New South Wales and Others v Commonwealth

135 CLR 337

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(Judgment by: McTiernan J)

New South Wales and Others
vCommonwealth

Court:

Judges: Barwick CJ

McTiernan JGibbs 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

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Judgment by:
McTiernan J

The question in these proceedings for determination by the Full Court is whether the Seas and Submerged Lands Act 1973 (Com) is a valid law.

The seas and submerged lands are not within Australia's land territory or its inland waters. The Act presumes that a belt of sea adjacent to the coast of Australia and Tasmania is a territorial sea for the purpose of the international Convention on the Territorial Sea and Contiguous Zone and that the sea-bed and subsoil of submarine areas adjacent to the coast, but outside the area of the territorial sea of Australia, is a continental shelf for the purposes of the international Convention on the Continental Shelf.

Australia is a State in the eye of international law and being a coastal State and a party to each of these conventions it was its right and duty to legislate so as to receive these articles into Australian municipal law. The Parliament did this by embodying in the Act under consideration, a Schedule setting out verbatim the articles of the former convention and a Schedule setting out verbatim the articles of the latter convention. Each Schedule is part of the Act and of the enactment: Craies on Statute Law 7th ed pp 224-5.

The Act implements the stipulations in the Convention on the Territorial Sea as to the limits thereof (ss 7-9) and the stipulations in the Convention on the Continental Shelf as to the limits thereof.

The long title of the Act indicates that the subject of the Act is sovereignty in respect of regions beyond Australia's territorial jurisdiction.

The preamble of the Act recites that the territorial sea of Australia, the airspace over it and the soil beneath it are "within the sovereignty of Australia". There is also a recital about the continental shelf. This is:--

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:

The territorial sea and its soil ( mare et solum ) and the continental shelf ( solum ) are in an area proper for the operation of rules of international law.

As regards "sovereignty" Wheaton said:--

Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally.

Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public laws, droit public interne , but which may more properly be termed constitutional law.

External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe , but may more properly be termed international law." ( Elements of the International Law pp 28-29 -- English edition.)

The controversial sections of the Act are ss 6, 10 and 11. Each is in form a declaratory provision. The presumption against giving an Act by construction a retrospective operation is not applicable to a declaratory Act: Craies on Statute Law , supra, pp 58, 395. That a retrospective operation to 1 January 1901 is intended appears from s 14 (a), a saving clause of the Act.

The preamble provides an explanation of the terms used in ss 6, 10 and 11.

The words of the sections are 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.

The object of each section is, in my opinion, to give legal efficacy to the rules of the convention to which it relates. In effect each section authorizes the Executive Government of the Commonwealth to administer the rules, to fulfil the duties of Australia as a coastal State under the rules, and to exercise the rights given by the rules to a coastal State. Section 11, in particular, authorizes the Executive Government of the Commonwealth to exercise the sovereign rights of Australia, in its capacity as a coastal State, which are mentioned in the Convention on the Continental Shelf. The rules and the duties and rights of Australia under the rules are external affairs from Australia's standpoint. The parliament has legislated in this Act to incorporate them verbatim in the Act, and the Act makes no addition to or omission from them. The rules of international law are matters that concern the Crown and fall within its prerogative in relation to foreign affairs. This prerogative could not be used in any way that would conflict with the articles of either of these international conventions if validly carried into effect by this Act. The power to make laws with respect to external affairs authorized Parliament to incorporate the articles in the Act, thus giving to them the force of laws of the Commonwealth. In R v Burgess ; Ex parte Henry [1936] ALR 482 ; 55 CLR 608 at 644, Latham CJ said that s 51(xxix) of the Constitution gave Australia "full control of her external affairs ... and ... power to legislate to give effect to international obligations binding the Commonwealth or to protect national rights internationally obtained by the Commonwealth whenever legislation was necessary or deemed to be desirable for this purpose". In the same case Latham CJ said (55 CLR at 645): "In fact other countries deal with Australia and not with the States of the Commonwealth and this practice follows the evident intention of the Constitution."

