) 7 B & amp; S 310
Iron Screw Collier Co v Schurmanns - (1860) 1 J & amp; H 180; 70 ER 712
Kingston v Gadd - (1901) 27 VLR 417
Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick - [1892] AC 437
Lord Advocate v Clyde Navigation Trustees - (1891) 19 SC 174
Lord Advocate v Wemyss - [1900] AC 48
Lord Fitzhardinge v Purcell - [1908] 2 Ch 139
Macleod v Attorney-General for New South Wales - [1891] AC 455
Merchant Service Guild of Australasia v Commonwealth Steamship Owners Assoc - (1913) 16 CLR 664; 19 ALR 450
Merchant Shipping Guild of Australasia v Archibald Currie Pty Ltd - (1908) 5 CLR 737; 14 ALR 438
New South Wales v Commonwealth - (1932) 46 CLR 155; [1932] ALR 245
Nyali Ltd v Attorney-General - [1956] 1 QB 1; [1955] 1 All ER 646
Ontario Mining Co Ltd v Seybold - [1903] AC 73
Parker v Lord Advocate - [1904] AC 364
Peninsular & Oriental Steam Navigation Co v Kingston - [1903] AC 471
Phillips v Eyre - (1870) LR 6 QB 1
Post Office v Estuary Radio Ltd - [1968] 2 QB 740; [1967] 3 All ER 663
R v Bull - (1974) 48 ALJR 232
R v Burgess ; Ex parte Henry - (1936) 55 CLR 608; [1936] ALR 482
R v Christian - [1924] AD 101
R v Forty-nine Casks of Brandy - (1836) 3 Hag Adm 257; 166 ER 401
R v Keyn - (1876) LR 2 Ex D 63
R v Kidman - (1915) 20 CLR 425
R v Public Vehicles Licensing Appeal Tribunal of the State of Tasmania; Ex parte Australian National Airways Pty Ltd - (1964) 113 CLR 207
R v Sharkey - (1947) 79 CLR 121
Reference re Ownership of Off-Shore Mineral Rights - (1968) 65 DLR (2d) 253
Robtelmes v Brenan - (1906) 4 CLR 395; 13 ALR 168
Rolet v R - (1866) LR 1 PC 198
Salaman v Secretary of State in Council of India - [1906] 1 KB 613
Sammut v Strickland - [1938] AC 678; [1938] 3 All ER 693
Saskatchewan Natural Resources Reference - [1931] 1 DLR 865; [1932] AC 28
Secretary of State for India in Council v Chelikani Rama Rao - (1916) LR 43 Ind App 192
Secretary of State for India v Sardar Rustam Khan - [1941] 2 All ER 606; [1941] AC 356
Service Guild of Australasia v Archibald Currie & amp; Co Pty Ltd - (1908) 5 CLR 737
Shively v Bowlby - (1893) 152 US 1
South Australia v Victoria - (1911) 12 CLR 667; 17 ALR 207
State of Victoria v Commonwealth - (1975) 7 ALR 277
Teori Tau v Commonwealth - (1969) 119 CLR 564
Theodore v Duncan - [1919] AC 696
United States v California - (1947) 332 US 19
United States v California - 332 US 19
United States v Curtiss-Wright Export Corporation - (1936) 299 US 304
United States v Louisiana - (1950) 339 US 699 and
United States v Maine - (1975) 43 LW 4359
United States v Texas - (1950) 399 US 707
United States v Louisiana - (1950) 339 US 699 and
William Holyman & Sons v Eyles - [1947] Tas SR 11
Williams v Attorney-General for New South Wales - (1913) 16 CLR 404; 19 ALR 378
Woolley v Attorney-General of Victoria - (1877) 2 App Cas 163
united States v Louisiana - (1950) 339 US 699

Hearing date: March-April 1975
Judgment date: 17 December 1975

Sydney

Judgment by:
Gibbs J

In these proceedings, respectively brought by each of the six States against the Commonwealth, we are called upon to decide whether the Seas and Submerged Lands Act 1973 (the Act) is a valid law of the Commonwealth.

The Act and the Geneva Conventions

The Act contains three main sections to which its other provisions may properly be regarded as incidental. These three sections deal respectively with sovereignty in respect of the territorial sea, sovereignty in respect of internal waters and sovereign rights in respect of the continental shelf.

Section 6, which deals with the territorial sea, reads as follows: "It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth."

The expression "the territorial sea" means "the territorial sea of Australia" (s 5). No further definition of the term is attempted by the Act. However, the Governor-General is given power by proclamation to declare, not inconsistently with s II of Pt I of the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea, and for the purposes of such a proclamation he may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea, or of any part of it, is to be measured (s 7).

Section 10 deals with internal waters. It provides as follows: "It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth."

In the Act, the term "continental shelf" has the same meaning as in the Convention on the Continental Shelf (s 3(1)). Article 1 of that convention defines the term as follows:--

For the purpose of these articles, the term 'continental shelf' is used as referring (a) to the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the sea-bed and subsoil of similar submarine areas adjacent to the coasts of islands.

By s 11 of the Act, it is provided: "It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in rights of the Commonwealth."

The Governor-General has power by proclamation to declare, not inconsistently with the Convention on the Continental Shelf or any relevant international agreement to which Australia is a party, the limits of the whole or any part of the continental shelf of Australia (s 12).

The Act contains three saving provisions in ss 14, 15 and 16. Those sections read as follows:--

14.

Nothing in this part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and --

(a): were, on 1st January, 1901, within the limits of a State; and
(b): remain within the limits of the State, or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters.

15.

Nothing in this Part shall be taken to vest in the Crown in rights of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works.

16.

The preceding provisions of this Part --

(a): do not limit or exclude the operation of any law of the Commonwealth or of a Territory in force at the date of commencement of this Act or coming into force after that date; and
(b): do not limit or exclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part.

The Act recites that Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone and to the Convention on the Continental Shelf. Each of those conventions was signed at Geneva on 29 April 1958. A copy of each is contained in a Schedule to the Act. It is unnecessary to do more than give a brief indication of the nature of their provisions. The Convention on the Territorial Sea and the Contiguous Zone declares that the sovereignty of a State extends, beyond its land territory and its internal waters, to the territorial sea and to the airspace above it as well as to its bed and subsoil (s I of Pt I). The limits of the territorial sea are dealt with in s II of Pt I. Having regard to the provisions of s 10 of the Act it should perhaps be mentioned that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast, but in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured (arts 3, 4(1)). Ships of all States are to enjoy the right of innocent passage which is defined and regulated by s III. A coastal State is given the right to exercise, in a zone of the high seas contiguous to its territorial sea, the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea or punish any such infringement committed within its territory or territorial sea (Pt II).

By the Convention on the Continental Shelf it is provided that the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources (art 2(1)). The rights of the coastal State over the continental shelf which are defined and qualified by other provisions of the convention, do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters (art 3).

Before it can be decided whether the Act is valid, it is necessary to determine its true meaning. Sections 6 and 10 speak of "sovereignty". That word is at best imprecise, but when used in relation to a federation it assumes protean qualities. No one can doubt that, for the purposes of international law, Australia is now a sovereign State. It is "a nation which governs itself by its own authority and laws without dependence on any foreign power" (see Duff Development Co Ltd v Government of Kelantan [1924] AC 797 at 807; ; [1924] All ER Rep 1 at 5-6, where a passage from Vattel is cited). However, for the purposes of the municipal law of Australia there exists that division of sovereign authority which is characteristic of, if not essential to, a federal constitution. All the powers of government are distributed between the Commonwealth and the States. The Convention on the Territorial Sea and the Contiguous Zone deals with sovereignty only for the purposes of international law. It recognizes that a coastal State is, for the purposes of international law, sovereign of the territorial sea as it is of its land territory and internal waters, but it is not concerned with the way in which the municipal law of any coastal State distributes its sovereignty or with the question where, according to the constitution and laws of any State, the powers of government are reposed. The convention recognizes that the sovereignty of Australia extends to its territorial sea; it says nothing as to whether that sovereignty is vested solely in the Commonwealth or is divided between the Commonwealth and the States.

