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

New South Wales and Others v Commonwealth
135 CLR 337

(Decision by: Stephen J)

New South Wales and Others
vCommonwealth

Court:

High Court of Australia

Judges: Barwick CJ
McTiernan J
Gibbs J

Stephen J Mason J
Jacobs J
Murphy J

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

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

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

Sydney

Decision by:
Stephen J

By the Seas and Submerged Lands Act 1973 there is declared and enacted to be vested in and exercisable by the Crown in right of the Commonwealth the sovereignty in respect of the territorial sea of Australia and of any waters of the sea on the landward side of the baseline of that sea, its bed and subsoil and the airspace over it; likewise as to the sovereign rights of Australia in respect of its continental shelf for the purpose of exploring it and exploiting its natural resources.

Each of the six States of Australia challenges the constitutional validity of this Act, denying to the Commonwealth Parliament the particular legislative power which by this enactment it has purported to exercise.

The Commonwealth supports its validity by reliance upon a variety of sources of legislative power, the external affairs power -- s 51(xxix), its power to legislate for the government of any territory -- s 122, its power to legislate with respect to matters incidental to the execution of its executive power -- s 51(xxxix) and s 61, and the power inherent in it as an international person to declare its sovereignty and sovereign rights and enact them for the purposes of municipal law, aided, if necessary, by reference to s 51(xxxix).

A consideration of each of these sources of legislative power requires first an understanding of what was the status of the so-called territorial sea, that is, broadly speaking, the open seas lying within three miles of Australian coasts, and which I shall call league seas, immediately before the passing of this Act. Only then can the application to them of each of these suggested sources of legislative power to be determined. I will, for the moment, defer consideration of the power to legislate concerning either Australia's continental shelf or the waters to landward of the baseline of league seas; in due course it will be necessary to turn to each of these.

Because on first settlement Australia was but a part of the British Crown's overseas possesions it is important, at the outset, to determine what interest or rights the Crown then possessed in league seas, whether those of the United Kingdom or of its overseas possessions.

I regard the status of the league seas off the coast of British possessions as having been authoritatively determined by the decision of their Lordships in the Judicial Committee. There are three decisions, reported in three successive years, in which they have been referred to. In the first in point of time, Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153, Sir Robert Finlay, who led for the appellant, sought to canvass the question of the title of the Crown to the solum of league seas but was stopped, their Lordships stating that they did not propose to deal with that question. When Viscount Haldane came to speak for their Lordships he said that it was unnecessary for the resolution of the appeal to express "any opinion on the question whether the Crown has a right of property in the bed of the sea below low water mark to what is known as the three mile limit". His Lordship (at 174) distinguished between the three mile limit".a concept comparatively modern in origin, and "'the narrow seas' limit discussed by the older authorities, such as Selden and Hale, a principle which may safely be said to be now absolute". He said that it was undesirable, pending international review of the matter at a conference of the nations concerned, that any municipal tribunal should pronounce upon questions concerning the three mile limit and that the conflict of opinion which arose in R v Keyn (1876) 2 Ex D 63 would in the meanwhile have to remain unresolved, as would the question whether league seas formed part of the territory of the Crown or were merely subject to special powers necessary for protective and police purposes.

However, only a year later their Lordships did in fact advert to the question. In Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd [1915] AC 599 ; [1914-15] All ER Rep 444, the Crown sought declarations as to its entitlement to certain accretions to the foreshore and when the matter came before the Judicial Committee the doctrine of accretion at common law was much debated. In the course of their Lordships' judgment, delivered by Lord Shaw, the conequence of erosion of the foreshore was referred to and it was said that "if erosion had continued, their Lordships do not doubt that it would have been no defence against the claim of the Crown that the foreshore upon the line of inroad had de facto been transferred to the Crown as owners of the sea and its bed within territorial limits, and of foreshore, even although the line of the eroded foreshore had made considerable invasion into the measured plots of lands, as these were described in the titles" (AC at 611; All ER Rep at 450). Although but a passing reference, it is clear that their Lordships regarded the sea and its bed within territorial limits as owned by the Crown.

Then, in the following year, the third appeal, Secretary of State for India v Chelikani Rama Rao (1916) 85 LJPC 222, came before their Lordships. It concerned the title to islands which rose from the sea at the estuary of a river in India and again Lord Shaw delivered their Lordships' judgment. He stated that the matter was not complicated by doubts as to the furthest possible extent of territorial waters since the islands were clearly "within three miles of British territory". The question, he said, was whether they were no man's land and "The answer is, they are not; they belong in property to the British Crown" (at 224).

His Lordship then proceeded to explain the basis for this conclusion. He referred to "certain dicta" pronounced in Keyn's Case which might be thought to raise doubts as to the Crown's ownership, dicta as to the Crown's dominion in the bed of the sea being bounded by low water mark and extending no further seaward. Keyn's Case was disposed of quite shortly, his Lordship saying: "It should not be forgotten that that case has reference on its merits solely to the point as to the limits of Admiralty jurisdiction; nothing else fell to be decided there. It was marked by an extreme conflict of judicial opinion, and the judgment of the majority of the Court was rested on the ground of there having been no jurisdiction in former times in the Admiral to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore.

"When, however, the actual question as to the dominion of the bed of the sea within a limited distance from our shores has been actually in issue, the doubt just mentioned has not been supported, nor has the suggestion appeared to be helpful or sound" (at 224).

In preference to the dicta in Keyn's Case , their Lordships turned to three decisions which they regarded as being directly in point. The first was that of Parker J in Lord Fitzhardinge v Purcell [1908] 2 Ch 139, from which a lengthy passage was cited, which, after referring to the public rights of fishing secured by Magna Charta, concluded that, subject to those rights "there seems no good reason to suppose that the Crown's ownership of the bed of the sea and the beds of tidal navigable rivers is not a beneficial ownership capable of being granted to a subject in the same way that the Crown's ownership of the foreshore is a beneficial ownership capable of being so granted" (at 166).

Lord Shaw then turned to two Scottish cases, saying that "in Scotland the law is firmly settled, and in a similar sense". In Lord Advocate v Clyde Navigation Trustees (1891) 29 Sc LR 153 the Crown had sought a declaration that the trustees were not entitled to deposit "in any part of the narrow seas of Scotland material dredged from the river Clyde and Lord Kyllachy had said, in a passage cited by Lord Shaw (at 225) that the Crown's right in leaguss seas, "now acknowledged to be part of the territory of the kingdom" was not merely a protectorate for certain purposes, such as navigation and fishing but was proprietary, there being "no distinction in legal character between the Crown's right in the foreshore, in tidal and navigable rivers, and in the bed of the sea within three miles of the shore. In each case it is of course a right largely qualified by public uses. In each case it is therefore, to a large extent, extra commercium; but none the less is it, in my opinion, a proprietary right -- a right which may be the subject of trespass, and which may be vindicated like other rights of property."

The second Scottish case was that of Lord Advocate v Wemyss [1900] AC 48, which concerned the ownership of minerals under the bed of the sea below low-water mark. Their Lordships' judgment cited (again at 225-6) what had there been said by Lord Watson; he had said: "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."

Lord Shaw continued, in his own words (at 226): "In the opinion of the Board this is also the law of India. The Crown is the owner and the owner in property, of islands arising in the sea within the territorial limits of the Indian Empire.

It should be added, with reference to the suggestion that the territory of the Crown ceases at low-water mark, and that the right over what extends seawards beyond that is merely of the nature of jurisdiction, or the like, that there are manifest difficulties in seeing what are the grounds for this in principle. There is nothing to recommend a local jurisdiction over a space of water lying above a res nullius.

Their Lordships had, of course, had cited to them -- see report in [1916] LR Indian Appeals at p 196 -- the then recent decision in Attorney-General for British Columbia v Attorney-General for Canada , in which a differently composed Judicial Committee had found it unnecessary to pass upon the question of ownership of the solum in league waters; indeed Sir Robert Finlay appeared as counsel in both cases.

What their Lordships determined in Chelikani's Case to be the law of India and what they regarded as well settled in Scottish law and as long established in English law, unaffected by dicta in Keyn's Case , is, then, that the British Crown is the owner of the solum underlying the league seas. This proposition is thus established on the highest of authority. That in Chelikani's Case it was the British Crown that was referred to reflects the fact that neither the Province of Madras, with which the case was concerned, nor India as a whole, had attained self-government at the time of that decision.

From this flows consequences of immediate relevance to the present dispute; were it not for the lengthy debate which we have heard concerning the dicta in Keyn's Case and affecting many other decisions of the court and the writings of many learned authors I would pass immediately to a consideration of those consequences. However, in deference to the arguments of counsel, I propose, as shortly as may be, to express my views concerning the gradual development of law and constitutional theory which led to the situation described in Chelikani's Case . The course of this development reflects the interaction of a variety of influences; England's early predominance in naval affairs and her consequent assertion of sovereignty over ill-defined areas of water, sometimes described as the sea, or the four seas, of England and, more conservatively but no less ambiguously, as the narrow seas, and later, after the Act of Union, as the British seas; the need which was felt to reconcile these heady claims to sovereignty over entire seas with the legitimate commercial interests of other nations and with the like interests of British merchant shipping in the coastal waters of other countries; an appreciation that the common interest might be best served by some mutual moderation of claims; the growth of an international law doctrine combining the concept of the freedom of the seas with that of the special rights of littoral states within their territorial seas, although subject always to a general right of innocent passage; the development of prize law and of rules as to neutral ships and neutral waters. There were also influences of a purely domestic kind; the feudal concept that all title to land stems ultimately from a grant by the Crown; that the Crown's ownership of the foreshore, while proprietary, is nevertheless subject to public right of navigation and of fishing. Yet others, of a constitutional nature, played their part; the want of extra-territorial legislative competence on the part of colonial legislatures; the extent of Crown prerogative and the effect upon it of the grant of responsible colonial government.

