New South Wales and Others v Commonwealth

135 CLR 337

---

(Judgment by: Barwick CJ)

New South Wales and Others
vCommonwealth

Court:

Judges:
Barwick CJMcTiernan 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:
Barwick CJ

The Seas and Submerged Lands Act 1973 (the Act), passed by the Australian Parliament, came into operation on the date on which it received the Governor-General's assent, namely 4 December 1973. The Act has several recitals. They are as follows:--

WHEREAS a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over the territorial sea and the bed and subsoil of the territorial sea, are within the sovereignty of Australia:

AND WHEREAS Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone a copy of which in the English language is set out in Schedule 1:

AND WHEREAS Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources:

AND WHEREAS Australia is a party to the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 2:

The First Schedule to the Act contains the international "Convention on the Territorial Sea and the Contiguous Zone" and the Second Schedule contains the international "Convention on the Continental Shelf". Each convention was signed on behalf of Australia on 29 April 1958. Pursuant to Art 29 of the Convention on the Territorial Sea and the Contiguous Zone, and the deposit of the requisite number of instruments of ratification or accession, that convention came into force on 10 September 1964. Pursuant to Art 11 of the Convention on the Continental Shelf and the deposit of the requisite number of instruments of ratification or accession, it came into force on 10 June 1964.

By s 6, the Act declares and enacts 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 territorial sea is as it extends from time to time, the Governor-General having power from time to time by proclamation to declare the limits of the territorial sea or of any part thereof not inconsistently with the Territorial Sea Convention.

The Act, by s 11, declares and enacts 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". The Governor-General is given power from time to time by proclamation to declare, not inconsistently with the Continental Shelf Convention or other relevant international agreements to which Australia is a party, the limits of the whole or any part of the continental shelf of Australia (s 12).

There are three saving clauses of the Act which can conveniently be mentioned at this point. Section 14 saves the rights of the States of Australia in respect of waters of the sea of or within any bay, gulf, estuary, river, creek, inlet, port or harbour which before federation were, and which still remain, within the sovereignty of a State: superincumbent airspace and subjacent sea-bed and subsoil are included in the saving.

Section 15 excepts from Australian sovereignty declared by the Act wharves, jetties, piers, breakwaters, buildings, platforms, pipelines, lighthouses, beacons, navigational aids, buoys, cables or other structures or works.

Section 16 provides that the Act does not limit or exclude (a) the operation of any law of the Commonwealth or of a Territory in force at the date of the commencement of the Act or coming into force thereafter, and (b) the operation of any law of a State in force at the date of such commencement or coming into force thereafter, 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 Act.

No proclamation or other actions have been made or taken under the Act.

All States of Australia, namely, New South Wales, Tasmania, Western Australia, South Australia, Victoria and Queensland, commenced actions against the Commonwealth by statement of claim seeking declarations that the Act is wholly or partly invalid. In some cases, alternative declarations that the Act is invalid in respect of certain aspects of its operation were sought. The Commonwealth, by statement of defence, denies that the facts described in the statements of claim entitle the plaintiffs to any of the relief claimed and says that the Act is within power and valid.

Pursuant to s 18 of the Judiciary Act 1903 (Com), as amended, Menzies J directed the question, common to all the actions whether or not the Act is valid law of the Commonwealth to be argued before a Full Court upon many volumes of material entitled "Seas and Submerged Lands Act Litigation Joint Material", which brought together documents which all parties had agreed should be capable of being used by any of the parties in the argument of the question. The documents ranged widely but, due to the attitudes adopted by the parties, and the conclusions which I have reached, there is no need for me to discuss the relevancy or irrelevancy of any of this material.

The issues which arose from these pleadings and in the argument before the court were, first, is the Act a valid exercise of the legislative power given to the Parliament by s 51, particularly by par (xxix) and by s 122 of the Constitution; secondly, did the States, by reason of settlement as a colony of the Imperial Crown or by reason of the grant of self-government, have in 1900 sovereign or proprietary rights in or legislative power over (a) the territorial sea, or (b) the continental shelf; thirdly, did either the enactment of the Australian Constitution or the emergence of Australia as a nation state, vest in Australia either or both the territorial sea and the continental shelf.

