New South Wales and Others v Commonwealth
135 CLR 337(Decision by: Mason J)
New South Wales and Others
vCommonwealth
Judges:
Barwick CJ
McTiernan J
Gibbs J
Stephen J
Mason JJacobs 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
Judgment date: 17 December 1975
Sydney
Decision by:
Mason J
In actions commenced by the States against the Commonwealth for declarations that the Seas and Submerged Lands Act 1973 is beyond the powers of the Commonwealth Parliament, Menzies J directed that there be argued before the Full Court the question whether the Act is valid.
The answer to this question depends upon, or is affected by, considerations of varying complexity. They must be examined at the outset, for it is only when they have been evaluated that the provisions of the Act can be seen in their true perspective and their effect correctly gauged.
The Littoral Boundaries of the Australian Colonies
The plaintiffs' case is that the territorial sea and its solum form part of the territories of the States and that the Act cannot therefore be supported as an exercise of the legislative powers conferred by s 51(XXIX) or s 122 of the Constitution. Central to this case is the proposition that the littoral boundaries of the Australian colonies did not stop at low-water mark and that the territorial sea surrounding the colonies formed part of their territory, as did the solum of the territorial sea. The initial obstacle which this argument encounters is that the delimitation of the colonial boundaries in the historical documents, as I read them, sets the seaward boundaries at the extremities of the land territory.
(a) New South Wales
The territorial limits of the colony of New South Wales were defined in two commissions issued to Governor Phillip. The second commission, constituted by letters patent dated 2 April 1787, described the colony as "extending from the Northern Cape or extremity of the coast called Cape York in the latitude of ten degrees thirty-seven minutes south to the southern extremity of the said territory of New South Wales or South Cape ... including all the islands adjacent in the Pacific Ocean within the latitudes aforesaid ...".
This description commences at a point on the east coast, proceeds south along that coast and terminates at another point on the coast, thereby making it clear that the boundary lies at the extremity of the land mass. The specific inclusion of islands in the Pacific Ocean is inconsistent with the notion that the colony includes the sea and confirms that it is limited to the land mass and islands.
Subsequent alterations to the New South Wales boundaries did not affect the seaward limits.
(b) Tasmania
The extent of the colony of Tasmania was set out in the commission issued by letters patent dated 16 July 1825 which described the Governor's jurisdiction as extending to "our Island of Van Diemen's Land, and all Islands and Territories lying to the Southward of Wilson Promontory ...". Here again there is nothing in the description which includes within the colony the sea or its solum.
(c) Western Australia
The territorial limits of the colony of Western Australia were defined in the commission issued by letters patent dated 4 March 1831 to Governor Stirling. It referred to the colony as "extending from Cape Londonderry ... to West Cape Howe ... and from the Hertogs Island on the western coast in longitude one hundred and twelve degrees fifty two minutes to one hundred and twenty nine degrees of east longitude ... including all the islands adjacent in the Indian and Southern Oceans" within a defined area. The northern limits of the colony were extended by a commission issued by letters patent dated 10 July 1873 to Governor Weld but not so as to alter the seaward boundary earlier established and that, plainly enough, followed the line of the coast in a fashion similar to the seaward boundary of New South Wales.
(d) South Australia
The seaward boundary of South Australia was described in letters patent dated 19 February 1836 issued pursuant to s 1 of the Act 4 & 5 Will IV, c 95, as "On the South the Southern Ocean" including "all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said Province". By including "Bays and Gulfs" the description departed from the approach taken in the case of the earlier colonies. It was prompted by a desire to place beyond question the status of St Vincent's Gulf and Spencer's Gulf which were by this means incorporated within the colony. In other respects, however, the description of South Australia's seaward boundary conforms to earlier practice.
(e) Victoria
The first description of boundaries is to be found in s 1 of the Australian Constitutions Act 1850 (13 & 14 Vict, c 59) in which the colony was described as including "the Territories ... comprised within the ... District of Port Phillip, including the Town of Melbourne". There followed a statement of the northern and western boundaries.