If the Act did no more than echo the convention, and declared that for the purposes of international law the Commonwealth is the State recognized as the sovereign of the territorial sea, as it is of the land, there would be no doubt as to its validity. If the intention of the Act were merely to give effect to the convention, it would be natural to start with the assumption that "sovereignty" has the same meaning in the Act as in the convention. Hovever, there are a number of indications that the purpose of the Act is to do a great deal more than simply give effect to the convention. Sections 6 and 10 do not declare that the sovereignty of Australia extends beyond its land territory and its internal waters to the territorial sea; they declare and enact that the sovereignty in respect of the territorial sea and internal waters is vested in, and exercisable by, the Crown in right of the Commonwealth.

Although it is not very material, I should say that it appears to me that the words "vested in" govern "the crown in right of the Commonwealth" and not merely "the Commonwealth". The reference to "the Crown in right of the Commonwealth" indicates that the Act, unlike the convention, distinguishes between the position of the Commonwealth and the States. Section 14 also makes it clear that the Act is concerned with the Commonwealth not as a person at international law, but vis-a-vis the States. The sovereignty which the Act vests in the Crown in right of the Commonwealth is intended to carry with it the ownership of the sea-bed and subsoil; if this were not so, the provisions of s 15 would be unnecessary. Moreover, s 16 appears to assume that if it were not for the provisions of that section the operation of all State laws in the territorial sea and internal waters might be excluded. When the Act says that the Crown in right of the Commonwealth is sovereign, it does not mean only that when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail; it asserts an ampler sovereignty than that. The Act, on its proper construction, in effect declares that the Crown in right of the Commonwealth has plenary and unlimited powers over the territorial sea and internal waters, and is the owner of the sea-bed and subsoil beneath them.

When s 11 refers to "the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia", it does not anywhere indicate that those rights are to be limited by reference to the Convention on the Continental Shelf. The section in effect assumes that Australia has sovereign rights in respect of the continental shelf and vests those rights in, and makes them exercisable by, the Crown in right of the Commonwealth.

A final question of construction that arises is whether ss 6 and 10 intend to enable the Executive Government of the Commonwealth to exercise all the powers of sovereignty -- legislative, executive and judicial -- in respect of the territorial sea and internal waters. The use of the words "and exercisable by" after "is vested in" in those sections suggests that it was intended not only to assert sovereignty but also to give the Crown the right to exercise all the powers which belong to sovereignty. However, the expression "the Crown in right of the Commonwealth" does not naturally refer to the Governor-General or the Governor-General in Council. The Act itself, in ss 7 and 8, confers powers upon the Governor-General by that name and this strengthens the view that "the Crown" in the Act does not mean the Executive Government. In my opinion, the Act does not purport to confer legislative, executive and judicial powers on the Governor-General; its intention is to assert that the Crown in right of the Commonwealth is invested with, and may exercise, sovereignty over the territorial seas and internal waters. Further legislation would be necessary to enable any organ or instrumentality of the Commonwealth to exercise any specific power. On this view no question arises as to whether the Parliament has in effect abdicated its legislative power or has improperly commingled judicial and other powers.

Commonwealth Powers

In my opinion there is no doubt that the Act will be valid if, when it was passed, the territorial sea and internal waters (and the airspace above and the sea-bed and subsoil below them) were already subject to the sovereignty of the Crown in right of the Commonwealth, and the Crown in such right already had sovereign rights over the continental shelf. It cannot be doubted that the Parliament has power to declare the existence of sovereignty or sovereign rights that have previously become vested in the Crown in right of the Commonwealth. Further, the Crown in right of the Commonwealth had power to acquire sovereignty over the territorial sea and internal waters, and sovereign rights over the continental shelf, if that sovereignty and those sovereign rights were not already vested in the Crown in some other capacity, eg in right of the States, and the Parliament had power to legislate to give effect to such an acquisition. The Act will, however, be invalid in whole or in part if, when it was passed, the territorial sea or inland waters formed part of the territory of any of the States, or the States had rights of property in the bed and subsoil beneath those waters, or in the continental shelf.

In Post Office v Estuary Radio Ltd [1968] 2 QB 740 at 753 ; [1967] 3 All ER 663, Diplock LJ said: "It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of Parliament is not required." That statement, in my respectful opinion, correctly states the law. The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state. For statements and illustrations of this principle it is enough to refer to Salaman v Secretary of State in Council of India [1906] 1 KB 613, especially at 639-40Sobhuza II v Miller [1926] AC 518, and Secretary of State for India v Sardar Rustam Khan [1941] 2 All ER 606 ; [1941] AC 356, especially at 370-1. Those cases were concerned with the acquisition of territory on land but the same principle applies where the Crown, in the course of its relations with other nations, asserts sovereignty over an area of sea, or sovereign rights over the continental shelf, either pursuant to international treaty or even by unilateral action. The prerogatives of the Crown to acquire new territory or extend its sovereignty or jurisdiction are, in my opinion, available to the Crown in right of the Commonwealth.

An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of new sovereign rights over the continental shelf, might be effected by executive act, but might validly be authorized, ratified or given recognition by legislation. In my opinion, the power conferred upon the Parliament by s 51(xxix) to make laws with respect to external affairs would authorize legislation of that kind. It is quite unnecessary for present purposes to consider the difficult questions to which the words of s 51(xxix) can in some cases give rise. The extension of the sovereignty of the Commonwealth over territory, whether on land or at sea, which is not already part of the Commonwealth, is a matter that affects the external relations of the Commonwealth. An assertion of sovereignty in those circumstances would be entirely international in character and would not affect the rights of the States but would, on the other hand, involve the Commonwealth's relations with other nations. The same would, of course, be true of an assertion of sovereign rights in the continental shelf, assuming that to be no part of the territory of the States. Legislation which gave effect to an extension of sovereignty or sovereign rights in those circumstances would be legislation with respect to external affairs on the narrowest view of s 51(xxix). It would be unnecessary (but perhaps possible) also to justify such legislation by reference to the principle that Commonwealth powers extend to "whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government" ( Attorney-General for Victoria (at the relation of Dale) v Commonwealth (1945) 71 CLR 237 at 269 (see also at 266) ; [1945] ALR 435; and see State of Victoria v Commonwealth (1975) 7 ALR 277).

Once the Commonwealth had extended its sovereignty, or had newly acquired sovereign rights, it could make laws to provide in what organs the sovereignty and sovereign rights should be vested and by what instrumentalities the powers attendant on them might be exercised. Where new land territory is acquired, laws for the government of that territory would, it appears, be made under the power conferred by s 122 rather than that conferred by s 51(xxix): Fishwick v Cleland (1960) 106 CLR 186 at 197; ; [1961] ALR 147 at 150-1. However, I would gravely doubt whether s 122 provides a source of power to legislate for the government of an area of the ocean or of the continental shelf. A territory to which s 122 refers must be capable of representation in the Parliament and it is difficult to regard a tract of sea detached from the land as such a territory and impossible to treat the continental shelf as answering that description. However, it could not be doubted that the Parliament would have power to make laws for the exercise of the Commonwealth's sovereignty and sovereign rights over an area of sea or over the continental shelf; such power would arise either from s 51(xxix), s 51(xxxix) or from the status of the Commonwealth as a national government.

The position would, however, be entirely different if the territory over which the Commonwealth claimed sovereignty or sovereign rights was already part of the territory of a State. A law to divest powers from a State and vest them in the Commonwealth could not be regarded as a law with respect to external affairs; such a law would relate to the internal organization of the nation and not to its international relations. The existence of the Commonwealth as a state and the exercise of its functions as a national government do not enable it to alter at will the distribution of powers made by the Constitution. Moreover, it is well settled that the only power given by s 51 to make laws for the acquisition of property is that conferred by par (xxix), which is subject to the condition that the acquisition must be on just terms: Re Dohnert Muller Schmidt and Co ; Attorney-General of the Commonwealth v Schmidt (1961) 105 CLR 361 at 370-2; ; [1961] ALR 806 at 809-11. The power conferred by s 122 is not subject to a similar limitation: Teori Tau v Commonwealth (1969) 119 CLR 564; that, however, does not assist the Commonwealth in the present case. If, when the Act was passed, the sea-bed and subsoil under the territorial sea and internal waters formed part of the territory of the States, the Act, in so far as it purported to acquire without compensation proprietorial rights for the Commonwealth, would be plainly invalid.