The relationship of these issues each to other may not readily appear. But the States sought to invalidate the Act by, amongst other things, their claim to ownership or legislative power over the marginal seas adjacent to their coasts to the extent seaward of three miles, with the soil subjacent thereto and the airspace superincumbent thereupon and over the continental shelf and incline. Hence the second issue. The defendant Commonwealth, by way of reply to such a claim of the States, asserted that if prior to the enactment of the Constitution the States had such ownership or legislative power, it passed to the Commonwealth at the inception of the Constitution or at latest on Australia becoming an independent nation.

I shall deal with these issues and the submissions made in respect of them separately in the above order.

External affairs is a larger expression than foreign affairs, though the expressions are often used interchangeably. In my opinion, the description "external affairs" covers a larger area of legislative power than would the description "foreign affairs". The description of the subject matter of the power and the preference for external affairs rather than foreign affairs in the Constitution was doubtless designed to include within the subject matter inter-colonial matters which in Imperial days may not have been regarded as foreign affairs. But the motive of the choice of the description will not govern the content of the legislative power. That is not limited, in my opinion, to the making of arrangements with other nations or the implementation of such international arrangements as may properly be made in Australia's interest with other nations, though doubtless these may be the most frequent manifestations of the exercise of the power. The power extends, in my opinion, to any affair which in its nature is external to the continent of Australia and the island of Tasmania subject always to the Constitution as a whole. For this purpose, the continent of Australia and the island of Tasmania are, in my opinion, bounded by the low water mark on the coasts. On this question, I have expressed myself in R v Bull (1974) 48 ALJR 232 at 238. I agree with the Supreme Court of the United States in thinking that, in this area of discourse, "once the low-water mark is passed, the international domain is reached": United States v Texas (1950) 339 US 707 at 719.

Whether or not the legislative power with respect to external affairs is affected by the grant by the Constitution of legislative power with respect to other subject matters need not be decided in this case: nor is it necessary to attempt to define what is relevantly an affair. But it is important to remember that the power is both an independent power and a plenary power.

I mention, but to dismiss it, a submission based on the plurality of the expression "external affairs" which would deny that an external affair, because of its singularity, could fall within the power. There is, in my opinion, no substance whatever in the submission.

In my opinion, the Parliament has power to place Australia in a position to enjoy and exercise the terms of these conventions. The sovereignty and sovereign rights of which the conventions speak are available to Australia as a nation state without any executive or legislative act on its part. But the Act provides for the exercise of the sovereignty and those sovereign rights and authorizes the implementation of the conventions in material respects. I shall state briefly my reason for that conclusion.

The matters dealt with in and by these conventions are essentially matters of international law. The rights of which they speak are conferred on the nation state, which unquestionably is Australia and not the constituent States whether regarded individually or collectively. The assertion of the rights the conventions confer on the nation state depends on international acceptance and mutual concession. Questions concerning those rights have been settled by international conventions. Further, each of the conventions involves obligations to be performed by the nation state eg the obligation to afford innocent passage in the Convention on the Territorial Sea and the obligation not unjustifiably to interfere with navigation, fishing and the conservation of the living resources of the sea in the Convention on the Continental Shelf. Only the nation state could shoulder and perform these obligations which, in their nature and origins, are obligations between nation states. Whether or not these conventions should be implemented by Australia is itself, in my opinion, a question as to an external affair and within the competence of the Parliament.

In amplification of these conclusions it is important to observe and bear in mind that the concept of territorial waters or of a territorial sea derives entirely from international law, based on international comity. It is not a concept which, in my opinion, has any place in the domestic or municipal law of a country. Legislatures, with such plenary power as justifies the making of laws having an operation beyond the territory in respect of which such power exists, are not confined to the making of laws which operate only in the marginal seas. The test of validity of a law having an extra-territorial operation is its relationship to the peace, order and good government of the territory for the government of which the legislature has been constituted. If such a law did not so touch and concern that territory it would not be valid simply because it operated in the marginal seas. It would not achieve validity by its operation in the territorial sea. But if the legislature was the legislature of a nation state having the benefit of the relevant convention, it could make laws about and operating in the territorial seas.