It is not surprising that the interaction of these various influences should have produced a result which, satisfactory enough from a pragmatic point of view, may not consistently reflect clear-cut principles. This is most apparent in the transition from England's wide claims of sovereignty over the English seas to the modern, and much diminished, assertion of sovereignty over and property in British league seas.

The early history of England's claims to sovereignty of the seas in Plantagenet times and before, extensively drawn upon by Selden in his Mare Clausum (1635), need not be examined; it is also enough to do no more than note in passing the transition from that climate of opinion in Tudor, and particularly Elizabethan, times, which favoured freedom of navigation and of fisheries, to the quite different Stuart period, characterized by protracted disputation with the Dutch over British sovereignty of the seas, beginning as early as 1609 with King James' exclusion from British seas of unlicensed foreign fishermen. The seventeenth century saw the publication of Wellwood's Abridgment of All Sea-laws (1613); Callis' work on Sewers (1622); Selden's Mare Clausum ; Hale's first Treatise (written about 1636) and his later De Jure Maris . All of these works and several more espoused far reaching concepts of British sovereignty over the seas and advocates of this view were not confined to those adhering to the doctrine of the divine rights of Kings; Cromwell was no less insistent upon Dutch submission to the authority of the "Common-Wealth of England, to whom the Dominion and Sovereignty of the British Sea belong", cited in Oudenijk's Status and Extent of Adjacent Waters (1970), p 104. Like concepts were long reflected in works of the next century -- Bacon's and Viner's Abridgements ; Blackstone's Commentaries -- and persisted into the early years of the nineteenth century -- Chitty's Prerogatives of the Crown (1820) -- although by then the ownership that is spoken of is specifically confined to "the narrow seas adjoining the English coasts" (p 206) and as there used "narrow seas" may mean no more than league seas.

In the realm of case law the high claims of Stuart days, almost metaphysical in character and epitomized in the Ship Money Case ; R v Hampden 3 State Trials 826 (especially at 1226 and 1246), are in marked contrast to the more prosaic judgments of nineteenth century judges. Yet throughout all is to be found a consistent view that waters within league seas are British territory that the fundum of those waters is the property of the Crown and that the league seas themselves are a part of the royal waste.

It is in the first half of the nineteenth century that for the first time a substantial body of case law on the topic developed. It is enough to refer to some only of these cases. First Blundell v Catterall (1821) 5 B & Ald 268 ; 106 ER 1190 (the Sea Bathing Case , in which appears that "most remarkable" judgment of Sir George Holroyd, described by the Court of Appeal in Brinckman v Matley [1904] 2 Ch 313 ; [1904-7] All ER Rep 941, as "one of the first examples we have of the way in which the judgment of an English judge ought to be expressed" (5 B & Ald) at p 323 and see pp 326 and 327). Holroyd J, at 293, described the King as alone having the propriety "in the main sea itself adjacent to his dominions", his subjects not having "that property in the sea through the whole tract of it that the king hath ...". His Lordship relied extensively upon Hale's De Jure Maris and not at all upon doctrines of international law; he expressed what he regarded to be the common law. He said, at 298, that by the common law both the shore between the flux and reflux of the tide and the sea itself belonged to the King, although subject always to the public rights of fishing and of navigation for the purposes of commerce, trade and intercourse. It was upon this judgment of Holroyd J that Lord Parker founded himself in Lord Fitzhardinge v Purcell in that passage which the Judicial Committee later were to adopt in Chelikani's Case .

Seven years later, in 1828, came Gifford v Lord Yarborough (1828) 5 Bing 163 ; 130 ER 1023, a case of the land formed by alluvion of the sea, and in which Best CJ, answering on behalf of the judges (at 165), the questions of the House of Lords, spoke of the fundum maris as the property of the King; again reliance was placed squarely upon the common law. Lord Lyndhurst and Lord Eldon affirmed the views of Best CJ.

In the following year, in Benest v Pipon (1829) 1 Knapp 60 ; 12 ER 243, a Jersey appeal, Best CJ, then Lord Wynford, speaking on behalf of the Privy Council, said of the sea that "it is the property of the King and so is the land beneath it"; he relied upon Blundell v Catterall and Lord Yarborough's Case and described this to be both the law of England and that of Jersey. It was, he said, the introduction, at the time of the Conquest, of the laws of Normandy into England which resulted in "the laws of England and Jersey being precisely the same with regard to land that is below the ordinary tides, dealing with such land as a part of the bottom of the sea, and vesting the original right to it in the King" (at 69).

In the 1850's there occur two cases of note; the first is Attorney-General v Chambers (1854) 4 De G M & G 206 ; 43 ER 486, in which the Lord Chancellor was, by special arrangement, assisted by Baron Alderson and Maule J; it concerned the precise landward extent of the sea-shore. After argument by a distinguished bar, which included Bethell, James, Palmer and Mellish, the two common law judges, in a joint judgment, stated the question to be decided as follows: "The Crown is clearly in such a case, according to all the authorities, entitled to the 'littus maris' as well as to the soil of the sea itself adjoining the coasts of England. What then, ... is the extent o this littus maris?" (at 215). This case came on again before the Lord Chancellor for further consideration in 1859, reported in 4 De G & J 55; 45 ER 22. On this occasion Lord Chelmsford (at 68) cited with approval a passage from Blackstone which concluded with the words: "If the alluvion or dereliction be sudden and considerable, in this case it belongs to the King, for as the King is lord of the sea, and as owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry." Neither in these judgments nor in the argument which preceded them was it suggested that this doctrine as to the ownership of the soil of the sea-bed was other than a doctrine of the common law.

The much cited Scottish case of Gammell v Commissioners of Woods and Forests (1859) 3 Macq 419, involved the question of the Crown's rights to salmon fishings in the open sea. In the joint opinion of the nine judges whose opinions were sought on appeal from first instance these salmon fishings were beneficial rights and fit subject of proprietorship; with this opinion a majority of the Second Division of the Court of Sessions concurred. An appeal was then taken to the House of Lords, on which sat Lord Chelmsford LC, Lord Cranworth, Lord Wensleydale and Lord Kingsdown. The Lord Chancellor held salmon fishings in the open sea to be the property of the Crown. Lord Cranworth agreed and added (at 465) that any doubts he might have entertained, due to the great difficulty of defining to what extent the claim might go with respect to sea fishings, had been overcome because "if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the Crown, in England at least, to the bed of the sea, because that is undefined; yet nobody doubts that such a right exists". Lord Wensleydale also agreed but he introduced a concept of international law. He said, again (at 465) and speaking of the Lord Chancellor's opinion: "I think it unnecessary to add anything to it, except that, perhaps, besides the limits he has stated of the fishing being connected with the coast, it may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country, that which is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession." Lord Kingsdown likewise agreed.

The 1860's produced a number of cases of which only two call for mention. In Gann v Free Fishers of Whitstable (1865) 11 HL Cas 192 ; 11 ER 1305, the House of Lords had to determine whether the grant by the Crown of a several fishery must necessarily be subject to public rights of navigation and anchorage. In the course of his judgment Lord Wensleydale, while emphasizing that these public rights must prevail, spoke of that which the Crown might grant, and which in that case it was necessarily taken to have granted before Magna Charta (any grant since that date being unlawful), as "the right to the soil of the fundus maris within three miles below low-water mark and to the fishery in it" (at 213). Lord Chelmsford (at 218) while doubting the Crown's right to impose upon subjects a toll for the use of the soil of the sea as an anchorage "to this large extent", that is, as far off-shore as the three mile limit, because of his recognition of the existence of public rights of navigation, nevertheless acknowledged that that soil was the property of the Crown. His Lordship in this context, and referring to the three mile limit, said: "Whatever power this may impart with respect to foreigners, it may well be questioned whether the Crown's ownership in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation."

In Ipswich Dock Commissioners v Overseers of St Peter, Ipswich (1866) 7 B & S 310, Blackburn J, with whom Mellor and Lush JJ concurred, examined in some detail the law relating to parish boundaries at the shores of the sea and concluded that the appellant's dock was extra-parochial and was therefore not subject to parish rates. In doing so he explained why the "main sea" is extra-parochial; he said (at 344): "In R v Musson it was rightly decided that what Lord Hale calls the main sea is prima facie extra-parochial, and in the absence of evidence that it forms part of a parish it must be taken that it does not; and the same reason, that it is part of the waste and demesnes and dominions of the Crown, would apply to an estuary or arm of the sea; it is a part of the great waste, both land and water, of which the King is Lord." In so saying he paraphrased the words of Lord Hale which had been cited by Baron Watson in Attorney-General v Hanmer (1858) 27 LJ Eq 837.

In all these references to league seas the doctrine as to those seas which is enunciated is clearly not founded upon any concept of international law; however, one such concept is introduced in two of the last three cases which I have examined, both Lord Wensleydale and Lord Chelmsford introduced the concept of the three mile limit and this for the purpose of providing some outer boundary for the relevant seas.

With the 1870's Keyn's Case is reached. Keyn, the German captain of a German vessel which, within three miles of the English coast, had collided with a British vessel causing loss of life, was charged with manslaughter and convicted. He sought to challenge the jurisdiction of the Central Criminal Court to hear the charge against him. It was decided in 1876 and, as I have endeavoured to show, at a time when it had been long established that the Crown had property in the seas and sea-bed, at least within league seas. Of the two leading judgments delivered by members of the majority that of Sir Robert Phillimore is much concerned with matters of international law, as was, of course, not inappropriate to what was in issue in the case; his Lordship made no close examination of the cases on English or Scottish municipal law to which I have referred. The same may be said of that portion of the judgment of Cockburn CJ particularly devoted to an examination of the authorities (2 Ex D at 221-9); his Lordship, to the extent to which he touched upon such cases, was primarily concerned with matters of jurisdiction and the emergence of the doctrine of the three-mile limit of territorial waters, as is shown by his reference (at 228) to the Whitstable Fishers Case , his reference to it being restricted to the case when before Erle CJ and to the Chief Justice's reference to the three-mile limit. The judgment of Brett JA, one of the minority, did advert to a number of these precedent cases, although again the emphasis was rather different from that which I have adopted. The reason for this different emphasis throughout the judgments in Keyn's Case is that given in Chelikani's Case in the passage already cited, namely that what was in issue in Keyn's Case was not the question that has so long detained me in this judgment, but rather the extent of the former criminal jurisdiction of the Admiral.