The boundaries were re-defined by the commission issued to Governor Darling by letters patent dated 23 June 1863 in which it was stated that the colony consisted "of the Territories bounded ... on the South by the Sea".
(f) Queensland
The first definition of boundaries is contained in letters patent dated 6 June 1859 issued under s 7 of the New South Wales Constitution Act 1855. It excised from the colony of New South Wales certain territory which lay to the north of a designated line which was set as the southern boundary of the new colony. Specifically included were "all and every the adjacent islands their members and appurtenances in the Pacific Ocean".
Subsequently, by letters patent dated 13 March 1862 issued under s 2 of the Australian Colonies Act 1861 there was annexed to the colony so much of New South Wales "as lies to the northward of the 26th parallel of south latitude, and between the 141st and 138th meridians of east longitude, together with all and every the adjacent islands, their members and appurtenances in the Gulf of Carpentaria". By deed poll dated 22 August 1872 the Governor of Queensland pursuant to powers conferred upon him by letters patent dated 30 May 1872 transferred to the colony of Queensland "all the islands lying and being within sixty miles of the coasts of the said Colony". Certain islands in the Torres Strait were subsequently included within the colony by proclamation dated 18 July 1879.
The Territorial Sea and its Solum
The plaintiffs endeavoured to overcome the absence of any reference in the definition of the colonial boundaries to territorial waters and their solum by submitting that the definition must be read in the light of the supposed common law rule that the territorial sea formed part of the realm of England. For reasons which I shall state, the plaintiffs' submission does not accurately reflect the rule of municipal law as it was enunciated in the nineteenth century and, even if it did, the rule did not operate to alter or amend colonial boundaries otherwise defined or established at that time.
The old common law doctrine that the narrow seas around England were within the territorial sovereignty of the King, expressed in the treatise De Jure Maris attributed to Hale, supported by Selden and asserted in Chitty on the Prerogative of the Crown , if it ever had validity, was pronounced to be obsolete by Viscount Haldane LC, speaking for the Judicial Committee, in Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 174. In its place there came into existence in British municipal law the concept of the territorial sea having its origins in, and owing much of its development and elaboration to, international law.
The initial, and perhaps the critical, question for consideration is whether under municipal law the territorial sea of three miles from low water, and its solum, formed part of the territory of the Crown before 1900 (the plaintiff's case) or whether they were the subject of legislative jurisdiction which fell short of territorial dominion (the defendant's case). It is a vexed question upon which divergent views have been expressed.
In R v Keyn (1876) 2 Ex D 63, the issue was examined at great length. The case cannot be dismissed as one which decided no more than the limits of admiralty jurisdiction. An essential step in the reasoning of the majority centred on the proposition that the realm of England ended at low-water mark and that the territorial sea, though the subject of admitted legislative jurisdiction, formed no part of England. Seven of the 13 judges comprising the bench clearly reached this conclusion (Phillimore J, at 67; Bramwell JA, at 150; Kelly CB, at 150-1; Cockburn CJ, at 195, 197, 199 and 219; Lush J, at 238; Pollock B, at 239; and Field J, at 239). It is not without importance that the words "realm" and "territory" were used interchangeably and synonymously by the judges (see Cockburn CJ at 197-8).
The attempt made by the plaintiffs to detach Lush J from the majority by suggesting that his Lordship expressed the view that the territorial sea was within the realm is belied by his judgment. Lush J (at 238) expressly agreed with Cockburn CJ whose opinion is not in doubt, and went on to say (at 239): "In the reign of Richard II the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas ... what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now."
What Lush J said subsequently in his judgment (at 239) and what was undoubtedly correct, was that the territorial sea, though outside the realm, could be brought within the territory of England by Act of the Imperial Parliament. This view was shared by Cockburn CJ (at 198) and the judges who agreed with him. At the date of Keyn's Case no legislation to this effect had been passed by the Imperial Parliament and thus the territorial sea was not then incorporated into the realm of England.