The territorial sea is a part of the high seas which washes the shores of a nation state, including the shores of its dependent territories, in and over which other nation states according to international law concede to the nation state a right of dominion in respect of matters of high concern to the nation state as, for example, defence, quarantine and security generally, whilst reserving to the members of the international community certain specified rights. I assume for the purpose of these reasons, without expressing any opinion thereon, that the marginal seas surrounding islands owned by a nation state, whether as metropolitan territory or as a colony or part of a colony, are part of the territorial waters of the nation state.

The width of this area of the high seas over which this dominion is conceded has not been definitely fixed by international law beyond apparently the general acceptance that the aforetime range of cannon shot from the land would mark the outer limits of the least area of water included in the territorial sea. The adoption of this customary measure was itself dictated by consideration of defence and security.

When a nation state has dependent territories, international law concedes to the nation state the same dominion over an area of the high seas which washes the shores of its territories as it does in relation to waters which wash the territorial margins of the homeland. Consequently, it would be quite proper in the days of the British Empire to regard the Imperial territorial seas as including the portions of the high seas which washed the shores of Imperial colonial territories. It was in that sense that the Territorial Waters Jurisdiction Act 1878 was conceived and enacted.

If one had in the days of Empire to describe the Imperial territorial waters which were adjacent to an Imperial colony, one would not unnaturally speak of the waters as the colonial territorial waters, not in the sense that the colony itself had dominion over those waters but in the sense that it was a colony with a littoral, thus attracting to Great Britain as the nation state the international concession of dominion over them: the expression described the location of those territorial waters which washed the shores of the Imperial colonial territory. The dominion over those waters was, in my opinion, exercisable in the case of the British Empire by the Imperial executive or Imperial legislature.

The powers conceded internationally to the nations with a littoral were so extensive; that is to say, the dominion over territorial waters or seas was so large, that it was convenient to refer to the outer margin of the territorial waters as the territorial limit of the nation. With this I dealt in my reasons for judgment in Bonser v La Macchia (1969) 122 CLR 177 ; [1969] ALR 741. But the international concession was not that the territory of the nation, in a proprietary or physical sense, was enlarged to include the area of water in the territorial sea or the area of subjacent soil. Indeed, the very description "territorial waters" emphasizes, in my opinion, that they are waters which wash the shores of the territory of the nation state, otherwise regarded as ending at the margin of the land.

It is true that Lord Macnaghten in Carr v Fracis Times & Co [1902] AC 176 at 183, said that the territorial waters of the independent state of Muscat were "for this purpose, as much a part of the Sultan's dominions as the land over which he exercises absolute and unquestioned sway". But it is clear that his Lordship meant no more, in qualifying his statement with the expression "for this purpose", than that in relation to the authority given by the Sultan to the British ship to do in the territorial waters of Muscat the particular acts in question, the Sultan's edict was as effective as it would have been if made as to comparable acts on the land of Muscat. Clearly, the giving of the authority was within the "sovereignty" or dominion, however the matter be regarded, of the Sultan in the territorial waters of Muscat. In my opinion, Lord Macnaghten's expression does not support the submission that territorial waters are an extension of the territory of the coastal state.

Thus the very existence of a territorial sea depends on international agreement, established in earlier times by custom or practice amongst nations or a significant number and range of them, but now most definitively by international convention. The first such convention is set out in the First Schedule to the Act. The convention concedes to the nation state with a littoral, a "coastal State", to use the terms of the convention, what it describes as sovereignty over the territorial sea, its bed and subsoil and superjacent airspace. This international concession extending to the sea-bed and airspace perhaps surpasses any dominion theretofor accorded by custom or practice between nations. But however that may be, the conceded sovereignty undoubtedly now depends upon the terms of the convention. The Act, in my opinion, uses the word "sovereignty" in the same sense as it is used in the convention. The Act, in my opinion, does not purport to take any greater power over the subject matter of the conventions than they confer on the coastal state. Sovereignty is a word, the meaning of which may vary according to context. The same may be said of "sovereign rights". I find no need in order to dispose of this issue to expound upon the meaning either in the context of these conventions and as used in the Act. At the least, sovereignty includes the dominion which was earlier conceded by international custom: it may possibly enlarge it. Sovereign rights at least imply exclusive and paramount rights to exploit together with all the power necessary to secure the principal rights. But the important thing is that whatever the extent of the power or jurisdiction sovereignty or sovereign rights embraces, that power, jurisdiction or authority is conceded internationally to the nation state and depends on international mutuality.