The subsequent history of Keyn's Case has been curious. Despite the clear pronouncement of the Judicial Committee of the Privy Council already referred to, R v Keyn has nevertheless been much cited, both in judgments and by writers of texts, for the proposition that the territory of England ends at the low-water mark; yet it appears to me to be clear that Keyn's Case decided only the extent of jurisdiction of the Central Criminal Court, which had inherited the Lord High Admiral's jurisdiction. That jurisdiction had been restricted by 13 Ric 2, c 5, the words of which, translated from their original medieval French, having long been understood to read: "The admirals and their deputies shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea."

Now it was common ground in Keyn's Case that the criminal jurisdiction of the common law courts did not extend to the open sea. Brett JA, in delivering the leading judgment for the minority, said as much (at 145): "It is admitted that the Common Law Courts never were appointed according to the common law, and therefore never had jurisdiction by virtue of the common law to try crimes committed on the high or open seas, even though the crimes were committed by the Queen's subjects, because the commissions of the judges applied in terms only to counties, and the juries were summoned only to try cases within counties, and the high or open sea is within no county." The jurisdiction of the common law courts was limited by the territorial limits of counties, to the limits of which the judges' commissions were restricted -- Holdsworth, History vol I, pp 264-85; and it was for this reason that "between high and low-water mark the Courts of Oyer and Terminer had jurisdiction when the tide was out, the Court of the Admiral when the tide was in "(per Sir Robert Phillimore in Keyn's Case at 67). In The Admiralty (1611) 12 Co Rep 79 at 80 ; 77 ER 1357, Lord Coke had described the sea as that "from whence no pais may come", that is to say no panel from which a jury might be selected. Hence it was exclusively to the Admiral's jurisdiction, as transferred to the Central Criminal Court, that the court in Keyn's Case looked, with varying results, for the answer to the question before it, whether the Central Criminal Court had jurisdiction to try Keyn for manslaughter. However, it is important to note that the fact that countries are bounded in extent by, and do not extend beyond, the shore bears not at all upon the question of ownership of the sea-bed.

The majority in Keyn's Case held that the Admiral's criminal jurisdiction had never extended to foreign vessels on the open sea; accordingly there existed no jurisdiction to try Keyn. In so deciding, the majority rejected the contention of the Crown that, as a result of the development of international law, the league seas in modern times were to be regarded as British territory for the purpose of exercising jurisdiction over aliens. The fact that, by international law, Parliament might properly so legislate as to extend the jurisdiction of the Admiral was, they held, no justification for the court to usurp legislative power and itself make that extension in the absence of such legislation. All this appears clearly from what was said by Cockburn CJ (2 Ex D) at 207-8: "It is obviously one thing to say that the legislature of a nation may, from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea, and as such common to all the world; another and a very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to foreigners within such part, or that, independently of legislation, the courts of the local state can proprio vigore so apply it. The one position does not follow from the other; and it is essential to keep the two things, the power of Parliament to legislate and the authority of our courts without such legislation to apply the criminal law where it could not have been applied before, altogether distinct, which, it is evident, is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specifically liable to our law by statutory enactment that that law can be applied to them" and again (at 231): "If by the assent of other nations the three-mile belt of sea has been brought under the dominion of this country, so that consistently with the right of other nations it may be treated as a portion of British territory, which, of course, is assumed as the foundation of the jurisdiction which the courts of law are here called upon to exercise, it follows that Parliament can legislate in respect of it. Parliament has only to do so, and the judges of the land will, of course, as in duty bound, give full effect to the law which Parliament shall so create. The question is, whether legislative action shall be applied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the difficulty." The reason Lush J gave for writing his separate judgment does but stress that the basis of the majority decision was that given by Cockburn CJ in the above passages.

It is because of this that I have described the subsequent history of Keyn's Case as curious. Its explanation may lie in the various shades of meaning which can be attributed to the word "territory". To regard R v Keyn as deciding that the territory of England ends at low-water mark is to understand the word "territory" as used in the judgment of Cockburn CJ in the widest sense, as that area over which Britain exercised dominium and imperium. Cockburn CJ did not, I believe, use the word "territory" in this sense but rather as interchangeable with "realm", both describing merely all that which is within the body of any county. This the following passage from his Lordship's judgment (at 197-8) demonstrates:--

To come to the subject of the realm, I cannot help thinking that some confusion arises from the term 'realm' being used in more than one sense. Sometimes it is used, as in the statute of Richard II, to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England extended, or was supposed to extend, over.

When it is used as synonymous with territory, I take the true meaning of the term 'realm of England' to be the territory to and over which the common law of England extends -- in other words, all that is within the body of any county -- to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of Richard II between the realm and the sea. For centuries our judicial system in the administration of the criminal law has been divided into two distinct and independent branches, the one having jurisdiction over the land and any sea considered to be within the land; the other over the sea external to the land. No concurrent assent of nations, that a portion of what before was treated as the high sea, and as such common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of Parliament, convert that which before was in the eye of the law high seas into British territory, and so change the law, or give to the courts of this country, independently of legislation, a jurisdiction over the foreigner where they had it not before. The argument in support of the contrary appears to me, I must say singularly inconsistent with itself. According to it the littoral sea is made to assume what I cannot help calling an amphibious character. At one time it is land, at another it is water. Is it desired to apply the law of the shore to it, so as to make the foreigner subject to that law? -- it becomes so much territory. Do you wish to keep it within the jurisdiction of the admiral -- as you must do to uphold this indictment? -- it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of Great Britain is fatal to the argument which it is intended to support. For, if the sea thus becomes part of the territory, as though it were actually inter fauces terrae , it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the Admiralty jurisdiction. The littoral sea cannot be land for one purpose and high sea for another. Nor is anything gained by substituting the term 'territory' for land. The law of England knows but of one territory -- that which is within the body of the county. All beyond it is the high sea, which is out of the province of English law as applicable to the shore, and to which that law cannot be extended except by legislation.

With respect to those who may think otherwise, it appears to me to be clear from this passage that the Chief Justice "uses territory" exclusively in the sense which I have suggested and that his Lordship is at all times concerned solely with the question of jurisdiction.

With reference to the concept of "realm" it should be mentioned that the Solicitor-General of South Australia, in an argument which he supported by contemporary references and by expert evidence, contended that the words "but only" in the statute of Richard II either constituted an erroneous translation into English of the medieval French of the statute or, alternatively, bore, at the time of their original translation into English in the mid-16th century the meaning, in the English of that day, of "with the exception of" or "save only" rather than carrying the exclusory meaning which "but only" commonly signifies in modern usage. Whether or not this submission be accepted it bears, I think, not at all upon the fact of Crown ownership of the sea-bed as established by the authorities which I have cited although it does, of course, go to the correctness of the conclusions of Cockburn CJ as to the Admiral's jurisdiction, since his Lordship relied for those conclusions in no small measure upon this phrase "but only" which he found in the English translation of the statute of Richard II.

With the case of Harris v Owners of Franconia (1877) 2 CPD 173 ; 46 LJCL 363, as subsequently understood, began what I regard as the later misinterpretation of Keyn's Case . This case has been relied upon as one in which the three judges who constituted the court, and who happened also to have been members of the minority in Keyn's Case were all of the opinion that Keyn's Case did decide that the territory of England and the sovereignty of the Queen stopped at low-water mark. But that does not accurately represent what was said in Harris' Case . What Lord Coleridge is reported, in the CPD report but not in the fuller report of argument in the Law Journal report, to have said in the course of argument may have contributed to the misunderstanding; however when his Lordship came to give judgment he left no room for misunderstanding. He said, at p 177 of the CPD report, speaking of Keyn's Case : "The ratio decidendi of that judgment is, that, for the purpose of jurisdiction (except where under special circumstances and in special Acts parliament has thought fit to extend it), the territory of England and the sovereignty of the queen stops at low-water mark. The matter in respect of which this action is brought, therefore, happened beyond the jurisdiction of the Queen's Courts;" (emphasis added). Denman J made it still clearer that R v Keyn only decided a point of jurisdiction when he said (at 178): "The case of R v Keyn clearly goes the length of holding that, for all purposes, apart from any express statutory provision, the moment you get beyond low-water mark you get beyond the jurisdiction within which the Queen's writs run."

Each member of the court in Harris' Case speaks of territory in a jurisdictional sense, thereby equating "territory" with "realm" and the body of any county, these being the geographical limits of jurisdiction of the common law courts. The judgments do not at all deal with territory in the sense of Crown ownership or of dominion. Likewise in Blackpool Pier Co v Fylde Union (1877) 46 LJ (Mag) 189, heard by Lord Coleridge and Grove J a few days after Harris' Case and involving a point of statutory construction, it was as to the extent of the "realm" in a parish rate appeal that Keyn's Case was cited.