It is significant that in two cases decided in the year following Keyn's Case three judges who had been in the minority in that case held that Keyn's Case decided that the territory of England stopped at low-water mark ( Harris v Owners of Franconia (1877) 2 CPD 173 at 177-8, per Coleridge CJ, Grove and Denman JJ; Blackpool Pier Co v Fylde Union (1877) 36 LT 251 at 251, per Coleridge CJ and Grove J). The same view has been expressed recently by the Supreme Court of Canada in Reference re Ownership of Off-Shore Mineral Rights (1967) 65 DLR (2d) 353 at 363, and by Barwick CJ and Windeyer J in Bonser v La Macchia (1969) 122 CLR 177 at 184 and 218-9 ; [1969] ALR 741.
The Territorial Waters Jurisdiction Act 1878 (Imp) did not reverse the principle according to which Keyn's Case was decided. The Act did not alter the seaward limits of British territory. It assumed the correctness of that decision and conferred on British and colonial courts jurisdiction to try offences committed by foreigners on board foreign ships within three nautical miles from the line of low water -- the jurisdiction which Keyn's Case had held to be wanting in the absence of legislative action to confer it. The assertion of jurisdiction in the preamble to the statute "over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty's dominions to such a distance as is necessary for the defence and security of such dominions" was a declaration of jurisdiction, not a declaration that the adjacent seas formed part of British territory.
On the other hand there are cases which appear to lend some support to the plaintiffs. However, in my view Carr v Fracis Times & Co [1902] AC 176 is not one of them. It decided no more than that for the purpose of the rule of private international law enunciated in Phillips v Eyre (1870) LR 6 QB 1, an act committed within the territorial waters of Muscat was an act committed within the jurisdiction of the Sultan of Muscat, the act having been carried out under the authority of a proclamation issued by the Sultan who was the sovereign ruler. The Earl of Halsbury LC seems to have expressed an opinion more favourable to the plaintiffs (at 181) but it proceeds upon the mistaken view that the Territorial Waters Jurisdiction Act reversed the principle on which Keyn's Case was decided.
There are, however, stronger statements of high authority which favour the plaintiffs. First there is the statement made in Lord Advocate v Wemyss [1900] AC 48 by Lord Watson, speaking with reference to mineral rights below low-water mark (at 66): "I see no reason to doubt that, by the law of Scotland, the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit, and also the minerals beneath it, are vested in the Crown." See also Lord Advocate v Clyde Navigation Trustees (1891) 19 SC 174.
Next there are the observations of Parker J in Lord Fitzhardinge v Purcell [1908] 2 Ch 139, 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 bed of the sea, so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers, can be granted by the Crown to the subject."
Then in Secretary of State for India v Chelikani Rama Rao (1916) LR 43 Ind App 192 it was held that islands formed on the bed of the sea within the territorial waters of India belonged to the Crown. Lord Shaw of Dunfermline regarded Keyn's Case as deciding only the limits of admiralty jurisdiction (at 199), a view which cannot be sustained. His Lordship referred to Hale's doctrine and cited Parker J's observations in Lord Fitzhardinge v Purcell , which were also based on sovereignty over the narrow seas, and went on to say (at 202): "There is nothing to recommend a local jurisdiction over a space of water lying above a res nullius ." In the previous year Lord Shaw of Dunfermline had in Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599 at 611; ; [1914-15] All ER Rep 444 at 450, expressed a similar view of the Crown's ownership of the foreshore and the sea-bed.
To the extent to which these observations are at variance with what was decided in Keyn's Case they do not, in my opinion, accurately reflect the law as it stood in 1900. They carry overtones of the ancient doctrine, enunciated by Selden and Hale, that the narrow seas were within the territorial sovereignty of the King, a doctrine which was then obsolete. They fail to acknowledge, as did the majority in Keyn's Case , that the territorial sea is a distinct concept which owes its origin, development and elaboration to international law and that it has been incorporated into British municipal law not as a supplement to the old notion of territorial sovereignty, but quite independently of it.