The States dispute that at the establishment of the Commonwealth the sovereignty over the territorial sea of Australia did arise in the Crown in the right of the Commonwealth, as the Act purports to declare. The States claim that, as colonies, the dominion of each of them over its territorial waters was established by international law, and, broadly, the dominion extended from low water mark a marine league outward to the open sea. This means that the sea, the soil beneath it within that limit, and airspace over it was for all purposes part of a colony's territory.

In R v Keyn (1876) 2 Ex D 63, Cockburn CJ held, in effect, that English law had never recognized that the English State had a general dominion over territorial waters; that, except for special purposes defined by statute, it held such waters to be part of the high seas. The judgment of Cockburn CJ and of the majority is an answer to the claim that any colony had been invested by Imperial authority with territorial jurisdiction extending over territorial waters.

The boundary limits of the colonies, read in the course of the argument, do not satisfy me that the boundary of any colony was set in the high seas.

The sovereignty to which the Act relates is over regions which were not land territory or internal waters of any colony at the time of the establishment of the Commonwealth. It follows from this that at the time of the establishment of the Commonwealth they did not become its land territory or internal waters. In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers Case ) (1920) 26 ALR 337 ; 28 CLR 129, Knox CJ, Isaacs, Rich and Starke JJ, in a joint judgment, said (28 CLR) at 152-3: "The Act 63 & 64 Vict. c. 12, establishing the Federal Constitution of Australia, being passed by the Imperial Parliament for the express purpose of regulating the royal exercise of legislative, executive and judicial power throughout Australia, is by its own inherent force binding on the Crown to the extent of its operation. It may be that even if sec. V. of the Act 63 & 64 Vict. c. 12 had not been enacted, the force of sec. 51 of the Constitution itself would have bound the Crown in right of a State so far as any law validly made under it purported to affect the Crown in that right; but, however that may be, it is clear to us that in presence of both sec. V. of the Act and sec. 51 of the Constitution that result must follow. The Commonwealth Constitution as it exists for the time being, dealing expressly with sovereign functions of the Crown in its relation to Commonwealth and to States, necessarily so far binds the Crown, and laws validly made by authority of the Constitution, bind, so far as they purport to do so, the people of every State considered as individuals or as political organisms called States -- in other words bind both Crown and subjects." The functions of the Crown include the prerogative of the Crown in relation to foreign affairs. Even if the most limited criterion be applied, a country's territorial waters, the soil beneath them, and the country's shelf, in themselves, have an external aspect and are matters of the country's foreign relations.

Professor Holdsworth in Essays in Law and History wrote, on the topic "The Relation of English Law to International Law" the following:--

In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become, a source of, English law.

The Territorial Waters Jurisdiction Act 1878 gave the courts the jurisdiction which the minority of judges in this case had held that they possessed; and its declaratory form is some evidence that the legislature considered that their views were correct. Nevertheless, I think that the opinion of Cockburn CJ and the majority of the judges had come to be more in accord with the principles of modern English law than the opinion of the minority which represents the older view that international law is per se part of the law of England" (p 267).

I quote a statement in Wheaton's Elements of International Law on maritime territorial jurisdiction which reads as follows: "The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State. The general usage of nations super-adds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation."

The English edition published 1878 adds the following: "This statement requires some qualification. It has now been decided in England by the celebrated case of The Franconia [see R v Keyn (1876) LR 2 Ex D 63] that the courts of this country have no jurisdiction over a criminal offence committed on board a foreign ship while that ship is on the open sea, but within three miles of the shore of England. That the question is one of great difficulty and doubt, is shown by the fact that of the fourteen judges who attended during the arguments in The Franconia , seven pronounced against the jurisdiction, while six claimed it. One who agreed with the majority died before judgment was delivered. This case decides that by English law as at present administered, no jurisdiction is claimed over criminal offences committed beyond low water mark, unless they have taken place on board a British ship, or within waters admitted on all hands to be territorial, such as ports, harbours, bays, etc. But it still remains a doubtful question, whether any portion of the open sea may be claimed as part of the territory, and if so to what extent, and for what purposes, it may be so claimed.