One further point should be made in relation to Keyn's Case itself Cockburn CJ (at 175) warned of the need to distinguish between the "long since abandoned" claim to sovereignty of the British seas and the more recently developed and quite different concept of a band of territorial waters of three marine miles in width, a concept derived from international law. The propriety of such a warning, in the context of the issue which was before the court in Keyn's Case , is of course undoubted. Moreover it was, with respect, entirely accurate for his lordship to speak of the "vain and extravagant pretensions" of Stuart sovereignty over the seas as long since having been abandoned; however, their abandonment left the question of Crown ownership of the sea-bed off British coasts quite unaffected; that ownership was not dependent upon those pretensions, which were concerned rather with the intrusion of foreign war ships, with international fishing rights and with the striking of the flag within the so-called British seas. As to the more recently developed doctrine of the three-mile limit, it has no doubt, over the years, played a part in the more precise definition of that which is owned by the Crown off-shore; the gradual acceptance by most maritime powers during the eighteenth and nineteenth centuries of the concept of a territorial sea, limited to three miles, and of freedom of the high seas beyond those limits had a particular effect upon Crown ownership of the sea-bed; it provided a conventional outer limit for that ownership. Because the whereabouts of that outer limit had been little canvassed in the courts, only ownership much closer to the shore than three miles ever arising as a practical concern, it was the easier to adopt that limit, by then well established in international law, as the furthest extent seawards of Crown ownership of the sea-bed.

I would regard it as mistaken to conclude, from the abandonment long ago of Stuart pretensions to sovereignty of the seas at large and from the adoption of the three-mile limit as the seaward bounds of Crown ownership, that such a wealth of judicial support for the existence of that ownership as is manifest in the case law of the nineteenth centuary is, as has sometimes been suggested, but the product of a confusion of concepts.

There is one further authority, later in date than Keyn's Case , which forms a part of the general body of case law already examined. In Attorney-General v Reeve (1885) 1 TLR 675 the Crown sought to establish title to land recently added, by accretion, to the shore. The court consisted once again of Lord Coleridge, sitting with Baron Pollock, and judgment was given for the Crown, the court applying what was described as the "long established" rule of law as to accretion and drawing for authority upon Bracton and Hale and upon the latter's references to the sea off the shore as a "parcel of waste or demesne, so of necessity the land that lies under it, and therefore it belongs to the King when left by the sea". Lord Coleridge cited and applied Lord Yarborough's Case and Attorney-General v Chambers .

I have omitted reference to cases much discussed before us but which were concerned primarily with concepts of international law and, in particular, with the rights of neutrality and the rights of foreign sovereigns; I instance The Twee Gebroeders (1803) 3 Ch Rob 162 ; 165 ER 422The Anna (1805) 5 Ch Rob 373 ; 165 ER 809, and Carr v Fracis Times & Co [1902] AC 176. I have also omitted to refer to those cases concerned essentially with statutory interpretation, as were The Brig Ann (1812) 1 Gall 61General Iron Screw Collier Co v Schurmanns (1860) 1 J & H 180 ; 70 ER 712; Dr Lushington's decisions in The Leda (1856) Swab 40 ; 166 ER 1007, and the The Johannes (1860) Lush 182 ; 167 ER 87, and the case of Rolet v R (1866) LR 1 PC 198. All these cases relied upon by the States in support of the view that league seas lie within the territory of the littoral state. The view which I have formed concerning Crown title to league seas makes it unnecessary for me further to extend my examination of precedent cases.

I should mention here two statutes. First the Territorial Waters Jurisdiction Act 1878, enacted following the decision in Keyn's Case and which the Earl of Halsbury LC, in Carr v Fracis Times & Co described as "reversing" the majority in Keyn's Case by "affirming in the strongest terms that the decision which had been arrived at by the majority ... was one that was not the law of England", and see the similar views of Lord Coleridge in R v Dudley and Stephens (1884) 14 QBD 273 at 281; ; [1881-5] All ER Rep 61. The Act is, like Keyn's Case concerned only with matters of curial jurisdiction and is to that extent not directly relevant to the present point. To the extent that modern cases have specifically relied upon it for a conclusion contrary to my own I shall have occasion to refer to it again.

The Cornwall Submarine Mines Act was enacted in 1858, before Keyn's Case , to give effect to arbitration proceedings between the Crown and the Duchy of Cornwall concerning the title to mines beneath the sea off the Cornish coast. It enacted that mines and minerals both within the county of Cornwall and under "the open sea adjacent to but not being Part of the County of Cornwall" were vested in the Queen "in right of Her Crown as Part of the Soil and territorial Possessions of the Crown" (see ss 1 and 2). In Keyn's Case differing views were taken of this legislation -- per Lord Coleridge at 156-8 and per Cockburn CJ at 199-202. In my view this legislation is significant not only because of the terms in which ss 1 and 2 are cast but also because the contentions advanced on behalf of the Duchy did not, it seems, seek to deny the original ownership by the Crown of the off-shore sites of these mines; instead what was asserted was title derived by ancient grant from the Crown. There was thus common acceptance of Crown to the sea-bed in league seas.

It seems appropriate at this stage to refer to two instances in which the English law officers, asked to advise the Colonial Office, some years after Keyn's Case , concerning questions which involved ownership of league seas in the colonies, took a view consistent with those authorities which I have earlier discussed. In 1895 Sir Richard Webster A-G and Sir Robert Finlay S-G advising upon the rights of the Crown by its prerogative to make grants, in Bermuda, of the sea-bed for the purpose of the erection of wharves below high-water mark and within three miles seaward of that mark, stated that "the rights of the Crown in the foreshores and lands below high water mark in the Bermudas are the same as under the common law in England". The Crown could, they said, accordingly, by its prerogative, make grants of the soil below high water mark and within three miles of that mark under the sea adjoining Bermuda, the only qualification being that no works could be authorized which might prejudice the public right of navigation.

Later, in 1899, the same two law officers advised, in relation to the Straits Settlements, that "the Common Law of England as to foreshore and open seas within the territorial limits applies". Accordingly alienations which had been made of the sub-soil of territorial waters might only be impeached if there were any substantial interference with the rights of the public in those waters.

In conclusion on this particular subject matter it remains only to refer to the views of the Supreme Courts of Canada and of the United States concerning ownership of league seas. In Reference re Ownership of Off-Shore Mineral Rights (1967) 65 DLR 353, the Supreme Court of Canada considered the ownership of and jurisdiction over submerged lands containing mineral rights and situated off the coast of British Columbia and within three miles of that coast. It concluded that those lands were the property of Canada, which alone had legislative jurisdiction over them. Questions of the Continental shelf were also dealt with, which I leave to one side.

The court was much influenced by its view of Keyn's Case but did, in my respectful opinion, misconceive the issues in that case. At p 363 it is said of Keyn's Case : "The English Criminal Courts would have had jurisdiction if the act had occurred within the body of a county of England. The question whether the territorial sea was within the body of a county was, therefore, directly in issue. If it had been within the body of the county, the Court of Oyer and Terminer would have had jurisdiction. The majority decision of the Court was that the territory of England ends at low-water mark. There was, therefore, no jurisdiction in the Court of Oyer and Terminer." In fact, as I have already sought to establish by my earlier quotation of the passage in the judgment of Brett JA, there was no issue in Keyn's Case as to whether "the body of the county" might extend beyond low-water mark. Again, for the reasons which I have already given, I would not regard "the majority decision of the court" in Keyn's Case as being, as the passage from the judgment of the Supreme Court which I have quoted suggests, that the "territory" of England, employing that term in its ordinary meaning, ended at low-water mark. The majority in Keyn's Case were, of course, much concerned with the concept of the "realm" because of their understanding of the statute of Richard II and its bearing upon the Admiral's jurisdiction; it was in that special sense, equivalent to the realm, bounded by the counties, that the majority spoke of "territory". I do not understand it to have been any part of the ratio of their decision that the "territory" of England, in the very different sense in which the Supreme Court uses that term, ended at low-water mark.

The Supreme Court appears to have placed considerable reliance upon Harris v Owners of Franconia , supra, and upon Blackpool Pier Co v Fylde Union , supra, for the light they cast upon the ratio of Keyn's Case . I have already expressed my views concerning these two cases. The Supreme Court also took the view that the Territorial Waters Jurisdiction Act 1878, because it applied the criminal law of England to the open seas within the territorial waters of Her Majesty's dominions, necessarily proceeded upon a footing inconsistent with any concept that British Columbia possessed the solum within territorial waters. This inconsistency is not, with respect, apparent to me; the terms of the Act appear to me to cast no light upon the question of the ownership of league seas; it is but an instance of the effective exercise of Imperial legislative power.

The Supreme Court, in arriving at the conclusion it did, dealt with the decision of the Privy Council in Chelikani's Case , supra; and of those precedent cases upon which Lord Shaw's reasoning in Chelikani in turn relied. As I would understand the judgment (65 DLR at 373), it did so not by distinguishing them but rather, as the headnote (at 355) states, by disapproving of them while at the same time referring to what is said concerning title to emergent islands in Oppenheim's International Law , 8th ed, par 234. That passage, however, is expressed in terms of an exposition of the doctrines of the Law of Nations rather than the municipal law of England. Lord Shaw's authoritative exposition in Chelikani of that for which Keyn's Case is authority is not referred to by the Supreme Court and no reference occurs to the decision of the Privy Council in the Southern Nigeria Case although it had been referred to in certain of the judgments in Attorney-General of Canada v Western Higbie [1945] 3 DLR 1, an earlier decision of the Supreme Court concerned with Crown title to foreshore lands.

Decisions of the Supreme Court of Canada are, of course, of high persuasive authority. However, the existence of decisions of the Judicial Committee, binding upon this court, which are opposed to that of the Supreme Court would, in any event, preclude me, in this instance, from adopting the views of that court as expressed in its Reference of 1967 .

In the United States litigation between federal and state governments concerning league seas has proliferated of recent years. The outcome of those cases has been to deny to the States control over the resources of off-shore submerged lands and the decisions do in that sense afford support for the contentions urged by the Commonwealth in the present case. There are, however, so many considerations, historical, constitutional and, perhaps, of a policy nature, which distinguish those United States decisions from what is to be decided in the present case, that I think it profitless to undertake in these reasons an examination of the judgments. I do, however draw attention to the full review, both historical and constitutional, of the British and early colonial position as to off-shore waters contained in earlier decisions of the Supreme Court, notably in Shively v Bowlby (1893) 152 US 1, especially at 11-20, 31, 35-6, 43 and 48. These decisions, which are, of course, referred to in judgments in the recent series of cases, did not involve any contest between the rival claims of state and federal authorities and accordingly did not attract those special considerations to which the court has given effect in its recent decisions. With the exception of these Canadian and United States cases the body of law as to the status of British league seas remained, in my view, unaltered until Bonser v La Macchia (1969) 122 CLR 177 ; [1969] ALR 741. Certain of the judgments in that case took a view of Keyn's Case at variance with that which I have expressed and to these I must, perforce, later return.