The decision in Chelikani's Case may be supported on the principle, well recognized in international law, that islands formed within the territorial sea are held to be an accretion to the territory of the littoral state. Unfortunately the Judicial Committee did not refer to the observations of Viscount Haldane LC in Attorney-General for British Columbia v Attorney-General for Canada ([1914] AC at 174-5) when his Lordship, delivering the judgment of the court, said: "[Their Lordships] desire, however, to point out that the three-mile limit is something very different from the 'narrow seas' limit discussed by the older authorities, such as Selden and Hale, a principle which may safely be said to be now obsolete. The doctrine of the zone comprised in the former limit [that is, the three-mile limit] owes its origin to comparatively modern authorities on public international law. Its meaning is still in controversy. The questions raised thereby affect not only the Empire generally but also the rights of foreign nations as against the Crown, and of the subjects of the Crown as against other nations in foreign territorial waters. Until the Powers have adequately discussed and agreed on the meaning of the doctrine at a Conference, it is not desirable that any municipal tribunal should pronounce on it ... Until then the conflict of judicial opinion which arose in R v Keyn 2 Ex D 63, is not likely to be satisfactorily settled, nor is a conclusion likely to be reached on the question whether the shore below low water mark to within three miles of the coast forms part of the territory of the Crown or is merely subject to special powers necessary for protective and police purposes. The obscurity of the whole topic is made plain in the judgment of Cockburn CJ in that case. But apart from these difficulties, there is the decisive consideration that the question is not one which belongs to the domain of municipal law alone."
These observations, though leaving open the correctness of the actual conclusion reached in Keyn's Case , make it clear that the approach which the majority took, based on an examination of international law, was to be preferred to an approach based on the ancient doctrine of territorial sovereignty. Moreover, Viscount Haldane made it equally plain that the rule of international law was dynamic and that the solution which it might ultimately provide to the issue debated in Keyn's Case would turn on the future evolution of international law.
The decision in Chelikani's Case , and indeed the concept of territorial sovereignty in the bed of territorial waters on which the decision was based, may also be supported, not as an instance of the old common law doctrine of territorial sovereignty, but as an example of the modern rule of international law as it has evolved in the twentieth century, for the concept of territorial sovereignty on the territorial sea and its solum was plainly recognized in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (see arts 1 and 2). And the International Court of Justice has held that the continental shelf is a natural extension of the land territory of the coastal State appertaining to it for the purpose of exercising its sovereign rights ( North Sea Continental Shelf Cases [1969] ICJR 4). Even so, it is necessary to distinguish between the land territory of a coastal State on the one hand and its territorial sea and solum on the other hand, for the coastal State in the exercise of its sovereign rights is bound to give effect to the obligations relating to the right of innocent passage imposed upon it by the convention in respect of its territorial sea and solum. Accordingly, the territorial rights now conceded by international law to the coastal State in the solum of territorial waters stamp it with the character of territory that is different from the land territory of the coastal State.
All this in a sense is by the way. We are primarily concerned to identify the extent of the colonial boundaries prior to 1900. In so far as it is relevant to that question, we should look to the municipal law, based on a concept of international law then in course of evolution, as it was enunciated in the one authoritative decision given in the nineteenth century, a decision which appears to have proceeded on a comprehensive review of all the relevant materials. We are not justified in discarding this decision in favour of subsequent and conflicting judicial observations which reflect either an outmoded doctrine of territorial sovereignty or later developments in international law.
But in the end we must return to the delimitation of the colonial boundaries in the historical documents. They are expressed to lie at the extremity of the coast. They are in terms inconsistent with the attempt now made by the plaintiffs to engraft upon them an additional tract of territory extending throughout the three-mile limit and beyond. The definition of the boundaries is consistent with the existence of a legislative competence on the part of the Imperial Parliament and the colonial legislatures throughout the three-mile limit and beyond. It is even consistent with the retention by the Crown in right of the United Kingdom of territorial sovereignty in the territorial sea and its solum, assuming such a sovereignty to have been conceded then by municipal law, contrary to the opinion which I have expressed. But the delimitation of the colonial boundaries denies that they stood at the outer margin of the territorial sea.