Consequently, the acceptance of the concession and the assertion of the internationally conceded rights are, in my opinion, pre-eminently external affairs. I have no doubt that an Act of the Parliament which accepts that sovereignty and places itself in a position to assert it and subject itself to its obligations is an Act with respect to external affairs within the meaning of the Australian Constitution. The Act selects the organ of government, namely the Executive, to exercise the sovereignty over the territorial sea and the sovereign rights over the continental shelf which the conventions make available. It also empowers the Executive to implement the conventions in certain respects (ss 7 and 12). The Act is, in this respect, a valid exercise of legislative power with respect to external affairs.

Objection was raised, however, to the provision of the Act vesting the sovereignty in the Crown in right of the Commonwealth. It was said that this amounted to the creation in the Crown of a power which could not constitutionally be so vested. I am unable to accept this proposition. The Crown is the appropriate repository of international rights and obligations. In right of the Commonwealth, the Crown represents Australia internationally. Its conduct in that connection is determined by the advice of the Executive Council. Sections 62 and 64 of the Constitution introduced responsible government: on the one hand, leaving aside most exceptional circumstances, the Crown acts on the advice of its Ministers and, on the other hand, the Ministers are responsible to the Parliament for the actions of the Crown. In the long run the Parliament, comprising the House of Representatives and the Senate, is in a position to control the Executive Government. In my opinion, the sovereignty and sovereign rights conceded to the nation by these conventions are properly and validly vested in and made exercisable by the Crown in right of the Commonwealth. The Act does not purport to give legislative power to the Crown: it does not purport to give to the Crown in right of the Commonwealth any right or power in relation to the "internal" as distinct from external affairs of the Commonwealth than the Crown already has under the Constitution. It if should become necessary for the purpose of the convention to make laws operating within Australia, it would be necessary for the Parliament to make such laws: the validity of any such law would depend on its substantive relationship to external affairs, in this case, the relevant convention. But it is quite unnecessary for the disposal of these cases to explore the possible range of laws which could be so made.

In R v Burgess ; Ex parte Henry (1936) 55 CLR 608 ; [1936] ALR 482 the court had to consider the validity of Regulations made under an Act of the Parliament which authorized, amongst other things, the making of Regulations for the purpose of carrying out and giving effect to an international convention for the regulation of aerial navigation. The Act in that respect was held to be a valid exercise of the power granted by s 51(xxix), "external affairs". The ambit of the Regulations made under the Act was examined to determine whether they were in truth Regulations to carry out the terms of the convention. Because the majority of the court was of opinion that they did not, the Regulations were held invalid. But it is clear from the reasons for judgment that if the Regulations had been apt to carry out the convention, the fact that they operated upon matters which otherwise did not fall within the power of the Parliament would not have invalidated them. Being laws validly made under the plenary power given by s 51(xxix), they would not have needed any other power to support them. Being in themselves valid, they could operate in the States in respect of matters over which the Parliament otherwise had no legislative power: further, being valid, they would supersede any inconsistent law of a State. So it would be in relation to laws made implementing these treaties. The ambit of the power with respect to external affairs cannot be restrained by any reserved powers doctrine. However, no such problem directly arises in this case, though the plenary nature of the independent legislative power with respect to external affairs has some relevance to the later issues in the case.

For the reasons I have given, it is my opinion that the Act is a valid law with respect to external affairs.

Some reference was made in argument to s 122 as a source of power to support the Act. In the view I take of the width of the power with respect to external affairs, I find no need to seek reliance in s 122. Elsewhere I have expressed the view that the Imperial territorial waters in due time passed to Australia as the nation state and that in truth no territory of the Commonwealth ever had territorial waters of its own: see Bonser v La Macchia , supra, (122 CLR at 191-2). But, upon a territory being given its independence of Australia and ceasing to be a dependent territory, the marginal seas become, by virtue of that very independent national status, the territorial seas of the new nation state.