Having stated my reasons for concluding that the British Crown owned, as royal waste, the waters and bed of league seas surrounding the Australian continent when the Australian colonies came to be given responsible government I pass now to the effect upon this position of the grant to these colonies of responsible government. In my view it resulted in league seas thenceforth being owned by the Crown in right of the respective littoral colonies, so that at federation there existed six Australian colonies in respect of each of which the Crown in right of that colony owned its league seas.

In considering the effect of the grant of responsible government upon the ownership by the Crown of the league seas and their sub-soil much guidance is to be had from the judgments of Isaacs J in Williams v Attorney-General for New South Wales (1913) 16 CLR 404 ; 19 ALR 378, and of Long Innes CJ in Eq in Attorney-General for New South Wales v Butterworth & Co (Aust) Ltd (1938) 38 SR (NSW) 195.

That originally the waste lands in the colonies were owned by the British Crown is not in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature, such as is described by Evatt J in his unpublished work on the subject (the relevant passages from which are set out in the Butterworth Case at 246-7); the prerogatives of the Crown were a part of the common law which the settlers brought with them on settlement; R v Kidman (1915) 20 CLR 425 per Griffith CJ at 435-6; "the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's colonial possessions as in Great Britain" -- per Lord Watson, speaking for their Lordships in Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] AC 437 at 441, cited by Isaacs J in Commonwealth v New South Wales (1923) 33 CLR 1 at 37 ; 29 ALR 401 at 412. On the other hand that ownership may be described as a consequence of the feudal principle which, on first settlement in Australia, was "extended to the lands overseas", so that all colonial land belonged "to the Crown until the Crown chose to grant it" -- per Isaacs J in Williams' Case (16 CLR at 439). In either event the consequence is the same, the lands of Australia became the property of the King of England: Attorney-General (NSW) v Brown (1847) Legge 312 at 317-20.

So long as anything less than responsible government applied in the Australian colonies this position remained unaltered: Crown lands were vested in the Imperial Crown, they were the Sovereign's colonial lands. When responsible government was granted to the first four Australian colonies in 1855 this involved no change in the ownership of these Crown lands but rather a change in their control, the Sovereign thenceforth held them in right of the colony and control of them passed to the colonial government -- Isaacs J in Williams' Case , supra, at 455. The Sovereign, in matters internal to the colony, ceased to be advised by Ministers responsible to the British legislature; instead it was the colonial Ministers, responsible to the colonial legislature, which advised upon those matters. The control and disposition of Crown lands was for the first time placed in the hands of the responsible colonial legislatures; all this is dealt with, in its full historical detail in relation to New South Wales, by Isaacs J, in the Williams Case . The position was no different in other colonies. With the grant of legislative authority over Crown lands to the local legislatures went also executive control -- "as rights of self-government were conferred on each Colony exclusive rights of executive authority over matters within the ambit of the rights conferred became of necessity vested in the executive power of the Colony": O'Connor J in South Australia v Victoria (1911) 12 CLR 667 at 710 ; 17 ALR 207.

Those proprietary prerogatives of the Crown which related to matters other than the waste lands comprised in the land masses of Britain's colonial possessions also became exercisable, upon self-government, by the Crown in right of the self-governing colony. Long Innes CJ in Eq was concerned, in the Butterworth Case , with the proprietary prerogative right of the Crown in the printing of Statues and said (at 245), that proprietary prerogative rights had come to be "vested in the Crown in right of the Colony of New South Wales immediately prior to the confederation of the Commonwealth of Australia". These prerogatives are the very "substance of the common law" -- per Denning LJ in Nyali Ltd v Attorney-General [1956] 1 QB 1 at 16 ; [1955] 1 All ER 646, in which it was held that the Government of Kenya might grant the proprietary Crown prerogative of pontage to the plaintiff (and see per Morris LJ (QB) at 24-5 and per Parker LJ at 32). Isaacs J in Commonwealth v New South Wales (33 CLR) at 39, explained the significance of Woolley v Attorney-General of Victoria (1877) 2 App Cas 163; the inability of a colonial governor, before the establishment of self-government, to grant away the proprietary prerogative rights of the Crown to precious metals, regarded as distinct from the land in which they lay, has no application to that colony's government after self-government is attained.

The effect of self-government upon the prerogative in the case of the prerogative to legislate is instanced in the case of Malta. There the grant of responsible government, flowing from the grant to a local legislature of the power to legislate, with the Governor's assent, concerning most of the internal affairs of that island, had the effect of suspending, pro tanto , the exercise of the Imperial royal prerogative to legislate -- Sammut v Strickland [1938] AC 678 ; [1938] 3 All ER 693. So too in the case of the Australian colonies; to the extent of the powers conferred upon the new responsible governments, the corresponding royal prerogatives residing in the Imperial Crown were suspended, never in fact to be revived. They were replaced by corresponding royal prerogatives of the Crown in right of the colony in question, exercisable by the Governor upon the advice of his colonial Ministers. The creation of the several Australian colonies did not abrogate that which the settlers had brought with them, namely "all the common law relating to the rights and prerogatives of the Sovereign in his capacity as head of the Realm ...". Instead it "continued in force as law of the respective colonies applicable to the Sovereign as their head": Kidman's Case , supra, per Griffith CJ at 435 and 436. So it is that prerogatives in the nature of proprietary rights which arose "by virtue of the King being the supreme executive authority of a particular territorial unit possessed of self-government are also held by the Crown in right of that particular territorial unit or political entity": per Long Innes CJ in Eq in the Butterworth Case , supra, at 224.

It was of this situation that Evatt J spoke when he said, at pp 390-1 of his unpublished work to which I have already referred: "the Crown in right of the several States is entitled and alone entitled to exercise the prerogatives of the King in respect of his ownership of lands, his right to royal metals, to treasure trove, to escheats, to the ownership of the foreshore and the bed of the sea within territorial limits, and to royal fish -- that is, whale and sturgeon".

I have not been concerned to determine the geographic limits of the several Australian colonies as described in the various documents by which governmental authority was conferred, first by the Crown upon Governors and later by legislation upon colonial governments possessing a greater or lesser degree of self-government. Whether or not some of these documents may, upon their proper interpretation, include the league seas of the littoral colonies is immaterial to the view I have formed. Just as the Crown's ownership of and dominion over English league seas enured to it by virtue of sovereignty over the English land mass, so too in the colonies; sovereignty over the colonial land mass carried with it ownership of and dominion over its league seas regardless of the existence of any statute or proclamation describing the colony in terms wide enough to include those seas.

The contrary view, that self-governing colonies, possessing very extensive shore-lines and having absolute power of management and control over Crown lands within their land masses, were nevertheless deprived of ownership and control of league seas, those waters being outside their territory and remaining under the control of the Imperial Parliament and executive, is to my mind unacceptable. It is, moreover, a view which is shown, by the extensive evidence which is before the court in this case, to have been at no time within the contemplation either of the Imperial authorities or of the colonial legislatures or executives. The numerous opinions of the law officers of the Imperial Crown throughout the nineteenth century touching league seas are, in my view, inconsistent with the title and control of those waters being retained by the Imperial Crown and Executive, especially having regard to the then prevailing view that colonial legislatures had no extra-territorial competence.

In 1853 the Advocate-General, Sir Alexander Cockburn A-G (later Cockburn CJ) and Sir Richard Bethel S-G (later Lord Westbury) jointly advised that a colonial statute of Nova Scotia, a colony then possessing responsible government, which legislated for league seas, was valid, saying that: "The authority of the local legislature extends (like that of the Imperial Parliament) over the space of the three miles upon the high seas next the coast which is, by the comity of nations, part of the country to which it is adjacent." This, they said, was itself, without more sufficient to confer power on the colonial legislature to legislate for fisheries in those waters. Two years later these same law officers dealt with the converse position, holding that the colonial legislature of British Guiana, which then possessed a unique constitutional system with features of a representative character, could not legally exercise its jurisdiction "beyond its territorial limits (three miles from the shore)". In 1860, in advice to the Admiralty, five law officers, the Advocate-General, Sir Richard Bethel A-G, Sir William Atherton S-G, Sir Robert Phillimore (later Phillimore J) and Sir Robert Collier (later a member of the Judicial Committee) advised that a Victorian Act for the equipping of colonial warships would, if assented to, confer upon those vessels the legal character of British warships but only "within the limits of the territorial jurisdiction of the Colony ie, within three miles of the shores". Five years later, reverting to the same topic, Sir Henry James (later Lord James of Hereford), Sir Farrer Herschell S-G (later Lord Herschell) and Sir Alexander Hill, upon being asked whether colonies possessing responsible government might, without Imperial legislation, provide armed vessels for service "within colonial waters" replied that they might.

The colonial administrations in the Australian colonies, once they attained self-government, regarded themselves as fully competent not only to legislate for, but also to deal with, their league seas and they were so treated by the Colonial Office; there exists a very extensive body of colonial legislation concerned with those seas and frequent colonial grants of rights of various kinds in respect of the bed of those seas. Again the significance of these is heightened when viewed in the context of the then prevailing belief that colonial legislatures lacked extra-territorial capacity. It is unnecessary for me to refer to examples of such legislation or of these grants, to which the court was taken in considerable detail in the course of the hearing; some examples are referred to in a number of the articles which have, of recent years, appeared in Australian legal journals on this general topic.