The colonies lacked authority to alter their boundaries by unilateral action. Section 2 of the Colonial Boundaries Act 1895 (Imp) provided that the Queen, on the advice of her Imperial Ministers, might with the consent of a self-governing colony, alter the boundaries of that colony (s 2). This provision belied the existence of a power in a colonial legislature to take unilateral action. And no alteration was ever made under the Colonial Boundaries Act.
The opinion which I have already expressed as to the authority of Keyn's Case before 1900 answers the submission that the territorial sea and its solum could, in the absence of some addition to the territories of the colonies, or of legislative action, constitute territory of the colonies situated outside the colonial boundaries. The plaintiffs argued that the solum of the territorial sea was waste land of the colonies. However, the power given to the colonies to alienate waste lands of the Crown was limited to waste lands "within the said colony" -- see Constitution Act 1855 (NSW) (18 & 19 Vict, c 54) s 43; Constitution Act 1855 (Vic) (18 & 19 Vict,c 55) s 54; Constitution Act 1867 (Qld) s 30; Wastelands Act 1855 (18 & 19 Vict, c 56) ss 5 and 7.
There is another consideration which to my mind is significant. The Colonial Boundaries Act and, more importantly, s 123 of the Constitution assume that the boundaries of the Australian colonies and subsequently of the States are fixed boundaries capable of alteration only in the manner prescribed. Yet we know that the concept of the territorial sea is a concept of international law that is evolving and developing. In the nineteenth century the three-mile limit was generally, if not universally, accepted. But by 1958 there were a number of nations that claimed a wider territorial sea, with the result that the width of the territorial sea was left unstated by the Geneva Convention in that year. Today a wider territorial sea is claimed by many nations. If, and it is a future possibility that cannot be discounted, the territorial sea asserted by the Commonwealth should extend beyond three miles, is the extension to be regarded as effecting an alteration to the limits of the States, though not effected in the manner prescribed by s 123? The question must be answered in the negative. The territorial sea is essentially a conception of international law; its extension or reduction does not affect the boundaries of the constituent elements in the federation.
That the territorial sea is essentially a conception having its origins in and owing its elaboration to international law supplies a further reason for rejecting the notion that the subsoil of territorial waters adjacent to a colony formed part of the territory of that colony. The colonies were not members of the community of nations. In so far as rights were conceded by international law to the coastal State over its territorial sea (and the concession of these rights is the foundation of the relevant rule of nineteenth-century municipal law) no such rights inhered in the colonies per se ; they vested in Great Britain or the Imperial Crown. The territorial sea surrounding the Australian colonies was in the eye of international law, British territorial waters.
There is, therefore no basis on which the suggestions sometimes made in the British law officers' opinions in the nineteenth century that territorial waters formed part of the territory of the colonies can be supported. The persuasive effect of these opinions is in any event diminished by the contrariety of view which they express. They reflect the controversy of which Viscount Haldane spoke in 1914. they do not convince me that the colonial boundaries included territorial waters.
The Colonies' Legislative Power in relation to the Territorial Sea
All this is not to say that the colonies lacked legislative power to make laws having effect in territorial waters. International law provides no reason for denying to Great Britain legislative power and jurisdiction over the territorial waters adjacent to a colony and its subsoil. This power and jurisdiction were exercisable in an appropriate case by a colonial legislature possessing power to legislate for the peace, order and good government of the colony. The power to make laws for the peace, order and good government of a colony was wide enough to enact laws applying to territorial waters and beyond. So much was finally recognized by the decision of the Privy Council in Croft v Dunphy [1933] AC 156 ; [1932] All ER Rep 154, despite suggestions to the contrary arising from what was said in Macleod v Attorney-General for New South Wales [1891] AC 455, and what was then decided in relation to the Dominion of Canada had a like application to the situation of the colonies before 1900 R v Bull (1974) 3 ALR 171 ; 48 ALJR 232). This power was large enough to enable the colonial legislatures to authorize the grant of leases and other estates or interests and the construction and maintenance of works in the sea-bed below low-water mark. No doubt a colony could, if it were so minded, legislate so as to vest in the Crown or an instrumentality of the Crown proprietary interests in the sea-bed.