It follows from what I have said that the Act cannot be justified as having been made for the purpose of carrying out or giving effect to the conventions. The external affairs power authorizes the Parliament to make a law for the purpose of carrying out or giving effect to a treaty, at least if the treaty is in reference to some matter indisputably international in character. The tests suggested in R v Burgess ; Ex parte Henry (1936) 55 CLR 608 ; [1936] ALR 482, for determining whether a statutory enactment is made for the purpose of carrying out or giving effect to a treaty are conveniently collected in the judgment of Menzies J in Airlines of New South Wales Pty Ltd v State of New South Wales (No 2 ) (1965) 113 CLR 54 at 141 ; [1965] ALR 984 at 1034. Whichever of those tests is applied, it should in my opinion be held that the Act was not made for such a purpose. As I have already pointed out, the conventions are not concerned with the manner in which the rights and powers granted by international law to coastal States are distributed by the municipal law of a coastal State which is a federation, whereas the principal object of the Act is to effect such a distribution for the purposes of the municipal law of Australia. The existence of the conventions no more justifies the Parliament in redistributing the powers of government in respect of the territorial waters of the Commonwealth than it would justify a redistribution of powers in respect of the land territory of the Commonwealth. Moreover, some important provisions of the conventions are not reproduced in the Act. A most significant omission is that of any reference to the right of innocent passage to which the sovereignty recognized by the Convention on the Territorial Sea and the Contiguous Zone is made subject. Similarly, the Act does not incorporate the limitations which the Convention on the Continental Shelf places on the sovereign rights of a coastal State over the continental shelf.

The questions raised in these cases as to the scope and nature of the powers of the Commonwealth are, in my opinion, neither difficult not doubtful. The difficult questions relate to the position of the States; they are whether, on 4 December 1973 when the Act was passed, the territorial sea and internal waters, and the bed and subsoil beneath them, and the continental shelf formed part of the territory of the States or whether the Crown in right of the States was then the owner of that bed and subsoil and of the continental shelf.

The Bed and Waters of the Territorial Sea

It is convenient first to consider whether by the law of England the territorial sea forms part of the territory of the Crown and whether the Crown is the owner of the bed of the sea between low-water mark and the outer limit of the territorial sea. (It is unnecessary, I think, to discuss separately the ownership of the subsoil, for if the Crown is the owner of the bed there can be no question that it is the owner of the subsoil as well.) These two questions, although related, are separate, and a decision that the territorial sea is not part of the territory of the Crown does not necessarily mean that the Crown is not the owner of the sea-bed. If these questions are answered in the affirmative it will become necessary to consider whether at federation the territorial sea adjacent to a colony was a part of the territory of the Imperial Crown, or part of the territory of the colony, and whether the bed of the territorial sea adjacent to a colony was owned by the Imperial Crown or by the Crown in right of the colony. If the entitlement was that of the Crown in right of the colony, the question will arise whether it now vests in the Crown in right of the State.

On behalf of the Commonwealth, much reliance was placed on R v Keyn (1876) 2 Ex D 63, which is said to establish that the territory of the Crown does not extend beyond the land mass, that is, below low-water mark. Before I discuss that case, I would turn to the decisions, given before R v Keyn , in which consideration was given to the proprietary rights of the Crown in respect of the bed of the sea.

The authorities, in my opinion, leave no doubt that according to the law of England the soil of the sea below low-water mark, adjoining the coasts of England or English territory, is the property of the Crown, unless a subject has acquired a right to it by grant or prescription. If there is room for debate it is as to how far out to sea the right of the Crown extends. That question must be answered by reference to English, not international law. I need not refer to past controversies or present disagreements as to the limits of the territorial sea. Great Britain and Australia now claim that the breadth of the territorial sea is one marine league -- it extends to the three-mile limit. Before the eighteenth century Britain's claims were more extensive. In some cases it has been unnecessary to consider or to decide to what distance seawards from low-water mark Crown ownership extends, but in my opinion it can now be taken as established that it extends to the three-mile limit.

The question whether the Crown owns the land below low-water mark fell for decision in the Privy Council in Benest v Pipon (1829) 1 Knapp 60 ; 12 ER 243. In that case the respondent, the lord of a manor, who claimed the exclusive right to cut seaweed growing on rocks below low-water mark off the coast of Jersey, obtained from the courts of Jersey an order granting him permission to notify the appellant that he should desist in future from going to the rocks and appropriating the seaweed, and ordering the appellant to pay damages and costs. On appeal to the Privy Council the judgment was reversed and a new trial directed because the respondent had failed to prove that he had acquired the right which he claimed, either by grant or prescription. Lord Wynford said (at 67-8; p 246 of ER): "The sea is the property of the King, and so is the land beneath it, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a subject has either had a grant from the King, or has exclusively used for so long a time as to confer on him a title by prescription .... This is the law of England, and the cases referred to prove that it is the law of Jersey."

In Attorney-General v Chambers (1854) 4 De G M & G 206 ; [1843-60] All ER Rep 941, a dispute arose between the Crown and certain landowners as to the ownership of minerals which lay under the sea and the contiguous seashore. It does not appear to have been disputed that the Crown was entitled to the minerals under the sea and the shore -- the question was how far landwards the Crown's rights to the seashore, and therefore the minerals, extended. However, Lord Cranworth LC in his judgment apparently regarded the concession that the Crown was entitled to the minerals under the sea as correctly made; he said (at 213; p 943 of All ER Rep): "What, in the absence of all evidence of particular usage, is the limit of the title of the Crown to the seashore? The Crown is clearly in such a case, according to all the authorities, entitled to the 'littus maris' as well as to the soil of the sea itself adjoining the coasts of England."

In Gammell v Commissioners of Woods and Forests (1859) 3 Macq 419, the House of Lords held that salmon fishings in the open sea round the coast of Scotland, unless parted with by grant, belonged exclusively to the Crown. It had been argued that the claim was too wide, because the fishings had no definite seaward limit. Lord Chelmsford LC disposed of this difficulty by holding that the right extended only to those modes of fishing which implied either the connexion of the apparatus with the coast, or the use and possession of the coast (see at 454-5). Lord Cranworth, after mentioning the doubts he had been caused by the indefinite nature of the claim, went on to say (at 465): "I think an observation that was made is not unentitled to considerable weight, namely, that if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the Crown, in England at least, to the bed of the sea, because that is undefined; yet nobody doubts that such a right exists." Lord Wensleydale expressed agreement with the Lord Chancellor's judgment and added (at 465-6): "... besides the limit he has stated of the fishing being connected with the coast, it may be worth while to observe that it would hardly be possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country, that which is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession."

The question was again discussed in the House of Lords in Gann v Free Fishers of Whitstable (1865) 11 HL Cas 192 ; 11 ER 1305. The company of Free Fishers, which had become entitled to a royalty of fishery and oyster dredging in "the arm of the sea which forms the estuary of the Thames, opposite to the manor of Whitstable in the open sea way, being the high road for the passage of vessels" (see at 208; p 1312 of ER), claimed to be entitled to exact tolls from vessels which anchored on the fishery below low-water mark. This claim succeeded in the Common Pleas and the Exchequer Chamber but failed in the House of Lords. Both of the courts below held that the Crown, being entitled to the soil of the sea-bed, could grant it to a subject and with it the right to charge a toll for anchoring upon it: see 11 CB (NS) 387 at 413; 142 ER 847 at 857, and 13 CB (NS) 853 at 857-60; 143 ER 337 at 339-40. In reversing the decisions below, the House of Lords did not deny that the Crown owned the soil of the sea-bed; they held that the grant by the Crown of any part of the soil below low-water mark was by the common law subject to the public right of navigation, of which the right to anchor is an essential part, and that no property could be claimed in the soil except subject to this overriding right (see at 209; p 1312 of ER). The remarks of the two members of the House, Lord Westbury LC and Lord Wensleydale, as to the property of the Crown in the bed of the sea, appear to have been confined to internal waters (see at 207, 201-211; pp 1312, 1313 of ER). However, the judgment of Lord Chelmsford was not so limited. He said (at 217-8; pp 1315-6 of ER): "The case of the respondents is very shortly and distinctly stated by Lord Chief Justice Erle in his judgment in this case. He says, 'The soil of the sea shore, to the extent of three miles from the beach, is vested in the Crown, and I am not aware of any rule of law which prevents the Crown from granting to a subject that which is vested in itself. If the Crown did grant the soil of the shore in question, it may well be that the right of taking an anchorage toll of 1s. was granted with it.'