I turn now to the second issue. In this connection, it is submitted that the Australian colonies in 1900 had proprietary rights in the subsoil of the territorial sea washing their shores and dominion over those seas as in international law. The submission goes so far as to assert that the boundaries of each colony were to be found at the limit of three nautical miles from their respective coasts and that the waters and their subsoil were part of the waste lands of the Crown. As an alternative, it was submitted that legislative and executive authority was vested in the legislative and government of each colony over the territorial seas and the subjacent soil as part of the waste lands of the Crown, at least from time to time a colony was granted self-government. It was said that the territorial seas were part of the "King's waste" and were included in the grant of legislative power at the time of the institution of self-government in the colonies.

As a result of these assertions, it was submitted that the continental shelf and the territorial seas and subsoil were vested in the colonies in 1900, either by original settlement or upon the grant of self-government.

Because of these submissions, it was finally submitted that ss 106 and 107 of the Constitution maintained these property rights and legislative power in the States so that the Parliament could not by the exercise of its legislative power with respect to external affairs trench upon such properties and rights.

To some extent I dealt with the matters thus raised in my reasons for judgment in Bonser v La Macchia , supra. Having now heard full argument addressed to this issue, and having considered the many documents tendered in the case and the various decisions to which we were referred, I am confirmed in the opinion which I then expressed, namely, that the colonies in 1900 had neither proprietary rights in, nor legislative power over, the territorial waters which washed their shores, nor in or over the subjacent soil or superjacent airspace except in so far as they had legislative power to enact extra-territorially operating laws. Nor did they have any rights in the continental shelf and incline.

The question in this connection is not what rights the Imperial Crown had, or asserted itself to have, in areas of the sea not within the jaws of the land. Nor is it what rights were claimed on behalf of Scotland in areas of the sea, or of arms of it. Due to the undoubted sovereignty of the United Kingdom it was free for its own purposes to make and enforce within its own territory any claim to any part of the high seas. The remarks of Lush J in R v Keyn (1876) LR 2 Ex D 63 at 238-9, are significant in this connection. He said that, though at common law the realm ended at low water mark and though the jurisdiction of the Admiral did not extend to acts on a foreign ship on the high seas, albeit within a marine league of the shore, the Parliament could alter that situation if it so desired. But of course, whilst for its own domestic purposes it could pass without restriction laws operating beyond the domain, only such of those laws as operated within the area conceded to the nation by the comity of nations could have validity at international law.

A great deal of time and effort was expended in the preparation for and in the hearing of the cases in an endeavour to establish that Great Britian claimed, and it was submitted rightly claimed, vast areas of sea and sea-bed as part of the King's realm or of the King's waste. But there is no need to express any definitive opinion on these submissions in order to decide the present case. One can say in passing that it is quite apparent that views on the question of what, for domestic purposes, Great Britain properly claimed have varied from time to time and at best any conclusion on that question may be fraught with considerable uncertainty. But, in my opinion, the question of what Great Britain or the Imperial Crown claimed to own or to control is not really relevant to the question which lies at the root of the solution of the problem which is raised by this second issue. Suffice it to say that the Imperial Crown, as representing the Empire, had at all relevant times dominion according to international law over the Imperial territorial seas. Had the Imperial authorities been minded to do so, they could have placed such part of these territorial waters as washed the shores of a colony within the control of the government of that colony as representing the Imperial Executive and Legislature. But Great Britain as the nation state must have remained responsible internationally for the performance of the obligations associated with the territorial sea. The Imperial Parliament could have authorized the executive to place the colonial territorial seas under the control of the appropriate colony: but no statute of the Imperial Parliament did so.

The relevant question under this issue, therefore, is whether, in establishing a colony and later in giving the colony self-government, the Imperial Crown or the Imperial Parliament vested in the colony either proprietary rights or legislative power in the specific areas of sea and subjacent soil in question in these cases.