As between the Crown and a subject, instances may be found of the grant by the Crown without legislative authority of proprietary interests in the foreshore or sea-bed. As against the Crown the subject could not dispute the Crown's title. But this constitutes no ground for concluding that Keyn's Case is incorrect in relation to the Australian colonies. And the decisions of the United States Supreme Court and the Supreme Court of Canada denying that territorial waters and the sea-bed formed part of the territory of the States of the Union and the Provinces of the Dominion confirm the absence of any proprietary interest in the Australian colonies ( Reference re Ownership of Off-Shore Mineral Rights ; United States v California (1947) 332 US 19).
The Commonwealth's Powers in Relation to the Territorial Sea
The Constitution Act of 1900 brought the Commonwealth into existence as a potential member of the community of nations, with a capacity to conduct its relationships with other nations. When it actually became a member of the community of nations, and accepted as an international persona, it is not necessary to decide. Whether it was achieved on federation or at some time before the Balfour Declaration, the Statute of Westminister 1931 and the Statute of Westminster (Adoption) Act 1942 is not of present importance. What is of importance is that it is consistent with the Commonwealth's character as an international persona and with the States' lack of that character, that legislative power and jurisdiction over the territorial sea and its sea-bed should reside in the Commonwealth rather than the States.
In United States v California the Supreme Court of the United States observed that national interests, rather than the interests of individual States, were paramount in the three-mile belt (p 35). The control and regulation by the coastal State of its territorial sea, and for that matter of its solum, is an aspect of its external sovereignty and its external relationships with other nations. It is therefore a function as appropriate to the Commonwealth as it is inappropriate to the States. Judged even from a domestic standpoint the territorial sea has such important consequences for the defence of the nation, for the protection of the revenue, for quarantine and for national interests in general that it is not readily to be supposed that upon federation the power to regulate and control the territorial sea and its solum was vested in the States to the exclusion of the Commonwealth, thereby denying to the Commonwealth power to establish a uniform regime in that area, and leaving it subject to the enactment of diverse and discordant rules.
Once it is accepted that the boundaries of the colonies terminated at low-water mark there is, in my opinion, no reason why the Commonwealth's power to make laws with respect to "external affairs" (s 51(xxix)) should not be regarded as conferring upon it a plenary power to legislate upon the topic of the territorial sea and its solum. There is abundant authority for the proposition that the subject matter extends to Australia's relationships with other countries and in particular to carrying into effect treaties and conventions entered into with other countries, provided at any rate that they are truly international in character ( R v Burgess ; Ex parte Henry (1936) 55 CLR 608 ; [1936] ALR 482Airlines of New South Wales Pty Ltd v State of New South Wales (No 2 ) (1965) 113 CLR 54 ; [1965] ALR 984).
The plaintiffs' argument proceeds on the footing that the power is no more than a power to make laws with respect to Australia's relationships with foreign countries. Why the power should be so confined is not readily apparent. The power is expressed in the widest terms; it relates to "affairs" which are external to Australia. "Affairs" include "matters" and "things" as well as "relationships" and a constitutional grant of plenary legislative power "should be construed with all the generality which the words used admit" ( R v Public Vehicles Licensing Appeal Tribunal of the State of Tasmania ; Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 225 ; [1964] ALR 918).
In order to cut down the meaning and operation of the words it was suggested that the words "external affairs" were selected because the traditional expression "foreign affairs" might exclude Australia's relationship with other parts of the British Empire ( Burgess' Case (55 CLR) at 684). This observation, though it illuminates the motives which actuated the selection of the words, does little to define their meaning and scope.