"With great respect for the learned Chief Justice, I do not think it can be assumed as an unquestionable proposition of law, that, as between the Crown and its subjects, the sea shore, to the extent mentioned, is the property of the Crown in such an absolute sense as that a toll may be imposed upon a subject for the use of it in the regular course of navigation. In stating the right of the Crown in the sea shore, the text writers invariably confine it to the soil between high and low water mark. The three miles limit depends upon a rule of international law, by which every independent State is considered to have territorial property and jurisdiction in the seas which wash their coasts within the assumed distance of a cannon-shot from the shore. Whatever power this may impart with respect to foreigners, it may well be questioned whether the Crown's ownership in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation."

In Duchess of Sutherland v Watson (1868) 6 SC 199, the Court of Session had to consider the nature of the Crown's right to mussel scalps on the seashore of Scotland. In fact, according to the report, "the greater part of the scalps lay between high and low water mark" (see at 201). It is not altogether clear whether it was necessary to decide what rights the Crown had below low-water mark, but two members of the court stated that the solum of the sea adjoining the coast, and not merely the foreshore, belonged to the Crown (see at 209, 213).

It was at this stage of the development of the law that R v Keyn , supra was decided. Although that case was not primarily concerned with any question of Crown ownership of the sea-bed it does discuss that question, and it is convenient to refer to the decision now. The prisoner was a foreigner in command of a foreign ship, which, while passing within three miles of the English shore on a voyage to a foreign port, collided with a British ship causing the death by drowning of a passenger on that ship. He was charged with manslaughter. The question for the Court of Crown Cases Reserved was whether the Central Criminal Court had jurisdiction (see 2 Ex D at 64). A majority of seven of the 13 judges answered that question in the negative. There has been much debate as to the true ratio of the decision. It was clear that the Central Criminal Court had, for relevant purposes, only the jurisdiction formerly possessed by the Admiral. The majority of the court held that the Admiral had no jurisdiction to try offences (other than piracy) committed by foreigners on foreign ships at sea. Moreover, the majority considered that the effect of 13 Rich 2, c 5, was that the Admiral would have had no jurisdiction if the offence was committed "within the realm". The prosecution was thus in a dilemma which Cockburn CJ, who delivered the principal judgment for the majority, thus expressed (at 230): "To put this shortly. To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction of the admiral. But the admiral never had criminal jurisdiction over foreign ships on the high seas. How, when exercising the functions of a British judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorized by statute? On the other hand, if this sea is to be considered as territory, so as to make a foreigner within it liable to the law of England, it cannot come under the jurisdiction of the Admirality."

Thus, on the view taken by the majority, the Central Criminal Court lacked jurisdiction whether or not the sea within the three-mile limit formed part of the territory of England. In Harris v Owners of Franconia (1877) LR 2 CPD 173, Lord Coleridge CJ said (at 177) that the ratio decidendi of R v Keyn "is, that, for the purpose of jurisdiction (except where under special circumstances and in special Acts parliament has thought fit to extend it), the territory of England and the sovereignty of the Queen stops at low-water mark". However, in Secretary of State for India in Council v Chelikani Rama Rao (1916) LR 43 Ind App 192 at 199, Lord Shaw said that "That case had reference on its merits solely to the point as to the limits of admiralty jurisdiction; nothing else fell to be there decided". In my opinion it is apparent that a decision in R v Keyn could have been reached without deciding whether the territory of England stopped at low-water mark. In any case I find it surprising that it should be thought that a decision as to the jurisdiction of the Central Criminal Court, given by the narrowest of majorities after an extreme conflict of judicial opinion, should be treated as binding by this court in deciding a question as to the limits of the territory of the Australian States.

Of those judges who formed the majority in R v Keyn only Cockburn CJ discussed the question of the Crown's ownership of the sea-bed. He said (at 195) that there was "beyond question, ancient authority ... in abundance for the assertion that the bed of the sea is part of the realm of England, part of the territorial possessions of the Crown". However, he regarded those authorities as based on the doctrine that the Crown had sovereignty over the whole of the narrow seas and said (at 196) "that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was suggested to be consequent upon it must necessarily go with it". Taking this view it was still necessary for him to explain what he called "encroachments on the sea" such as harbours, piers, breakwaters and forts, and to deal with the question of the ownership of mines under the bed of the sea below low-water mark. He gave substantially the same explanation in both cases (at 199) as follows: "Beyond low-water mark the bed of the sea might ... be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier." This observation seems quite inconsistent with Benest v Pipon , supra, to which his Lordship did not refer. Indeed he mentioned only two of the cases decided on this question during the nineteenth century before R v Keyn , and then briefly and in a different context. He did refer to some of the remarks of Lord Wensleydale in Gammell v Commissioners of Woods and Forests , but said (at 227) that they were "wholly unnecessary to the question before the House". He also cited what was said by Erle CJ in Free Fishers and Dredgers of Whitstable v Gann and made the following comment (at 228): "The learned Lord Chief Justice overlooked the fact that the time when the grant was supposed to have been made was centuries before the idea of a three-mile belt of sea had been thought of ..." However, he did not refer to the judgments in the House of Lords in the Free Fishers Case . In my opinion the decisions which I have cited show that if the rule as to the Crown's ownership of the sea-bed was originally based on the doctrine that the Crown had sovereignty over the narrow seas, it survived the demise of that doctrine, and the three-mile limit came to be the limit of the Crown's property.

The current of authority as to the ownership of the sea-bed continued to run on in its former channel undeflected by the decision in R v Keyn . In three cases from Scotland question arose respectively as to whether the Crown had the right to prevent the deposit of dredgings in Loch Long, or to make a grant of minerals under the bed of the sea beyond the foreshores of the Firth of Forth, or to the property in mussel scalps on the foreshore and bed of the river Clyde: Lord Advocate v Clyde Navigation Trustees (1891) 19 SC 174 especially at 177; Lord Advocate v Wemyss [1900] AC 48Parker v Lord Advocate [1904] AC 364. In each case it was held that the Crown was the owner of the soil under the adjacent waters below the low-water mark, and it was said that the ownership extended to the three-mile limit, although in Lord Advocate v Wemyss Lord Watson (at 66) spoke of "the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit" being vested in the Crown. These cases were concerned with the law of Scotland, but they do not depend on principles peculiar to Scottish law, and in Parker v Lord Advocate the Earl of Halsbury LC said (at 368) that he thought that there was no relevant difference between the law of England and the law of Scotland. It appears that the cases related only to internal waters, although the judgments do not rest on that circumstance. Lord Fitzhardinge v Purcell [1908] 2 Ch 139 also concerned internal waters, this time in England, but in the course of his judgment Parker J said (at 166-7): "Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the Crown ... The whole doctrine of 'incrementa maris' seems to depend on the beneficial ownership of the Crown in the bed of the sea, which in the older authorities is sometimes referred to as the King's royal waste."

Although by this time it was no longer open to doubt that the Crown has a right of property in the bed of the sea below low-water mark, the question whether the right extended to the three-mile limit was left open by the Judicial Committee in two cases concerning fishing rights: Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 174-5, and Attorney-General for Canada v Attorney-General for Province of Quebec [1921] 1 AC 413 at 431. Their Lordships considered it inexpedient to pronounce upon the question, which in their opinion involved international relations and international law. Between the times when those two cases were heard the question had, however, arisen in two other matters that came before the Board. In Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599 ; [1914-15] All ER Rep 444, their Lordships had to consider the doctrine of accretion from the sea and in the course of their judgment (at 611) they spoke of "the Crown as owners of the sea and its bed within territorial limits, and of foreshore". In Secretary of State for India in Council v Chelikani Rama Rao , supra, islands had formed in the bed of the sea near the mouth of the river Godaveri, within three miles of the coast of Madras. The Governor of Madras in Council, by notification under the Act of Madras, constituted lands on the islands a reserved forest, but provision was made by the Act for persons claiming rights in the lands to have their claims considered. The respondents claimed the lands. Their claim failed; the Board held that the islands upon their formation became the property of the Crown and that the respondents had failed to establish adverse possession for 60 years. It is made quite clear throughout the judgment delivered by Lord Shaw that the reason why it was held that islands, when they appeared, were the property of the Crown was because the sea-bed from which they had risen was itself the property of the Crown and within British territory. Professor O'Connell in his article on "The Australian Maritime Domain" (1970) 44 ALJ 192, at 195-6, criticizes the decision, and says that its real basis should have been that islands formed within the territorial sea are subject to the sovereignty of the coastal State on the "portico" doctrine in The Anna (1805) 5 C Rob 373; 165 ER 809. However, the ground on which the Board actually rested its decision was that which I have stated. Lord Shaw said (at 201): "The Crown is the owner, and the owner in property, of islands arising in the sea within the territorial limits of the Indian Empire." Lord Shaw considered that the law as he had stated it was "supported by the preponderating considerations of practical convenience" (see at 203) -- a comment with which, with respect, I completely agree.