What was involved in the process of colonization in the case of the Australian colonies was the placing under delegated government defined areas of land. No alienation of property or of rights was involved. Nothing in the least comparable to the consequences of a conveyance of land occurred upon or by the act of establishing a colony. No ad medium filum analogy is available. The colonies were colonies in the classical sense of that word. They were settlements of British people. They did not involve any conquest; nor the displacement of any ruler or government in charge of the land to be settled.

In the inception of the first Australian colony, a Governor with extensive but defined powers, was commissioned to govern a definite area of land. Examination of that commission and of the instruments setting up the other colonies, or severing off parts of the original colony, amply supports the conclusion. My brother Jacobs, whose reasons I have been able to read, amply examined those instruments. No power over Imperial territorial waters was granted expressly or impliedly. The colonists inherited the common law: but it operated only in the realm which ended at low water mark. This was decided in R v Keyn , supra, a decision with which I respectfully agree. See also Harris v Owner of the Steamship Franconia (1877) LR 2 CPD 173 and Blackpool Pier Co Ltd v Fylde Union Assessment Committee (1877) 41 JP 344. Thus, property in and power over the territorial seas could not have come by the common law. As I have already mentioned, no statute and no executive act authorized by statute conferred upon the colonies property in or legislative power over the territorial seas. Later history in connection with the control of the waste lands of the Crown in the colonies makes this clear.

Imperial policy, however, in the light of the experience with the American colonies, favoured in relation to the Australian colonies, first, the creation of small rather than large land holdings -- a policy sharply reversed during the governorship of Lachlan Macquarie, and, secondly, progressive increase of legislative power in representative bodies in the colonies. Each policy was designed to avoid a repetition of the American rebellion. Thus, the Imperial Government progressively allowed the Governors, and subsequently the representative assemblies, to make provisions operating outside the precise territorial limits of the land in relation to matters of purely colonial concern being usually matters intimately connected with the welfare of the colony and of the colonist. But the control of the disposal of the unalienated lands in the colonies was long retained by the Imperial Government for Imperial purposes. The Imperial authorities, apart from any other matter of policy, desired to use part of the proceeds of the disposal of the waste lands to assist the financing of migration from England to the colonies. Indeed, control of the unalienated land may be said to have been wrested by the colonists from the Imperial authorities by continued argument and protestation. However, in July 1855, nearly 70 years after the first settlement, the Imperial Parliament passed "an Act to repeal the Acts of Parliament now in force respecting the Disposal of the Waste Lands of the Crown in Her Majesty's Australian Colonies" which placed, or enabled the placement of, the control of the disposal of such waste lands in the hands of the legislatures of the colonies. It is clear to demonstration that the waste lands only included the land within the colonies and did not include any part of the high seas or subjacent soil. In earlier legislation relating to the waste lands, viz 5 & 6 Vict c 36, passed in June 1842, it is made abundantly clear that only land is included in the description "waste lands". In authorized sales of such lands, there were to be three classes: town lots, suburban lots and country lots, these classes fully exhausting what was included in the description "waste lands". The Act of 1842 was repealed, along with other Acts on the subject, by the Act of 1855. There can be no doubt that the description "waste lands" in this Act was the same as that in the earlier Acts.

Not only was the territorial sea or its subjacent soil not part of the waste lands of the Crown, the disposal of which was thus placed by the Imperial legislation under the control of the colonial governments, but the fact of that legislation clearly indicates that the legislative control of the territorial seas and subjacent soil could not have been given to the colonial governments at any earlier time. To have given proprietary or legislative rights over part of the sea and sea-bed whilst denying any right or power in the disposal of the land would have been absurd. That the Imperial authorities had international obligations in respect of the territorial waters makes such a course more than unlikely.

Thus the history of the contest in Australia as to the power of disposal of the waste lands of the Crown, lands which did not include any part of the high seas, tends to deny that either by original settlement or by any other act of the Imperial authorities, the territorial seas and subjacent soil were placed or brought within the territory over which powers of government were given by that settlement. The Crown Lands Acts, eg of New South Wales and of Tasmania, made it quite clear that the Crown lands, the substitute expression for the waste lands, included and subjected to the statutory requirements only land above high water.