Next it was urged that to give a wide meaning to the power would make other heads of power in s 51 redundant, notably s 51(x) and (xxx). The frailty of this argument is that, even on a limited view of s 51(xxix), it appears to embrace Australia's relationships with the islands of the Pacific, and consequently to cover the field included in s 51(xxx). Furthermore, the reference to "relations" in s 51(xxx) strongly suggests that "external affairs" in s 51(xxix) is a more comprehensive expression which is not confined to relationships with other countries.
Similarly, I am not persuaded by the plaintiffs' submission relating to s 51(x). There can be little doubt that control and regulation of fisheries beyond territorial limits was regarded as having such importance as to require its specific mention in s 51. Fishing and fisheries were a matter of great concern to the Australian colonies before federation. The fisheries power had been included in the short list of powers conferred on the Federal Council of Australasia by the Federal Council of Australasia Act 1885, s 15(c). Its omission from s 51 of the Constitution was not to be contemplated; in its historical context, the omission may have had an untoward significance in the interpretation of the Constitution.
For these reasons it is my opinion that the power conferred by s 51(xxix) extends to matters or things geographically situated outside Australia. This view appears to accord with what was said by Evatt and McTiernan JJ in Burgess' Case , supra, (at 678). And it applies with special force to the territorial sea and its solum because, as I have already observed, their control and regulation is an aspect of the external sovereignty of Australia and Australia's external relationships with other nations.
The Continental Shelf
The rejection of the plaintiffs' claim to territory and ownership of the bed of the territorial sea necessarily denies their title to the continental shelf, that is, for present purposes, that part of the continental shelf which extends beyond the outer margin of the territorial sea. Indeed, in terms of history there is nothing to sustain a claim by the Australian colonies to proprietary interests in the sea-bed beyond the outer margin of territorial waters.
It follows, then, that in my view the Commonwealth Parliament has power under s 51(xxix) to make laws affecting the ownership, regulation and control of the territorial sea, its solum and the continental shelf.
The Act
In its preamble the Act refers to the Geneva Convention on the Territorial Sea and the Contiguous Zone (1958) and the Convention on the Continental Shelf, also made at Geneva in 1958, to each of which Australia is a signatory. The terms of each convention are set out in Schedules 1 and 2 of the Act.
The most important provisions of the Convention on the Territorial Sea are those contained in arts 1, 2, 3, 5(1), 6, 14(1) and 15(1), which are set out below:
Article 1
1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.
Article 2
The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil.
Article 3
Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.
Article 5
1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.
Article 6
The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.
Article 14
1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.
Article 15
1. The coastal State must not hamper innocent passage through the territorial sea.
The substance of the convention is to declare that a coastal State has sovereignty over that part of the waters adjacent to its coast known as the territorial sea and over the sea-bed and subsoil of that territorial sea together with the airspace. Whether these provisions are merely declaratory of existing international law or whether they are innovative need not be considered.
The Convention on the Continental Shelf also gives a coastal State certain special rights in relation to parts of the sea-bed adjacent to its coast. The main provisions setting out the rights of the coastal State are those contained in arts 1, 2 and 3 which are reproduced below:--
Article 1
For the purpose of these articles, the term 'continental shelf' is used as referring (a) to the seabed 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 seabed and subsoil of similar submarine areas adjacent to the coasts of islands.
Article 2
1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.
4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.
Article 3
The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters.
In short, the effect of these articles is to give to the coastal State exclusive rights of exploration of its continental shelf and an exclusive right to exploit its natural resources. These rights, however, do not amount to a complete sovereignty over the shelf nor over the superjacent waters or airspace (art 3). Further, these rights are subject to certain obligations which are predominantly set out in art 5.
According to its long title the Act is " AN ACT Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to Sovereign Rights in respect of the Continental Shelf and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from the Continental Shelf."
Section 6, 10 and 11, around which the argument principally centred, provide as follows:--
- 6.
- 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.
- 10.
- 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.
- 11.
- 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 right of the Commonwealth.