Perhaps the most cogent evidence concerning the then prevailing understanding regarding the status of colonial league seas before federation is provided by the terms of the Federal Council of Australasia Act 1885 and by the legislation which was, pursuant to that Act, enacted for the waters off the shores of Queensland and Western Australia. In view of the discussion of this legislation in Bonser v La Macchia (1969) 122 CLR 177 ; [1969] ALR 741; particularly by the Chief Justice (CLR) at 191-2, Kitto J at 203-4 and by Windeyer J at 228-9, I do no more than note that the Chief Justice, while regarding as a misconception the concept that each colony had a territorial sea of its own, acknowledged the existence of "a widely held view" to that effect (at 191-2). It was that view, shared by the Imperial authorities and which, with respect, I must regard as no misconception, which accounted for the form taken by this legislation.

No doubt the true legal status of colonial league seas immediately before federation cannot depend either upon the views of law officers of the Crown or upon the assumptions made and acted upon by the Imperial authorities and by colonial legislatures of the time. However, substantial confirmation of the views which I have earlier expressed, and which are themselves, as I believe, founded upon principles of established law, is to be derived from these sources.

If, then, at federation the Crown in right of each colony owned the league seas off its coast-line, so that in all relevant respects those league seas were part of the territory of the colony, what, then, was the effect of federation? In my view it brought about no change in the title to those league seas and the sea-bed below them, it did, however, substantially alter the identity of the repositories of legislative competence over league seas and ultimately led to a radical change in the repository of sovereignty, in an international sense, over those seas. Hitherto legislative competence had been shared between the Imperial Parliament and the colonial legislature, but on federation the Commonwealth acquired, at the expense of the former colonies, extensive legislative competence, delineated by reference to subject matter. As to sovereignty, when the Commonwealth attained its own independent international status the Imperial Crown ceased to be the Sovereign, in international terms, in respect of those waters. These changes which took place, the first at the time of and the other subsequent to federation, were, however, in no way different in their impact upon the former colonial league seas than they were upon the land masses of the former colonies. I regard these waters and the land masses as identical for these purposes.

The Commonwealth contends that even if it be held that league seas were the property of the colonies at the time of federation, nevertheless the effect of federation and, in particular, of provisions of the Constitution, was to deprive them of league seas, which instead passed to the Commonwealth. As I understood that submission it depends what may be described as the potentialities for nationhood of the body politic, Australia, which are made manifest in the Constitution, and which require that there should pass from the federating colonies to the Commonwealth all the characteristic attributes of a nation state necessary for the ultimate assumption by the Commonwealth of its foreshadowed future as such a nation state. The possession of territorial waters being, it is said, such an attribute, there passed to the Commonwealth, on federation, all rights over the territorial waters around Australia's shores.

That the Commonwealth was, by the Constitution, endowed with a capacity fitting it to take its place as a nation state cannot be doubted. But in my view this initially inchoate capacity to act and be recognized as an international person cannot be called in aid for the purpose of affecting, within the internal constitutional structure of the federation, the property rights and associated legislative jurisdictions of its entities as they existed before federation. Any attempt to do so necessarily involves a misconception concerning the nature of sovereignty for the purposes of international law and presupposes that an internationally sovereign state must also be one possessing sovereignty, in the widest sense of that term, in matters municipal. Were that the case none of the great federal states of the world would be possessed of international sovereignty.

The fallacy which underlies this submission is most clearly revealed by the character of the particular provisions of the Constitution upon which the submission principally relies, namely s 51 (xxix), the external affairs power, and s 75(1), conferring original jurisdiction upon this court in all matters arising under any treaty. No doubt these provisions contemplate that the Commonwealth may enter upon the international stage as the bearer of rights and duties under international law, but to do so it needs no greater rights and competence within the federal structure than are already granted to it by the express terms of the Constitution, it requires no complete municipal sovereignty. As was said by the Supreme Court of the United States in United States v Curtiss-Wright Export Corporation (1936) 299 US 304 at 318: "As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign."

The position is, I think, accurately summarized in Bernier International Legal Aspects of Federalism (1973) where it is said, at p 81: "To sum up, the position of international law on the subject of international personality in federal states is as follows. In so far as such states are recognized as sovereign members of the international community, they enjoy full international personality. The fact that their international competence is limited to some extent does not affect in any way their international status."

It may well be that sovereignty over its territorial waters is an attribute of an internationally recognized nation state. If so the Commonwealth possesses that attribute, it has sovereignty in the relevant international law sense, just as, in that same sense, it has sovereignty over the land mass of the Australian continent. In neither case does its lack of full legislative competence or its lack of radical title affect its status as a nation state.

Divided legislative competence is a feature of federal government that has, from the inception of modern federal states, been a well recognized difficulty affecting the conduct of their external affairs; hence Professor Wheare has said, in a chapter devoted to the subject in his Federal Government 4th ed (1963), that "federalism and a spirited foreig policy go ill together" (at 186). International organizations have recognized and sought to overcome the problem in a variety of ways. The International Labor Organization, the implementation of whose conventions have given rise to particular difficulty and much litigation in Canada, provides an example of such endeavours -- see C W Jenks, Human Rights and International Labour Standards (1960) p 20 et seq . As a partial remedy recourse has in some instances been had to the use of special federal state clauses so as to limit the obligations of such nations with respect to those subject matters which fall within the legislative competence of a member state of their federations: art 19(7) of the amended Constitution of the International Labour Organization and art XXIV (12) of the GATT agreement provide instances of international bodies of which Australia is a member which have developed special mechanisms in recognition of the problem presented by federal states -- see generally Alexandrowicz -- World Economic Agencies (1962).

Whatever limitations the federal character of the Constitution imposes upon the Commonwealth's ability to give full effect in all respects to international obligations which it might undertake, this is no novel international phenomenon. It is no more than a well recognized outcome of the federal system of distribution of powers and in no way detracts from the full recognition of the Commonwealth as an international person in international law.

I regard as no more valid the broader submission that federation had the effect of vesting in the Commonwealth the former colonies' league seas or of creating new league seas of the Commonwealth.

Viscount Haldane, speaking for their Lordships in Attorney-General (Com) v Colonial Sugar Refining Co Ltd (1913) 17 CLR 644 at 651-2 spoke of the Australian Constitution, in contrast to the British North America Act of 1867, as establishing a system which was federal in the strict sense of that term; the Australian colonies "while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions", a position which his Lordship contrasted with the Canadian position in which the Act of 1867 created "a general Government charged with matters of common interest, and new and merely local Governments for the Provinces". His Lordship emphasized the continuity of the Australian colonies when he referred (at 653) to "the federating Colonies" whose pre-federation powers, except to the extent to which they were transferred by the terms of the Constitution "remained exclusively vested in the States". In much the same sense Kitto J, in Bonser v La Macchia (122 CLR) at 202 speaks of s 51(x) as disclosing an intention that legislative power over some part of the sea "which belonged to the colonies ... should be preserved to them as States of the Commonwealth".

Both the Constitution Act and the Constitution itself demonstrate the characteristic of which Viscount Haldane spoke. Covering cl 3 describes that polity in which the peoples of the several colonies are united as "a Federal Commonwealth" and covering cl 6 defines the "States", inter alia , to be such of the original colonies as are "parts of the Commonwealth" of Australia and established under the Act; in effect the colonies are given the new title of States. Sections 106 and 107 of the Constitution then give effect to the union of the colonies by providing for the continuance of their several constitutions and of the powers of their several colonial parliaments, other than those powers vested in Federal Parliament or withdrawn from the State parliaments.

The result of this union into a Federal Commonwealth is that "for all purposes of self-government in Australia, sovereignty is distributed between the Commonwealth and the States" so that each may in some aspects lawfully exercise sovereign powers -- New South Wales v Commonwealth (1932) 46 CLR 155 at 220 ; [1932] ALR 245, per Evatt J, who dissented but not as to this point -- cf per Starke J (CLR) at 184-5 and see per Lord Watson in Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick [1892] AC 437 at 442. As Evatt J pointed out in Broken Hill South Ltd v Commissioner of Taxation (NSW ) [1937] ALR 221 ; 56 CLR 337 at 378: "constitutionally speaking, the status of the States of Australia is equal to, or co-ordinate with, that of the Commonwealth itself. Sovereignty is not attributable to one authority more than to the others; it is divided between them in accordance with the demarcation of functions set out in the Commonwealth Constitution." Sir Owen Dixon expressed the same view when he said, in Federal Commissioner of Taxation v Official Liquidator of E O Farley Ltd [1940] ALR 216 ; 63 CLR 278 at 312, that the Constitution meant: "to establish two governments, State and Federal, side by side, neither subordinate to the other, ...".

Griffith CJ described the effect of federation when he said, in Kidman's Case (20 CLR) at 436: "When in 1901 the Australian Commonwealth was formed, this law [the common law] continued to be the law applicable to the rights and prerogatives of the Sovereign as head of the States as before, subject to any such local repeal." On federation prerogatives which partook of the nature of proprietary rights, and had theretofore been exercisable through colonial governors, remained, thenceforth "exercisable by the executives of the various States and for the benefit thereof": per Evatt J in the E O Farley Case (63 CLR) at 332.

Thus on federation a new polity was created, but in a manner entirely different from that which occurred when each of the Australian colonies were created as self-governing entities; no grant of land territory was required and no league seas were involved; the colonies, as States, brought with them into the federation their land territory and their league seas.

It is for the foregoing reasons that I conclude that the validity of the Seas and Submerged Lands Act 1973 is to be ascertained upon the footing that the league seas surrounding Australia's coastline are the property of the Crown in right of the several States and are part of the territory of the several littoral States.