But it is said that on the grant of self-government to a colony, legislative power over the territorial sea and subjacent soil -- and, indeed, over the continental shelf and incline -- was granted to the colony. In so far as the concurrence of the operation of the Waste Lands Act with the grant of self-government is concerned, what I have already written suffices to answer the proposition.

However, and in any case, there is nothing in the Constitution granted to any of the colonies which supports the view that thereby the boundaries, or the territorial description, of the colony were or was enlarged. Local autonomy replaced representative government of limited capacity; but the territorial description remained. Of course, thereafter the Crown accepted the advice of colonial ministers; but still only in relation to colonial affairs, of which, in my opinion, the control of the territorial seas and subjacent soil did not form part.

A large number of opinions of law officers of the Imperial Crown were pressed upon us in an endeavour to establish the proposition that the colonies possessed, as it were in their own right, territorial seas. Of course, however persuasive in some circumstances, and however eminent such law officers were or proved to be, their opinions are not precedents nor, in any sense, binding. Their opinions speak of the territorial seas of the colony, a description which, though involving a degree of ambiguity, I am prepared to assume meant, without being convinced that it did mean, that such seas were under the control of the colony. But I have no doubt that these law officers, who did not have to put their minds to the question now before this court, could quite easily speak of the territorial seas of the colony and conclude that a law was good because, though plainly connected with the colony's affairs, it operated in the territorial sea. Yet it seems to me that if they meant such seas were either colonial "property" or under colonial dominion, they were under a basic misconception. The territorial seas in themselves were not, in my opinion, source or subject of colonial power or authority. The colonial laws which those officers supported in their opinions all touched and concerned the colony and its welfare and in later times would be accepted as valid extra-territorially operating laws. Further, the Imperial colonial policies of the times, to which I have already made reference, need to be borne in mind in reading and evaluating these opinions. I am unable to give definitive weight to these various opinions of Imperial law officers to which we have been referred.

For reasons which I expressed in Bonser v La Macchia , supra, and in R v Bull , supra, and in what I have so far written in these cases, I am of opinion that low water on the coasts of the colonies formed the relevant part of the boundary of each -- islands specifically made part of a colony excepted -- and that no colony in 1900 had obtained any proprietary or legislative or other rights over the territorial seas or the subjacent soil. These and their control as such remained with the Imperial Government. Such territorial seas as washed the shores of islands forming part of the colony are, in my opinion, in the same position as the territorial waters washing the shores of the mainland of the colony.

The third issue might properly be said not to arise if what I have already written is acceptable. But I propose to express myself about it, as, in my opinion, it does provide an opportunity of disposing of these cases upon grounds essentially involved in the creation of a federation such as that for which the Australian Constitution provides.

In dealing with the preceding issue, I have concluded that in 1900 none of the colonies had proprietary rights in the territorial sea, its subjacent soil or superjacent airspace or in the continental shelf and incline; and that none of them had legislative power over any of those items. However, for the purpose of discussing this third issue, I assume that, contrary to my expressed view, the Australian colonies did have such rights and such legislative power. Both must have been derived from the Imperial Parliament or Executive and both were subject to the power of the Imperial Parliament to withdraw them and vest them elsewhere.

The Australian Constitution was an Act of the Imperial Parliament. Covering cl 9 gave effect to the agreement of the people of the Australian colonies to unite in one indissoluble union. It conformed to the wishes of those people by enacting a federal Constitution. A new colonial polity was brought into existence. There was no statement of the territory of the new entity, the Commonwealth of Australia. But it is evident that it was the sum of the colonial territory which had been placed under government by the Imperial authorities, with a territorial boundary ending at low water mark. On the passage of the Imperial Act, those colonies ceased to be such and became States, forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Constitution of the Commonwealth. But those constitutions and the powers of the States were subjected to the Australian Constitution. They were not the same as they had been before federation. The constitutions were continued "subject to this constitution". The federal nature of the Constitution is seen in the distribution of constitutional power between the new Commonwealth and its constituent States, specific legislative topics being assigned to the Commonwealth and the residue to the States, paramountcy being given to Commonwealth laws where inconsistency with State laws exists. That residue is only discoverable when the full extent of Commonwealth power has been elucidated.