It will be seen that the Act has a dual effect; first, it asserts, at international level, Australia's rights over the territorial sea and the continental shelf; secondly, it declares as a matter of domestic law that these rights are vested in the Commonwealth -- this much at least flows from the reference to "the Crown in right of the Commonwealth" in ss 6, 10 and 11 and the saving provisions contained in ss 14, 15 and 16.
The concept expressed by the word "sovereignty" in arts 1 and 2 of the Convention on the Territorial Sea is that of supreme authority, the supreme authority which a State is recognized by international law as having over its land territory, howsoever the exercise of that supreme authority may be divided between the municipal organs of government within the State, as for example within a State which is a federation. As the International Court of Justice stated in the North Sea Continental Shelf Cases [1969] ICJR 4, and as Barwick CJ observed in Bonser v La Macchia (122 CLR at 186), the continental shelf is considered to be, for the purpose of the exercise of sovereign rights by the coastal State, "a natural prolongation of its land territory". So also is the bed of the territorial sea. This is not to say that the sea-bed is territory in the sense that the land territory of the coastal State is territory. But it is to say that, subject to the convention and to the rules of international law, the coastal State possesses that supreme authority over the bed and subsoil of territorial waters which it enjoys over its land mass, and that in the exercise of this authority the coastal State may in accordance with international law assert ownership and dominion if it chooses so to do.
The Act seeks to give effect to the convention by asserting that the sovereignty in respect of the territorial sea, its land and subsoil as well as the airspace over it "is vested in and exercisable by the Crown in right of the Commonwealth" (s 6). Conformably with my conclusions as to the location of the seaward boundaries of the Australian colonies and the scope of the legislative power under s 51(xxix), s 6 of the Act asserts the existence of that supreme authority which is acknowledged by the convention to reside in the coastal State and provides that it is vested in, and exercisable by the Crown in right of the Commonwealth, an expression which is apt to include the Commonwealth Parliament. The section cannot, and does not, deny to an Australian State the capacity which it has, in the exercise of its power to legislate for the peace, order and good government of the State, to apply its laws to the territorial sea, its bed and subsoil, but such laws will, to the extent of any inconsistency with a valid Commonwealth law enacted under s 51(xxix) or any other head of power, be rendered inoperative by s 109. Whether the Commonwealth can hereafter acquire the sea-bed as a territory of the Commonwealth and thereafter legislate under s 122 is not a question which needs presently to be pursued.
Section 8(a) enables the Governor-General to declare an historic bay to be an historic bay and to define its seaward limits. Such a bay, in accordance with international law and art 6 of the convention does not form part of the territorial sea, but is held to be inland waters. Section 8(b), a similar provision relating to historic waters, is less clear in its operation, but it raises no point of importance.
The conjunction of s 10 and s 14 is not without its difficulty. Section 10 declares that sovereignty in respect of inland waters (that is, 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 superjacent airspace and subjacent sea-bed and subsoil is vested in, and exercisable by the Crown in right of the Commonwealth.
Apart from the saving provisions of s 14 this section might be seen as an attempt to vest in the Commonwealth sovereign rights in inland waters lying within State boundaries. The expression "inland waters" is confined to waters of the sea. Even so, there will be waters below low-water mark which are on the landward side of the baselines of the territorial sea. A baseline drawn between adjacent headlands will enclose inland waters in the sense described standing between low-water mark and the baseline so drawn. These waters will stand outside State boundaries and will fall within s 10.
The saving provisions of s 14 are designed to preserve State rights over internal waters within the territory of a State, as for example, waters of the sea within a bay which is on the landward side of the baselines of the territorial sea. Consequently, the operation of ss 10 and 14, so it seems to me, do not operate so as to attempt to vest in the Commonwealth sovereignty over waters within the territory of a State.
In giving effect to the Convention on the Continental Shelf the Act is a valid exercise of the power conferred by s 51(xxix). It is in no sense inconsistent with the territorial rights of the States.
I would answer the question asked in the affirmative and dismiss the suits.