There is another aspect of the decision in Secretary of State for India in Council v Chelikani Rama Rao that may be mentioned immediately, although it relates to a different question which I shall later discuss. Lord Shaw said that the islands arose "within ... British territory" (at 199) and were the property of "the British Crown" (at 199, 203). These words were written at a time when India had still not attained responsible government. Further, it was not questioned that the Governor of Madras could effectively constitute the lands upon the islands a reserved forest; there was no suggestion that the power to deal with them could only be exercised in London.

Finally, in The Putbus [1969] P 136 ; [1969] 2 All ER 676, Phillimore LJ said (at p 155; p 683 of All ER): "The territorial waters of the United Kingdom are defined by the Territorial Waters Jurisdiction Act 1878 s 7 as any part of the open sea within one marine league of the coast measured from low-water mark. The Crown claims property in the soil of the sea under its territorial waters and also claims to be entitled to the mines and minerals under that soil: see Halsbury's Laws of England , 3rd ed, vol 39 (1962), p 556. It follows that if through negligence a ship is sunk in British territorial waters as a result of negligence with the result that it impedes access to an important waterway, the Crown would be entitled to remove it as interfering with a right and to recover the cost in damages for negligence."

Notwithstanding the doubts expressed by the Judicial Committee in the two appeals from Canada, there is in my opinion overwhelming authority in favour of the view that according to English law the Crown is the owner of the sea-bed from the low-water mark to the three-mile limit. The earlier dicta of Cockburn CJ to the contrary in v Keyn were erroneous.

The fact that the Crown owns the sea-bed supports the conclusion that the territorial sea itself is part of the territory of the Crown. The alternative, that although the sea-bed is part of the territory of the Crown the sea above it is not, seems incongruous. Other circumstances also support that conclusion. There is no doubt that the Parliament of the United Kingdom has power to enact legislation which operates over the area of the territorial sea. In R v Keyn , Cockburn CJ accepted that this was so (see 2 Ex D at 198, 207-8, 231) and another member of the majority, Lush J, went out of his way to emphasize that the competence of the Parliament to legislate in respect of the territorial sea is unfettered (see at 238-9). Of course the legislation of the Parliament of the United Kingdom can validly be given an extra-territorial operation and if the intention of the legislation is clear it is immaterial whether or not the law is characterized as extra-territorial. Where the legislation is that of a colony the distinction is material, because of the doctrine of extra-territorial incompetence which came to be evolved in relation to colonial legislatures, but the view taken by those concerned to advise on the validity of colonial legislation was that "there is jurisdiction over territorial waters because these are 'intra-territorial'": see per Stephen J in R v Bull (1974) 48 ALJR 232 at 259; ; 3 ALR 171 at 223-4, citing Professor O'Connell. The English courts were given jurisdiction to try offences committed by foreigners within territorial waters by the Territorial Waters Jurisdiction Act 1878 which, as the Earl of Halsbury LC said in Carr v Fracis Times & Co [1902] AC 176 at 181, reversed the judgment in R v Keyn . The colonial courts also exercised jurisdiction in respect of offences committed within the territorial sea; the various sources of that jurisdiction are discussed in W m Holyman & Sons Pty Ltd v Eyles [1947] Tas SR 11Giles v Tumminello [1963] SASR 96, and R v Bull . The circumstances that the Crown is the owner of the sea-bed and subsoil beneath the territorial sea, and that there is full legislative competence and curial jurisdiction over the territorial sea are enough to show that the territorial sea is part of the territory of the Crown, notwithstanding that by international law vessels of other nations have the right of innocent passage over it. Various theories have been expressed by learned writers on international law as to the nature of the right of a State over its territorial waters and not all writers concede that the coastal State has sovereignty: see Colombos, International Law of the Sea , 6th ed, p 88 et seq and O'Connell, International Law , 2nd ed, p 467 et seq However, by the beginning of the twentieth century the view accepted by leading writers in England was that a coastal State has sovereignty over its territorial waters: see Hall, International Law (1904) 5th ed, pp 152-3; Westlake, International Law (1904) vol 1, pp 183-4; Oppenheim, International Law (1905) vol 1, pp 239-40. It is this view of international law that, in my opinion, has come to be accepted by English law. There are three decisions of the highest authority that accord with the opinions that I have expressed and are contrary to the statements of the majority in R v Keyn . In Rolet v R (1866) LR 1 PC 198, where the question for decision was whether goods had been unladen from a ship within the colony of Sierra Leone, the Judicial Committee said the jurisdiction of that colony appeared to extend three miles seaward (see at 214) and went on to hold on the facts that when the goods were unshipped the vessel "was not beyond the three miles which form the limit of the jurisdiction of the Colony" (see at 216). Since as a matter of fact the vessel was beyond the three-mile limit when the goods were unloaded, it was not strictly necessary to decide how far the territorial limits of the colony extended, provided that they did not extend more than three miles, but the decision is at least authority that the low-water mark was not the limit of the colony, for if it had been the whole inquiry in the case would have been unnecessary. In Carr v Fracis Times & Co , supra, a British officer, who had seized ammunition in the territorial waters of Muscat, was sued in England for tort and claimed that his act was justifiable by the law of the place where it was committed. The seizure was held to be lawful by the law of Muscat and the question then became whether it had occurred within the territories of the Sultan of Muscat. The House of Lords answered this question in the affirmative. Lord Macnaghten said (at 182-3): "It was committed in the territorial waters of Muscat, which are, in my opinion, for this purpose, as much a part of the Sultan's dominions as the land over which he exercises absolute and unquestioned sway." In Secretary of State for India in Council v Chelikani Rama Rao , supra, the Privy Council, as I have already shown, accepted that the territorial waters are part of the territory of the Crown.

Much legislative and administrative practice, both in the United Kingdom and in the Australian colonies, during the latter part of the nineteenth century proceeded on the assumption that the territorial sea formed part of the territory of the Crown. I shall give some instances of this when I come to deal with the question whether the territorial sea formed part of the territory of the colonies, but it is convenient at this stage to refer to two important statutes passed by the Imperial Parliament before federation which clearly recognized that the territorial sea adjoining the Australian colonies was part of the territory of the Crown. By s 15 of the Federal Council of Australasia Act 1885 the Federal Council was given legislative authority in respect, inter alia , of the following matters:--

(c): Fisheries in Australasian waters beyond territorial limits;
(g): The custody of offenders on board ships belonging to Her Majesty's Colonial Governments beyond territorial limits.

The expression "territorial limits" in these provisions naturally meant the limits of the territorial waters of the colonies and it was so understood by the Federal Council in enacting the Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888 and the Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1889: see Bonser v La Macchia (1969) 122 CLR 177 at 203-4 ; [1969] ALR 741 at 757, per Kitto J. When the Constitution was enacted the words of s 15(c) of the Federal Council of Australasia Act 1885 were echoed in s 51(x) by which the Parliament was given power to make laws with respect to "Fisheries in Australian waters beyond territorial limits". It was held by five members of the court in Bonser v La Macchia that waters within three miles of the Australian shores are waters within "territorial limits" as those words are used in s 51(x). So construed the Constitution itself establishes that the territory of the Crown includes the territorial sea.

Imperial Crown and Crown in Right of the Colonies

However, the Commonwealth submits that before federation the sea-bed beneath the territorial sea was vested in the Imperial Crown, not in the Crown in right of any of the colonies, and that the territory of a colony did not include any part of its territorial sea. This submission is supported by the observations of Barwick CJ and Windeyer J in Bonser v La Macchia where, however, the question was not argued and did not fall for decision.