As already observed, power with respect to external affairs was assigned to the Commonwealth. That power at the very least included all matters of international concern. As I have already said, "once low-water mark is passed the international domain is reached".

Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth, it must necessarily of its nature be so as to international relations and affairs. Only the Commonwealth has international status. The colonies never were and the States are not international persons.

Whilst the new Commonwealth was upon its creation the Australian colony within the Empire, the grant of the power with respect to external affairs was a clear recognition, not merely that, by uniting, the people of Australia were moving towards nationhood, but that it was the Commonwealth which would in due course become the nation state, internationally recognized as such and independent. The progression from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs. Section 61, is enabling the Governor-General as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided. That prospect in due course matured, aided in that behalf by the Balfour Declaration and the Statute of Westminster and its adoption.

A consequence of creation of the Commonwealth under the Constitution and the grant of the power with respect to external affairs was, in my opinion, to vest in the Commonwealth any proprietary rights and legislative power which the colonies might have had in or in relation to the territorial sea, sea-bed and airspace and continental shelf and incline. Proprietary rights and legislative powers in these matters of international concern would then coalesce and unite in the nation. That, in my opinion, was the intendment of the Constitution. It is far easier to conclude that the Act of the Imperial Parliament setting up the federal Constitution intended to vest such matters of international consequence in the new Commonwealth, withdrawing them from the former colonies, than it was to decide that when an American state, already an independent nation in possession of international rights, entered the Union, these rights became vested in the United States. Yet that is received doctrine in the United States expressed in decisions which have recently been affirmed: see United States v California (1947) 332 US 19United States v Texas , supraUnited States v Louisiana (1950) 339 US 699 and United States v Maine (1975) 43 LW 4359. The Supreme Court's reasons were applicable to the circumstances of the states originally entering the Union. These were then independent nation states. Yet without so clear an indication as the grant of the power with respect to external affairs, those states did not retain any rights or legislative power over the territorial sea, subsoil, etc. Later entrants to the Union, coming in on an "equal footing", were in the same situation.

This result conforms, in my opinion, to an essential feature of a federation, namely, that it is the nation and not the integers of the federation which must have the power to protect and control as a national function the area of the marginal seas, the sea-bed and airspace and the continental shelf and incline. This has been decided by the Supreme Courts of the United States and of Canada: see above citations and Reference re Ownership of Off-shore Mineral Rights (1967) 65 DLR (2d) 353. I am satisfied with the reasons given by those courts for their conclusions. The Canadian Supreme Court reached its conclusion after a close examination of the case law. I do not disagree with anything that is said in the Supreme Court's judgment about that law, though for my part I have found it unnecessary to deal with it in these my reasons. However, the Supreme Court's conclusion depends in no small degree upon the fact of Canada's independent nationhood and its recognition as such by the nations of the world. Appropriately, it is concluded that such international rights and obligations as derive from the convention on the territorial sea devolve on Canada and not on any province of the federation. I can find no reason to differentiate in relevant respects the circumstances of this federation from those of the other great federations, except to say that the result of the cases to which I have referred more obviously flows in the case of our Constitution.

It is my opinion, therefore, that upon the enactment of the Constitution, any rights or powers which the former colonies might have had in the territorial sea, sea-bed and airspace or in the continental shelf and incline became vested in the Commonwealth. The emergence of Australia as an independent nation state confirmed this situation.

Therefore, however the matter be viewed, in my opinion, the Act is valid in enacting the sovereignty and sovereign rights in respect of the territorial sea and contiguous zone and of the continental shelf for which the respective conventions provide. That sovereignty and those sovereign rights are exercisable in and in respect of the territorial sea and the continental shelf. The Act, in my opinion, validly vests that sovereignty and these sovereign rights in the Crown in right of the Commonwealth but any Act or law operating within Australia to implement either of those conventions or the powers they give must be authorized by a valid law of the Commonwealth. But if there is such a law, it may operate on matters and things which otherwise could not be the subject of a law of the Parliament.

I would dismiss all actions.