No precise rule can be derived from the writings of publicists. The suggestion of Bynkershoek given in the text, that the sea, as far as a cannon shot will reach from the shore, should belong to the State it borders, has been adopted by many writers, and has generally been assumed to be a distance of three miles. It is evident, however, that on this assumption, consistency requires the limit to be increased in proportion to the increased range of modern artillery. But in the practical application of the rule, in respect of the particular distance, and in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, a great difference of opinion is to be found. The only point upon which publicists are more or less unanimous, is that some zone of sea (most of them fix it at three miles), is for some purposes subject to the dominions of the local State. 'Even if entire unaniminity had existed,' said Lord Chief Justice Cockburn, 'the question would still remain how far the law, as stated by the publicists, had received the assent of the civilised nations of the world .... The question is not one of the theoretical opinion, but of fact, and fortunately, the writers upon whose statements we are called upon to act, have afforded us the means of testing those statements by a reference to facts. They refer us to two things, and to these alone -- treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the State shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in ships of other nations, has never been made the subject-matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic discussion .... When the treaties referred to by text writers are looked at, they will be found to relate to two subjects only, -- the observance of the rights and obligations of neutrality, and the exclusive right of fishing.' in these respects nations have followed text writers, and adopted three miles as a convenient distance, not as matter of existing right, but as matter of mutual concession and convention. Such treaties would be superfluous, if the general assent of nations had given to each a three-mile belt of the sea surrounding its shores. As regards usage, 'the only usage found to exist, is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined.' His Lordship comes to the conclusion that 'it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes , to the local State,' and that 'a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other States. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but from the acquiescence of other States, some outward manifestation of the national will, in the shape of open practice, or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control'" (pp 237-9).

It would be strange if the Executive Government of the Commonwealth which, as Latham CJ said in R v Burgess ; Ex parte Henry , supra, can deal administratively with the external of the Commonwealth, could not negotiate and ratify an international convention settling the rules of international law applicable to the subjects of the conventions to which the Act gave effect. It is not inconsistent with the Commonwealth of Australia Constitution Act (63 & 64 Vict c 12), which, indeed, gave effect to the agreement of the people of the colonies to unite in an indissoluble Federal Commonwealth under the Crown and under the Constitution thereby established. The Constitution is s 6 of that Act.

In Wheaton's Element of International Law the following statement on "Federal Unions" is made: "... the federal government created by the act of union is sovereign and supreme, within the sphere of the powers granted to it by that act; and the government acts not only upon the States which are members of the confederation, but directly on the citizens. The sovereignty, both internal and external, of each several State is impaired by the powers thus granted to the federal government, and the limitations thus imposed on the several State governments. The compositive State, which results from this league, is alone a sovereign power" (p 57).

Halls International Law 6th ed, states: "The distinguishing marks of a federal state upon its international side consist in the existence of a central government to which the conduct of all external relations is confided, and in the absence of any right on the part of the states forming the corporate whole to separate themselves from it. Under the Constitution of the United States, for example, the central authority regulates commerce, accredits diplomatic representatives, makes treaties, provides for the national defence, declares war and concludes peace; the individual states, on the other hand, are expressly forbidden to enter into any agreement with foreign powers without the assent of Congress, to maintain military or naval forces, or to engage in war" (pp 24-5).

Section 61 (executive power) of the Constitution of Australia is applicable in relation to external affairs and s 51(xxix) is a power to make laws with respect to that subject matter. The Act under consideration here is not extraordinary, even though Australia is a Federal Commonwealth.

The land underlying the sea adjacent to the coast of the States respectively, or the soil that underlies it or the sea or any part of the shelf of that land are not mentioned in the Constitution. No rights of the States in respect of this land or sea are implicitly reserved by the Constitution. As a whole these regions are an appendage of the continent and a sphere proper for the operation of international law. A necessary intendment of the Act, 63 & 64 Vict c 12, would, I think, be that the sovereignty which the Crown possessed in respect of such regions would be exercisable by the Executive Government of the Commonwealth in accordance with the Constitution. In my opinion ss 6, 10 and 11 respectively accomplish that object.

The Seas and Submerged Lands Act 1973, is, in my judgment, a law entirely supported by s 51(xxix) of the Constitution and is not in conflict with s 123 of the Constitution.