In arriving at this conclusion I have the misfortune to differ in some respects from certain of the views expressed by the Chief Justice and by Windeyer J in Bonser v La Macchia ; included in these are the effect of Keyn's Case , the persuasive authority in the Reference re Ownership of Off-Shore Mineral Rights and the consequences of the granting of self-government to a colony. In the course of what I have already written I have endeavoured to state my reasons for so differing in these and other respects. I now add three further comments. The first relates to whether any inference arises from the nature of the jurisdiction exercised by Colonial Courts of Admiralty: Bonser v La Macchia (122 CLR) at 188-9 and 222-3. I do no more than refer to what was said by Gibbs J in R v Bull (1974) 3 ALR 171 ; 48 ALJR 232 at 255-6; and to add that the extent of Admiralty jurisdiction appears never to have had any significant relationship to the extent of territorial sovereignty and is not, in my view, capable of affording guidance in that area. Secondly, neither the Chief Justice nor Windeyer J regarded the grant of self-government to the colonies as significant because, as I would understand it, they had regard to sovereignty over league seas as an emanation of that recognition which international law accords to nation states, which the colonies never were (per Barwick CJ (122 CLR) at 185 and 188 and per Windeyer J at 221). I have earlier said that in my view international law appears to have had but a small part to play in the development of the concepts in issue in this case, at most supplying, through a process of judicial osmosis, a seaward boundary to those waters over which sovereignty is claimed. It follows from my adoption of this view that I derive no assistance, in the resolution of the questions raised in this case, from the undoubted fact that the colonies were never sovereign nations and did not attain international recognition as nation states. Finally I would adopt, with respect, what is said by Kitto J at pp 201-2 in Bonser v La Macchia concerning the decisions in Keyn and in Chelikani and generally concerning the Federal Council of Australasia Act 1885 and s 51(x) of the Constitution.

Having, at no doubt undue length, arrived at my conclusion concerning the status of Australia's league seas the question of the validity of the Seas and Submerged Lands Act may now be answered relatively briefly.

I take first the external affairs power, conferred by s 51(xxix) of the Constitution. If there is one consistent theme to be found throughout judicial discussion of the nature and extent of the external affairs power of the Commonwealth it is that it is undesirable to seek to express, in dicta, broad ranging views concerning its scope which go beyond the needs of the case in hand. The desirability of such an exercise in judicial restraint is obvious and I intend, as best I may, to observe it in the present case. Since I conclude that league seas are part of the territories of the littoral States of Australia it follows that they are not themselves external to Australia; it is therefore unnecessary to consider whether the power to legislate with respect to external affairs will extend to the making of a law merely because that law concerns a subject matter which is geographically external to Australia.

In the present case there exists an international convention which is relied upon to justify the exercise of legislative power under s 51(XXIX). Article 1 of the Convention on the Territorial Sea and the Contiguous Zone, to which Australia is a party, provides:--

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 extends sovereignty to the airspace over the territorial sea.

The question is whether the existence of the convention confers upon the Commonwealth power to enact those provisions of the Seas and Submerged Lands Act which relate to league seas and, in particular, ss 6 and 10 of the Act, which respectively declare to be vested in and exercisable by the Crown in right of the Commonwealth sovereignty in respect of the territorial sea and waters of the sea to the landward side of the baseline of the territorial sea, their beds, and subsoils, and the airspace over them. Sections 1 to 9 and 14 to 16 of the Act are ancillary to or consequential upon these two sections.

It is international intercourse between nation states which is the substance of a nation's external affairs. Treaties and conventions to which a nation may become a party form, no doubt, an important part of those affairs, but "external affairs" will also include matters which are not consensual in character; conduct on the part of a nation, or of its nationals, which affects other nations and its relations with them are external affairs of that nation, for instance, conduct in "violation of international comity": R v Burgess ; Ex parte Henry [1936] ALR 482 ; 55 CLR 608 at 669 (per Dixon J); thus s 51(XXIX) has been held to justify a law making it an offence to excite disaffection within Australia against the government or constitution of any of the King's Dominions: R v Sharkey (1947) 79 CLR 121 at 136-7, 149, 157 and 163. I would not think it is essential to validity that such a law be restricted to the protection of good relations within the King's Dominions.

However, it is not with the actual conduct by government of the nation's external affairs that the legislative power conferred by s 51(XXIX) is concerned; as Latham CJ pointed out in Burgess' Case (55 CLR) at 643, relations with other countries "are necessarily established by governments, which act for their people in relation to other peoples, rather than by legislatures which make laws for them". The legislative power comes to be exercised when it is necessary to regulate "the conduct of Australians in and perhaps out of the Commonwealth in reference to matters affecting the external relations of the Commonwealth": per Dixon J in Burgess (55 CLR) at 669. It is when, in the conduct of Australia's external affairs, occasion arises for the making of laws enabling international obligations to be performed, international rights to be enjoyed or international relations with other states to be preserved upon a satisfactory footing that s 51(XXIX) arms the Commonwealth with this power. Thus "to implement a treaty", as Latham CJ remarked in Burgess (at 644), is a common, although by no means the only, occasion for the exercise of power to legislate under s 51(XXIX). It is just such a function that the Commonwealth here contends that the Parliament was engaged in when it enacted the legislation here under challenge; hence, it is said, its validity.

I regard this contention to be plainly erroneous. The subject matter of the convention calls for little by way of municipal action for its implementation; there is still less which requires implementation by legislation as distinct from executive action, and what little does require legislative action the Act fails to implement.

Under our system of law the need for legislative implementation arises whenever a treaty requires municipal action to give effect to it; if the consequences of a treaty involve legal enforcement in the courts and are not already authorized by municipal law, legislation will be needed to make the necessary changes in the law or to equip the Crown with the necessary power to execute the treaty: McNair, Law of Treaties (1961) p 81. Lord McNair examines (at 83-100) the types of treaties which require legislative implementation. On the view which I take of the meaning and effect of arts 1 to 13 of the convention these articles call for no such implementation. The same may be said of arts 25 to 32, which are articles of a machinery nature only. On the other hand arts 14 to 24, concerned with the right of innocent passage, may well require Commonwealth legislative implementation in a federal polity in which the legislative or executive acts of member-states of the federation may affect conduct in league seas amd may not be consistent with observance of Australia's international obligation to ensure in those seas rights of innocent passage to vessels of other nations. However the Act does not attempt to legislate in this way and this is, no doubt, because it assumes, in my view wrongly, that by asserting sovereignty over league seas it can validly pre-empt State legislative competence.

My view that arts 1 to 13 call for no municipal implementation flows from my understanding of the meaning of these articles and, in particular, of the meaning of "sovereignty" as used in arts 1 and 2. I take it to mean sovereignty as between nation and nation and not sovereignty as it may come to be distributed domestically within the polity of any individual nation state. Were it not that in these proceedings the contrary view was confidently asserted, I would regard this as beyond argument. The sovereignty of which art 1 speaks is that national sovereignty existing over a nation's land mass which the convention "extends, beyond its land territory" to its territorial sea. The convention takes as its starting point the assumption, fundamental to all dealings between nation states, that each possesses external sovereignty in respect of its own land territory. In this context "Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State": the Island of Palmas Case 2 UN Rep (Int'l Arb, Awards) 829 at 838. The "any other State" there referred to is any other nation state, any other fellow member of the international community and not, of course, another member, unrecognized internationally, of a federal polity of which one entity alone has international recognition as a nation state. The convention's reference to sovereignty must be a reference to external sovereignty, which is the only sovereignty which is of relevance to international law. International law "refuses to concern itself with whether a state is federal or unitary. Both are treated alike .... In short, traditional international law leaves it to sovereign states to organize themselves internally as they see fit, provided the rights of third states are safeguarded under international law": Bernier, International Legal Aspects of Federalism (1973) p 269. International law does not concern itself to legislate as to the manner of distribution of powers within the polities of nation states of the international community and this whether they be unitary states or federations, the latter now being no novelty on the international scene since they represent that form of government by which about one-half of the population of the world is governed -- Oppenheim's International Law 8th ed, vol 1, p 179. As Innes CJ remarked in R v Christian [1924] AD 101 at 106, sovereignty is exercised in two directions and has a dual aspect, "internally it relates to the power of making and enforcing laws, externally to freedom from outside control. ... This distinction between internal and external sovereignty is inherent".

In his dissenting judgment in United States v California 332 US 19 Frankfurter J said of the majority's use of the expression "national dominion": "To declare that the Government has 'national dominion is merely a way of saying that vis-à-vis all other nations the Government is the sovereign. If that is what the Court's decree means, it needs no pronouncement by this court to confer or declare such sovereignty. If it means more than that, it implies that the Government has some proprietary interest. That has not been remotely established ..." (at 45). If his Honour's words be applied instead to "sovereignty" and to its use in the legislation here in question they precisely express my views.

The distinction between internal and external sovereignty is well recognized; it was adverted to and explained in United States v Curtis Wright Corp (at 316-8); in despatches to the South Australian authorities concerning the "Vondel" affair, in 1902, Mr Chamberlain, as Secretary to State for Colonial Affairs, made much of the distinction, contrasting the role of the Commonwealth, as alone representing the people of Australia and as alone bearing international responsibility in relation to matters affecting external states or communities with that of the Australian States. He distinguished between this situation and that relating to internal sovereignty when he said: "The distribution of powers between Federal and State authorities is a matter of purely internal concern of which no external country or community can take any cognisance" -- Doeker, The Treaty-Making Power in the Commonwealth of Australia (1966), p 41.

Because the convention refers to external sovereignty, so that arts 1 and 2 require no municipal implementation, it follows that these articles cannot be relied upon as invoking legislative power under s 51(XXIX) to enact laws having effective operation within Australia. This is not to say that the Commonwealth may not, if it chooses, by legislation under s 51(XXIX), declare its external sovereignty over territorial waters. By proclamation of 11 September 1953 Australia's sovereign rights over its continental shelf were declared; it is no doubt not obliged to make such an assertion by executive action alone. The United Kingdom, in which problems of distributed internal sovereignty do not arise, in fact gave effect to the convention by the Territorial Waters Order in Council 1964 rather than by any legislation -- see R v Kent Justices [1967] 1 All ER 560 and Post Office v Estuary Radio Ltd [1968] 2 QB 740, especially at 754. In the latter case Diplock LJ, speaking for the court, said (at 753), that to extend sovereignty to new areas of land or sea lay within the prerogative power of the Crown: "For such extension the authority of Parliament is not required". In any event all that the existence of arts 1 and 2 will authorize in the way of legislation, in the exercise of the "external affairs" power, is such a declaration of external sovereignty. What ss 6 and 10 of the Act do is, however, much more than this; they purport to operate in the area of internal sovereignty.