In Theodore v Duncan [1919] AC 696 at 706, Viscount Haldane said: "The Crown is one and indivisible throughout the Empire, and it acts in self-governing States on the initiative and advice of its own Ministers in these States." The question whether land belongs to the Crown in right of a colony, or, as it may be compendiously put, belongs to the colony, depends on whether the right to the beneficial use of the land or its proceeds has been appropriated to the colony and is subject to the control of its legislature, and, when the beneficial use of land or its proceeds has been appropriated to a colony, the right of disposing of the land only be exercised by the Crown under the advice of the Ministers of that colony: Ontario Mining Co Ltd v Seybold [1903] AC 73 at 79Saskatchewan Natural Resources Reference [1931] 1 DLR 865 at 877; ; [1932] AC 28 at 40 approved. It is therefore necessary to consider whether the legislatures of the Australian colonies immediately before federation had power to control the use of the territorial sea and of its bed and whether the rights of the Crown in relation to the territorial sea and the sea-bed were exercised on the advice of its Ministers in the colonies.

When each of the Australian colonies became self-governing the control of the waste lands of the Crown "in" or "within" the colony was vested in the colonial legislature: see New South Wales Government Act (1855) (18 & 19 Vict, c 54) s II, and Constitution Act s XLIII; Wastelands Act (1855) (18 & 19 Vict, c 56), ss V, VII; Constitution Act (1855) (Vic) s 54; Constitution Act of 1867 (Qld) s 30; Western Australia Constitution Act (1890) s 3. There is, in my opinion, much to be said in favour of the view that the lands under the territorial sea were just as mush waste lands of the Crown in or within the colony as were lands high-water mark. The legislature of Tasmania, at least, acted on that view: the Wastelands Act (1858) (Tas) s 32. But if the submarine lands were not technically waste lands of the Crown within the meaning of these statutes, the plenary powers of legislation conferred on the legislature of each colony when it attained self-government were wide enough to empower it to make laws for the control of the lands under the territorial sea and for the regulation of conduct on the territorial sea itself. In fact, before federation, the various colonies made laws for the establishment of harbours and the construction of wharves, jetties and breakwaters, the control of navigation and pilotage, the maintenance of lighthouse and lightships, the regulation of fishing, whaling and prawning, and of diving for pearl shell and beche-de-mer, the grant of oyster leases and licences to get marine fibres and sponges, and the grant of leases to enable mining to be carried out below low-water mark, and for customs and quarantine purposes. The validity of this legislation was not questioned by the courts or by the Imperial authorities in London. On the contrary, opinions given by the law officers in London, many of them lawyers of great distinction, consistently affirmed that the authority of the colonial legislatures, in Australia and elsewhere, extended for three marine miles from low-water mark: see O'Connell, Opinions on Imperial Constitutional Law (1971), especially at 123-5, 154-5, 159-60, 190-7. It might be possible to regard some of this legislation as extra-territorial but nevertheless sufficiently connected with the colony to be within power, but that cannot truly be said of all of it. For example, it seems to me that if the doctrine of extra-territorial incompetence were logically applied, and unless the waters within the three-mile limit were regarded as part of the colony, a colony would have no more right to prevent foreigners, in a foreign boat, from fishing in the territorial sea except under licence than it would to prevent them from hunting in a neighbouring colony. If the territorial sea is outside the colony, how can one justify legislation regulating the exploitation of the minerals under the sea-bed or the pearl-shell upon it?

Under the powers conferred by colonial statutes the Crown, on the advice of its colonial Ministers, did in fact dispose of interests in, and control the use of, the lands beneath the territorial sea. Leases were granted to enable mining to be carried out beneath the Pacific Ocean off the coast of New South Wales and licences were granted to fish for pearls and beche-de-mer in the waters of Queensland and Western Australia. Hundreds of wharves and jetties extending below low-water mark were built -- in the ocean, not only in internal waters -- particularly along the coasts of Queensland and Western Australia. It would have been absurd if the Crown's right to control the use of the sea-bed adjoining a colony -- for example the right to authorize the building of a pier or to grant an oyster lease -- could only have been exercised on the advice of Her Majesty's Ministers 12,000 miles away in London. The practical administrators in Whitehall did not descend to such absurdity. Once self-government had been granted to a colony neither the Imperial Parliament nor the Imperial Government sought to fetter the decisions of local administrators as to the use of the territorial sea or the sea-bed. It has been suggested that the territorial sea was of Imperial interest because of its importance from the point of view of security and defence. That, however, could not be said of the sea-bed, at least before federation; although today the security of a nation may be menaced from the bed of the sea, in the less complicated days of the nineteenth century the sea-bed had little to do with the security and defence of the states adjoining its coasts. No doubt forts might have been built on the sea-bed, but they could also be built on the land. Moreover, most of the matters that in fact arose in relation to the sea itself -- the control of fishing, for example -- had nothing to do with security or defence.

Before federation the territorial sea and lands beneath it were in fact subject to the control of the colonial legislatures. Of course the Imperial Parliament had power to pass legislation which, if repugnant to the laws of the colonies, would prevail over them, but that was equally true of legislation that related to the control of the land. Moreover, the right of disposing of interests in the sea-bed was in fact exercised by the Crown on the advice of the colonial Ministers. In Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 442 ; 19 ALR 378, Isaacs J said: "it is a mere truism to say that the title of the King to the lands of the Colony was in right of his Sovereignty of the Colony, in other words in right of the Colony." This observation is, in my opinion, equally true of the submarine lands beneath the territorial sea.

It was submitted on behalf of the Commonwealth that the boundaries of the Australian colonies did not extend below low-water mark and that accordingly the area of the territorial sea was never within the limits of any of the colonies. It would be unprofitable to examine the instruments which created the various Australian colonies and delimited their extent. Notwithstanding that in some instruments the word "territories" (which it was submitted on behalf of some of the States includes the territorial sea) was used, I am prepared to assume that the express words of the instruments in question did not include the territorial sea. However, the Crown was sovereign of the colony, and the territorial sea adjoining the colony was part of the territory of the Crown; the rights and property of the Crown to the territorial sea and its bed were exercised on the advice of the colonial Ministers, once the colony was self-governing, and were therefore held by the Crown in right of the colony. The effect of the doctrine that I have discussed at such length was that the description of the land territory of the colony necessarily connoted that the territorial sea was a part of the colony, and that the power of the colonial legislature extended over the territorial sea. As Isaacs J said in Merchant Service Guild of Australasia v Commonwealth Steamship Owners Association (1913) 16 CLR 664 at 690 ; 19 ALR 450: "But the grant of powers of self-government to a component portion of the Empire connotes, primarily, restriction of their exercise to the limits of the local territory and its adjacent sea limit as recognized universally and by Statute." Put in another way, the description of a colony as lands bounded by the sea is to be construed as including the territorial sea, in the same way that a description of parcels as bounded by a non-tidal river is construed prima facie as including so much of the river bed as lies between the bank and the middle of the stream. If what I have said is incorrect, it would be difficult to see on what principle internal waters came to be part of a colony. The waters of Port Jackson are no more within the express description contained in the instruments creating New South Wales than are the waters of the Pacific Ocean within three miles of the New South Wales coastline. However, in my opinion, a colony, although described only by reference to its land or its coast, received as part of its territory the sea and sea-bed within the three-mile limit; on the other hand, a colony, such as Tasmania, which comprised all "Islands and Territories" lying between lines on a map which encompassed large tracts of sea, could not claim that the sea formed part of its territory unless it was within a marine league from the coast or from an island within the bounded areas.

It is immaterial whether it was right to describe the colonies as sovereign states and equally immaterial that they were not internationally recognized as persons. The Crown was the sovereign. The territorial sea vested in the Crown, and the Crown's sovereignty was recognized internationally, if that matters, for, as I have already indicated, we have to apply English law, and are concerned with international law only if it has been accepted as part of English law. The question is, in what right did the Crown hold the territorial sea?

For the reasons I have given, I conclude that at the time of federation the bed of the territorial sea adjacent to each of the colonies was vested in the Crown in the right of that colony and that the territorial limits of the colony extended to the three-mile limit.