It is the failure to appreciate the distinction between internal and external sovereignty that has apparently led to the assumption, implicit in the present Act, that when the convention speaks of sovereignty it is in some way concerned with the distribution of powers within the polities of nation states. Without this assumption, which I regard as clearly erroneous, the validity of ss 6 and 10 of the Act, which employ "sovereignty" in its internal sense, cannot be sought to be supported as an implementation of the convention and hence within the power conferred by s 51(XXIX). These sections involve an acquisition by the Commonwealth of internal sovereignty over league seas to the exclusion of those other members of the federation, the States, which theretofore enjoyed legislative competency. To regard this as mere implementation of the convention is to misconceive the role of international law and of international conventions. In Starke's Introduction to International Law (7th ed) p 295, the British attitude to international law and its absence of competence in domestic matters is thus stated: "British practice has adopted these principles, and in the course of the preparatory work for the Hague Codification Conference of 1930 it was officially stated on behalf of Great Britain that: 'The distribution of powers between (a Federal State) and the other or subordinate units on whose behalf it is entitled to speak is a domestic matter with which foreign States are not concerned'."

Of the present convention it might well be said, as it has been said, in a quite different context, of the 1946 Convention on the Privileges and Immunities of the United Nations that "it is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality". -- Opinion of the International Court of Justice (1949) ICJ Reports p 179.

The present convention establishes rules as between the nations who are parties to it concerning the sovereignty of the littoral nation, relative to other nations, over league seas and this is a matter which is of the essence of external affairs. It is also a matter without municipal effect and calling for no exercise by the littoral nation of its domestic legislative power to enact laws for the governance of its people.

I have already said that legislative or executive action by the Australian States, who are necessarily not parties to the convention, might in some way prejudice those rights of innocent passage which the convention accords to the vessels of foreign nations and that Commonwealth legislation in implementation of the convention in this regard would be within power under s 51(XXIX) and would, in the light of the effect of s 109 of the Constitution, enable Australia effectively to discharge its international obligations concerning innocent passage. However, the present Act discharges no such obligations and this is a measure of its failure to derive validity from s 51(XXIX).

In what I have said above I have treated the Seas and Submerged Lands Act 1973, in its use of the term "sovereignty", as meaning internal sovereignty in contradistinction to the external sovereignty with which the convention is concerned. If this were not so, if the Act also spoke only of external sovereignty, it would doubtless be a valid, although somewhat ineffectual, enactment; one which did not purport to effect any change whatever in the respective areas of State and Commonwealth legislative powers. The Commonwealth disclaims such an interpretation, and the terms of ss 14 to 16 of the Act are inconsistent with it. It is not, I think, an acceptable view of the meaning of the legislation.

It follows that I do not regard the Act, so far as it applies to league seas, as capable of support by reference to s 51(XXIX) of the Constitution. It is accordingly unnecessary that I should examine the question whether, even if it otherwise fell within s 51(XXIX), it might, because of its effect upon existing areas of State competence so "undermine the constitutional safeguards of (Provincial) constitutional autonomy": Canada v Ontario [1937] AC 326 at 352 as to contravene "the various constitutional limitations expressed or implied in the Constitution": R v Burgess (per Starke J (55 CLR) at 658, and see also at 642 and 687) and Airlines of New South Wales v New South Wales (No 2 ) (1965) 113 CLR 54 at 85, 87, 118 and 165 ; [1965] ALR 984.

As an alternative to reliance upon the external affairs power the Commonwealth seeks to support validity of the Act by reference to s 122 of the Constitution. On the view which I take of the character of Australian league seas, as forming a part of the territory of the littoral Australian States, it needs little by way of exposition to exclude those waters from the ambit of Commonwealth legislative power, derived from s 122, to "make laws for the government of any territory" surrendered by a State or placed by the Queen under the authority of the Commonwealth or otherwise acquired by it. There can be no question of the surrender or placing of league seas under the authority of the Commonwealth, nor has there been any relevant acquisition; I have already said all that I would wish to say concerning the contention that, either on federation or at some later date when Australia acquired the status of an internationally recognized nation state, the Commonwealth "acquired" the Australian league seas. The closest approach to any such acquisition is, of course, the Seas and Submerged Lands Act itself. But s 122 confers power to legislate for the government of territory once acquired, not for its initial acquisition, and cannot afford support for the validity of ss 6 and 10 of the Act. Quite apart from this, the concluding phrase of s 122, providing for the representation of any territory in Parliament, might, for obvious reasons, be difficult to reconcile with the concept that the league seas may be regarded as territory to which the section refers.

I conclude that s 122 can provide no support whatever for the validity of the Act.

At the outset I referred to the two other grounds upon which validity was sought to be supported, as incidental to execution of the executive power of the Commonwealth and inherent in the Commonwealth's status as an international person. Given that the Act is concerned with internal sovereignty and not merely with external sovereignty the matters which I have already discussed suffice to dispose of these two grounds.

I accordingly conclude that those provisions of the Seas and Submerged Lands Act which purport to declare sovereignty, in an internal sense, to be vested in and exercisable by the Crown in right of the Commonwealth are invalid so far as they apply to Australia's league seas and to waters of the sea to landward of the baseline of league seas. It follows that s 6 is wholly invalid and that s 10 is in no better case.

The remaining sections of Pt I and of Div 1 of Pt II of the Act are, in my view, severable; they are capable of operation, quite independently of ss 6 and 10, for the purpose of giving effect to provisions of the convention concerned with the fixing internationally of the limits of the territorial sea. However, the provisions of Div 3 of Pt II appear to me so inextricably concerned with the assertions of internal sovereignty effected by ss 6 and 10 as to be incapable of severance. I would therefore include ss 14, 15 and 16 in the declaration of invalidity.

I turn finally to Div 2 of Pt II of the Act, which is concerned with Australia's continental shelf and with the application thereto of the Convention on the Continental Shelf. Paragraph 2 of Art 1 of that convention is, with only minor and inconsequential alterations, reproduced in s 11 of the Act:--

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 change in terminology of the Act from "sovereignty", when dealing with territorial seas, to "sovereign rights" in the case of the shelf is, although both terms refer, I believe, to external sovereignty only, evidence of the different approach which international law, as reflected in the two conventions, adopts in relation to these two areas.

The validity of s 11 and of the two other sections, which together comprise Div 2, as an exercise of the power to legislate in respect of external affairs, can be dealt with quite shortly, thereby reflecting the relatively brief arguments devoted to them during the hearing of this case. It is, I think, clear that the Australian colonies before federation made no claim to ownership of or dominion over the waters of Australia's continental shelf. The Federal Council of Australasia Act 1885 and the legislation passed pursuant to it and affecting waters off the Queensland and Western Australian coasts is testimony to the need felt by the colonies for Imperial intervention if they were to attempt to assert legislative control over waters beyond league seas. The continental shelf was at the time of federation and remained for a considerable period afterwards res nullius , in the words of Lord Shaw in Chelikani's Case . Into this vacuum stepped the Commonwealth; it had, by s 51(X) of the Constitution, been endowed with legislative power, limited as to subject matter, over what was described as Australian waters beyond territorial limits and had exercised that power by legislating as to fishing in those waters. Then, by the proclamation of 11 September 1953, it asserted sovereign rights over the Australian continental shelf for the purpose of exploring and exploiting its natural resources. The terms of Div 2 of the Act mark the Commonwealth's most recent essay in this area.

The provisions of Div 2 are, in my view, in no respect beyond power; they legislate for waters which are wholly beyond the boundaries of State territory and their subject matter is not proprietorship inconsistent with State interests, nor is it even sovereignty, but sovereign rights for specific purposes, the exploration and exploitation of natural resources. In relation to the continental shelf there does not exist that conceptual duality which applies to league seas; the absence of any State interests means that for that area the Commonwealth may act as if it were a unitary state, without need to draw any distinction, if distinction there be, between internal and external aspects of "sovereign rights".

The rights which international law now accord to coastal States in respect of the continental shelf off their shores have not enured for the benefit of the respective Australian States so as to give them, at the expense of the Commonwealth, new rights they did not previously possess. I have already described the provisions of the Convention on the Territorial Sea as leaving unaffected the distribution of sovereignty within Australia's federal polity; the Convention on the Continental Shelf is no more potent in relation to sovereign rights to the continental shelf. When the convention speaks of coastal states it refers to those international nation states which possess coastlines, in the case of Australia the Commonwealth. It follows that this assertion by the Commonwealth of sovereign rights over the continental shelf by means of legislation is an exercise of the powers conferred by s 51(XXIX). Apart from this consequence the convention has no operative effect as between the constituent members of our federation. So far as they are concerned the only relevant facts are that the Commonwealth has proclaimed, and now enacted, its sovereign rights in an area in which the States have not, and never have had, any interests.

I should add that, consistently with the foregoing, I would not, as at present advised, regard any action which the Commonwealth may take to assert external sovereignty in respect of territorial waters over an area in excess of three miles seaward of appropriate baselines as productive of any effect upon the States' league seas. These waters will not be altered in extent by any variation in Australia's international assertion of more extensive territorial waters.

The invalidity which affects certain provisions of the Seas and Submerged Lands Act is therefore, in my view, confined to ss 6, 10 and 14 to 16 of the Act and does not extend to such of its provisions as relate to the continental shelf.

I would, accordingly, in each of the proceedings before us, confine any declaration of invalidity to these enumerated sections of the Act.

Copyright notice

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).