The Effect of Federation

Nothing that occurred on federation altered the pre-existing situation. That which had been the territory of the colonies became the territory of the States; the rights of the Crown in right of the colonies passed to the Crown in right of the States; the legislative powers of the colonies became exercisable by the State legislatures. For complete accuracy it would be necessary to qualify the generality of these statements by reference to such sections as ss 52, 85 and 90 of the Constitution but those sections have no relevance to the present case. Of course the territorial seas of the States became part of the Commonwealth, just as the land territories of the States became part of the Commonwealth, but that does not mean they ceased to be part of the territories of the States. The fact that the Parliament of the Commonwealth was given power to legislate with respect to external affairs meant only that a law validly made under that power would prevail over inconsistent State laws; the exercise of the power did not divest the States of their territories.

On the other hand, if I were wrong, and the territorial sea was a part of the territories of the Crown but not part of any of the colonies, and the sea-bed was vested in the Crown in its Imperial right, this situation would have remained unaltered on federation. If the territory of the colonies ended a low-water mark, the territory of the new Commonwealth, which was formed by the federation of the colonies, similarly ended there. The very arguments that would deny that the sea-bed was owned by the Crown in right of the colonies, would, if accepted, mean that immediately after federation it was not owned by the Crown in right of the Commonwealth. At the time of federation the Commonwealth was not an independent nation -- not a person recognized by international law. That remained the situation until after the First World War -- probably at least until after the Imperial Conference of 1926. At federation, and until the Statute of Westminster, the Commonwealth had no more power to enact legislation having extra-territorial operation than did any State. It is therefore significant that in cases decided soon after federation it was accepted that the territory of the Commonwealth extended to the three-mile limit: Robtelmes v Brenan (1906) 4 CLR 395 at 404 ; 13 ALR 168Merchant Service Guild of Australasia v Archibald Currie & Co Pty Ltd (1908) 5 CLR 737 at 744 ; 14 ALR 438. That could only have been the case if the territories of the States also extended to the three-mile limit.

The view that the territories of the States included the territorial sea has been accepted in a number of decisions in the Australian States: Bruce v Moore ; Ex parte Moore [1911] St R Qd 57Chapman & Co Ltd v Rose [1914] St R Qd 302 at 313, 319-20, 325Commissioner of Taxation v Cam & Sons Ltd (1936) 36 SR (NSW) 544 at 549. Those cases are consistent with Rolet v R, Carr v Fracis Times & Co , and Secretary of State for India in Council v Chelikani Rama Rao . The same view was taken by the majority of the court in D v Commissioner of Taxes [1941] St R Qd 218. However, in that case Philip J took a different view, being influenced, in my opinion wrongly, by what he regarded as the effect of R v Keyn (see at 228-9).

In my opinion the "territorial limits" referred to in s 51(x) of the Constitution were the territorial limits of the Commonwealth (which are in part, but not entirely, co-terminous with the territorial limits of the States). With the greatest respect, I am unable to agree with the views expressed in Bonser v La Macchia that the reference is to Imperial territorial limits.

There is a final matter that provides confirmation of the view that the territorial sea is not under the exclusive legislative control of the Commonwealth. It has consistently been held that the effect of s 51(i) and s 98 of the Constitution is to endow the Parliament, not with a substantive power to deal with navigation and shipping at large, but only with power to deal with that subject in so far as it is relevant to interstate and foreign trade and commerce: Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357 ; 27 ALR 373Morgan v The Commonwealth (1947) 74 CLR 421 at 455 ; [1947] ALR 161Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 at 54 ; [1962] ALR 502. If the territorial sea were part of the Commonwealth territory, and subject to plenary Commonwealth power, there would seem no reason why the Parliament could not deal with any navigation and shipping within the three-mile belt, including purely intrastate navigation and shipping.

The North American Authorities

It remains to consider some decisions of the Supreme Court of the United States and a decision of the Supreme Court of Canada. Judgments of those courts are, of course, not binding upon us, but we always consider them with the greatest respect.

In the United States competing claims by the United States and the States to the ownership and control of the adjacent seas and sea-bed have led to protracted litigation. In United States v California (1947) 332 US 19, it was held that the United States was the owner of, and possessed of paramount rights in and powers over, the submerged lands lying within three miles of the coast of California. The argument advanced on behalf of California, which also claimed the lands, raised two separate issues, although in discussion they are not kept altogether distinct. In the first place, California relied on the fact that its territorial boundary, as laid down in the Constitution which it adopted in 1849, and as ratified in the Enabling Act of 1850 by which it was admitted to the Union, included the waters of the sea extending three miles from the shore, and asserted that in consequence it was entitled to the ownership of the lands under that area of the sea. Secondly, by the Enabling Act, California was admitted to the Union on "an equal footing" with the other States, and it was claimed that the original 13 States had acquired ownership to the three-mile belt of water adjacent to their shores and the lands under it, and that California must therefore be accorded similar rights of ownership to enable it to stand on an equal footing with those 13 States. The court rejected the view that the 13 colonies had acquired ownership to the three-mile belt or the soil under it. The court said that when the 13 original colonies won their independence -- that is, in 1776, or at latest 1783 -- there was no international custom or understanding that a nation owned the three-mile belt of ocean adjacent to its shores, and that the international recognition during the nineteenth century of national rights in the territorial sea resulted in large part from the endeavours of the government of the United States (see at 32-4). In other words the court considered that in fact the United States accomplished the first acquisition of the three-mile belt (see at 34) -- an historical argument that has no application to the case of the Commonwealth. There was, however, a second ground for the decision, namely that protection and control of the three-mile belt "is a function of national external sovereignty" (at 34). Stated shortly, the view of the court on this aspect of the case would appear to be that the United States, which has the paramount responsibility for maintaining international relations, preserving peace and engaging in world commerce, must necessarily have the ownership of the three-mile belt, which is of vital importance for those purposes (see particularly the discussion at 35-8). By way of example, it was mentioned (at 35) that the "very oil about which the state and nation here contend might well become the subject of international dispute and settlement". Two comments may be permitted on this view. The first is that its correctness is not self-evident. Reed J, in the course of rejecting the view of the majority, said (at 42-3): "This ownership in California would not interfere in any way with the needs or rights of the United States in War or peace. The power of the United States is plenary over those undersea lands precisely as it is over every river, farm, mine, and factory of the nation." And Frankfurter J, who also dissented, pointed out (at 44-5) that the oil under the sea is no more vital to the national security, and no more likely to be the subject of international dispute, than uranium under the land. The second comment that may be made is that considerations of national policy cannot override rules of law, and in any case courts are not always the best judges of national policy. In fact Congress apparently took a rather different view from the Supreme Court of what the national policy required, for by the Submerged Lands Act of 1953 (US) the ownership of the lands beneath navigable waters within the boundaries of the respective States, and the resources within those lands and waters, were vested in the respective States.

United States v California was followed in United States v Louisiana (1950) 339 US 699, and United States v Texas (1950) 339 US 707, where it was held that the United States, rather than the States, was possessed of paramount rights in, and full dominion and power over, lands underlying the Gulf of Mexico and extending seawards from low-water mark for 27 miles (in the case of Louisiana) and to the outer edge of the continental shelf (in the case of Texas). In the first of those cases the court accepted both of the reasons given for the decision in United States v California -- that California, like the original colonies, never acquired ownership in the territorial sea, and that since the territorial sea is of national concern, national rights must be paramount in that area (at 704). The first of these reasons was not, however, applicable in the case of Texas. That State was proclaimed a Republic in 1836 and admitted to the Union in 1845. The court assumed that as a Republic, Texas had not only full sovereignty over the territorial sea but ownership of it and of the land underlying it (see at 717). However, they applied the "equal footing" doctrine in reverse and held that when Texas entered the Union she relinquished her rights over the territorial sea (at 717-8). Three members of the court took a different view. Frankfurter J said (at 724): "The Court now decides that when Texas entered the Union she lost what she had and the United States acquired it. How that shift came to pass remains for me a puzzle."

Finally, in United States v Maine (1975) 43 L ed 363, the Supreme Court was invited to overrule the earlier decisions but declined to do so. Apparently because of the States' submission that it was erroneous to deny that prior to independence the 13 colonies had substantial rights in the territorial sea, the court appointed a Special Master to take evidence and submit a report. The Master, the Honourable Albert B Maris, presented a report in which, after learnedly discussing the history of the claims made by littoral nations to adjacent seas, he said (at 46): "I find that some time before 1776 the earlier English pretensions to sovereignty over the English seas and with them the claim of the crown to the seabed of those seas had been abandoned and were beginning to be replaced by the new concept of a marginal band of sea within cannon shot of the shore, a distance which was later to be equated with three miles, in which the crown could enforce neutrality, control fishing and exercise other sovereign powers. I find no evidence, however, that the idea of sovereignty over the marginal belt of sea, in a territorial sense, was accepted in either English or American law until well into the nineteenth century."

Later he said (at 47): "I conclude that when in 1776 the American colonies achieved independence and when in 1783 the Treaty of Paris was concluded, neither the British crown not the colonies individually had any right of ownership of the seabed of the sea adjacent to the American coast, except for those limited areas, if any, which they had actually occupied."

The court did not find it necessary to consider for itself the history relevant to the question whether the colonies had claims to the sea-bed, for even if they had that would not have disposed of the matter (at 369). The court found it enough to accept and apply the rule, which was repeated time and again in the earlier cases, "that paramount rights to the offshore seabed inhere in the Federal Government as an incident of national sovereignty" (at 370).

Thus in the end the United States decisions depend on considerations of policy, and they are considerations which seem to me to assume a conclusion which is not logically necessary. It does not follow that because the central government in a federation has exclusive responsibility for the conduct of foreign relations, and because the ocean is of vital importance for the maintenance of peace and the conduct of trade, the central government should have exclusive powers over the territorial sea. The same argument, if valid, would apply to the land and the airspace over it. The proposition that before 1783 neither the Crown nor any colony had any right of ownership in the bed of the territorial sea (although apparently Texas had acquired such a right before 1845) may in my opinion be doubted, but if it is correct a change had occurred in English law before the end of the nineteenth century, and that is the time with which we are concerned.

In Canada a dispute between the Dominion and British Columbia as to the ownership of and jurisdiction over the sea-bed and subsoil seaward from low-water mark to the outer limits of the territorial sea of Canada, and as to the right to exploit the resources of the continental shelf beyond the limits of the territorial sea, was decided in favour of Canada in Reference re Ownership of Off-Shore Mineral Rights (1967) DLR (2d) 353. The reasons for the decision may be shortly summarized as follows: R v Keyn decided that the territory of England ends at low-water mark. The Territorial Waters Jurisdiction Act 1878 did not enlarge the realm of England. Early Canadian legislation is inconsistent with the theory that the Provinces possessed as part of their territory the solum of the territorial sea. Dicta contrary to the majority judgment in R v Keyn should be disregarded. In 1871 when British Columbia joined the Dominion it did not have ownership of, or property in, the territorial sea. The rights in the territorial sea formerly asserted by the British Crown in respect of the colony of British Columbia were after 1871 asserted by the British Crown in respect of the Dominion of Canada. Some time after the signing of the Treaty of Versailles in 1919 Canada became a sovereign state with full capacity to acquire new areas of territory and new jurisdictional rights which might be available under international law. The effect of the Territorial Sea and Fishing Zones Act of 1964 (Can), and of the Geneva Convention of 1958, is that Canada is recognized in international law as having sovereignty over a territorial sea three nautical miles wide; it is part of the territory of Canada.

The court held that Canada has exclusive legislative jurisdiction in respect of the bed of the territorial sea either under s 91(1 A) of the British North America Act or under the residual power in s 91; British Columbia has no legislative jurisdiction; the lands under the territorial sea are outside its boundaries, and not within the Province, and therefore do not fall within any of the enumerated heads of s 92 of the British North America Act.

The court further held that international law with regard to the continental shelf is a recent development and that the rights now recognized by international law to explore and exploit the natural resources of the continental shelf do not involve any extension of the territorial sea. They held that the continental shelf is outside the boundaries of British Columbia and that Canada is the sovereign state which should be recognized by international law as having the rights stated in the convention.

The decision that the lands under the territorial sea did not belong to British Columbia rests, in my opinion, on the authority of the views of the majority in R v Keyn . It will appear from what I have said that I respectfully consider that the Supreme Court gave too much weight to those views and too little attention to the other decisions that I have discussed. It is unnecessary for me to consider whether the court was right in concluding that if the territorial sea did not belong to the Province it now belongs to Canada. What was said to the legislative power of the Province is clearly inapplicable to the position of the Australian States whose legislative powers are not limited in the manner indicated in s 92 of the British North America Act. I am not persuaded, either by the Canadian or the United States authorities, to depart from the views I have already expressed. With the conclusion reached in relation to the continental shelf I am, however, as will be seen, in general agreement.

The Validity of s 6 of the Act

For the reasons which I have elaborated at length I hold that when the Act was passed the territorial sea adjacent to each State formed part of the territory of that State and the Crown in right of the State owned the bed and subsoil beneath the territorial sea. It follows from what I said earlier as to the powers of the Commonwealth that s 6 of the Act is invalid.

Internal Waters

If the conclusions that I have reached in relation to the territorial sea are correct it follows, a fortiori , that s 10 of the Act, which vests in the Crown in right of the Commonwealth the sovereignty in respect of the internal waters and the airspace over them and the sea-bed and subsoil beneath them, is bad. If, however, my views as to the territorial sea are rejected, a question remains with respect to the internal waters. At the very least the territory of the States extends to low-water mark, but the Act treats as internal waters "any waters of the sea on the landward side of the baseline of the territorial sea" (s 10). If the Governor-General, acting under s 7, determined that straight baselines should be drawn between appropriate points, the waters of the sea over the foreshore between low-water mark and high-water mark, as well as waters within indentations of the coast, would lie to the landward of the baselines. Section 14 would preserve the sovereignty of the States in respect of areas "within any bay, gulf, estuary, river, creek, inlet, port or harbour" but would not preserve State rights in respect of the shore between low and high-water mark. The assertion of Commonwealth sovereignty to this comparatively small, but not altogether unimportant, area must on any view be invalid.

The Continental Shelf

The rules of international law now established by the Convention on the Continental Shelf are of recent origin. In the judgment of the International Court in the North Sea Continental Shelf Cases [1969] ICJ Rep 4, it was said (at par 47) that the "Truman Proclamation", issued by the Government of the United States on 28 September 1945, "soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in art 2 of the 1958 Geneva Convention on the Continental Shelf". Claims similar to those made in the Truman Proclamation were made by the Commonwealth Government in a proclamation dated 10 September 1953 ( Commonwealth Gazette , 11 September 1953, p 2563). It is true that before federation the colonies of Queensland and Western Australia had exercised a certain control over pearl and beche-de-mer fishing outside territorial waters, pursuant to the Acts of the Federal Council of Australasia to which I have already referred. However, none of the colonies before 1900 had made any claim to sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources.

The argument submitted on behalf of the States starts with the proposition, accepted by the International Court in the North Sea Continental Shelf Cases (at par 19) that "the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio , by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the sea-bed and exploiting its natural resources". Therefore it is said that the rights of the States to the continental shelf, although never asserted by any colony before federation, must now be taken always to have existed and that the States' ownership of the sea-bed no longer stops at the three-mile limit but extends to the outer limits of the continental shelf.

To say the rights of coastal States in respect of the continental shelf existed from the beginning of time may or may not be correct as a matter of legal theory. In fact, however, the rights now recognized represent the response of international law to modern developments of science and technology, which permit the sea-bed to be exploited in a way which it was quite impossible for governments or lawyers of earlier centuries to foresee. In this matter the arguments of history are stronger than those of logic. In truth, when the Act was passed, the States had not asserted and did not have the rights to the continental shelf which the convention now accords to coastal States. Those rights, if theoretically inherent in the sovereignty of coastal States, were in fact the result of the operation of a new legal principle. When those rights were recognized by international law the Commonwealth was the international person entitled to assert them, and it did so. The assertion by the Commonwealth of those rights in no way interfered with any existing right of any State.

For these reasons, in my opinion Div 2 of Pt II of the Act is valid.

Conclusion

I would declare that Div 1 of Pt II of the Act is invalid but that Div 2 of Pt II is valid.

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