New South Wales and Others v Commonwealth

135 CLR 337

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(Judgment by: Jacobs J)

New South Wales and Others
vCommonwealth

Court:

Judges: Barwick CJ
McTiernan J
Gibbs J
Stephen J
Mason J

Jacobs JMurphy J

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

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

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

Sydney

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Judgment by:
Jacobs J

The first question which I ask is -- (1) What is the sovereignty of which the Act speaks and in what way does it speak thereof ? If it is only that sovereignty of Australia which Australia as a nation asserts among the community of nations and if it does no more than declare that sovereignty, then the Act is, in my opinion, valid; but whether it be valid or not, no question is raised which falls to be determined between the Commonwealth and the States as to the extent of their respective powers. If Australia cannot declare its sovereignty over the whole or any part of its territory or of the seas beyond then certainly no State could do so. There is in this no impingement on State rights.

If the Act not only declares the sovereignty among nations but also provides how that sovereignty shall be exercised within the Commonwealth, then the question arises whether the Commonwealth has purported to provide for the manner in which sovereign power shall be exercised within the boundaries of the States as they existed at 1 January 1901. That question will be resolved by determining the question -- (2) Were any parts of the sea, in respect of which the Act declares that sovereignty shall be exercisable by the Crown in right of the Commonwealth, expressly comprised within the boundaries of a State or States at 1 January 1901 ? If that question be answered "Yes", the Act is invalid so far as it purports to confer the exercise of power solely upon the Commonwealth to the exclusion of the exercise by the States of their powers in respect of subject matters upon which the Commonwealth under the Constitution has no power to legislate.

But if that question be answered in the negative, then it is necessary to ask -- (3) Does any part of that sea, though it be not expressly within the boundaries of a State or States, adhere to the State or States which it adjoins so that by implication or operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries ?

If that question be answered "Yes", the Act will be invalid to the same extent as it would be if the second question be answered "Yes". But if the third question be answered in the negative, a question remains -- (4) Does a declaration by Australia that it has sovereignty or sovereign rights among the nations over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same powers as it has over the territory expressly comprised within its boundaries ?

If these last three questions arise and are answered in the negative, then the plaintiff States have not established that the Act is invalid unless it be beyond the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or sovereign rights over an area of the sea outside the boundaries of the States where that sea is not territory of the Commonwealth within the meaning of s 122 of the Constitution. And that is the fifth, and last, question.

(1) What is the sovereignty of which the Act speaks and in what way does it speak thereof ?

The Act is described as an Act relating to sovereignty in respect of certain waters of the sea and in respect of the airspace over, and the sea-bed and subsoil beneath, those waters and to sovereign rights in respect of the continental shelf and relating also to the recovery of minerals, other than petroleum [ sic ], from the sea-bed and subsoil beneath those waters and from the continental shelf. There is a preamble consisting of four recitals. First it is recited that the belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace thereover and the bed and subsoil thereof are within the sovereignty of Australia. Then there is a recital that Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone, a copy of which is set out in the First Schedule to the Act. Next there is a recital that Australia as a coastal State has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources. Lastly there is a recital that Australia is a party to the Convention on the Continental Shelf, and a copy of that convention is set out in the Second Schedule to the Act. "Continental shelf" is defined in s 3 to have the same meaning as in the convention.

The Act in ss 5-13 provides for the sovereignty of Australia in respect of the territorial sea and the sovereign rights of Australia in respect of the continental shelf. In respect of the territorial sea, the Governor-General may by s 7 from time to time by proclamation declare not inconsistently with the convention the limits of the whole or of any part of the territorial sea of Australia. He may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea or of any part thereof is to be measured. He may declare a bay to be an historic bay and define the seaward limits of that bay, or he may declare that waters are historic waters and define the limits of those waters. Under s 9 the Minister may cause to be prepared charts showing any matter relating to the limits of the territorial sea. Thus by the Act the limits of the territorial sea of Australia may be defined. Similar provisions are made in respect of the limits of the continental shelf.

In respect of the territorial sea, s 6 declares and enacts that the sovereignty in respect of that sea and in respect of the airspace over it and in respect of its bed and subsoil is not only vested in but also is exercisable by the Crown in right of the Commonwealth. By s 10 it is declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters is vested in and exercisable by the Crown in right of the Commonwealth. The waters of the sea here referred to are, in my view, the waters of the sea which cover the sea bottom. The seashore between high and low-water mark is not "waters of the sea" and therefore is not "internal waters of Australia" within s 10.

There are saving provisions in ss 14, 15, and 16. In particular, in s 14 there are savings as to sovereignty or sovereign rights in respect of any waters of the sea which are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and which were on 1 January 1901 within the limits of a State and which remain within the limits of the State. Thus the effect of s 10 is to ensure that sovereignty and sovereign rights in respect of all internal waters of Australia not falling within the saving provisions of s 14 are not only vested in but also exercisable by the Crown in right of the Commonwealth.

In respect of the continental shelf, s 11 declares that the sovereign rights of Australia as a coastal State in respect thereof for the purpose of exploring it and exploiting its natural resources are both vested in and exercisable by the Crown in right of the Commonwealth.

The first question is the meaning of the word "sovereignty" in the Act. The word expresses a concept notoriously difficult of definition, but I would essay that sovereignty under the law of nations is a power and right, recognized or effectively asserted in respect of a defined part of the globe, to govern in respect of that part to the exclusion of nations or states or peoples occupying other parts of the globe. External sovereignty, so called, is not mere recognition by other powers but is a reflection, a response to, the sovereignty exercised within the part of the globe. Looked at from the outside, the sovereignty within that part of the globe, assuming it to be full sovereignty and not the limited sovereignty which may exist in the case of protectorates and the like, is indivisible because foreign sovereigns are not concerned with the manner in which a sovereign state may under the laws of that sovereign state be required to exercise its powers or with the fact that the right to exercise those powers which constitute sovereignty may be divided vertically or horizontally in constitutional structure within the State. Therefore, although a sovereignty among nations may thus be indivisible, the internal sovereignty may be divided under the form of government which exists. However, that does not mean that external sovereignty and internal sovereignty are in kind different. Sovereignty in each case has the same content, the right and power to govern that part of the globe.

The provision that sovereignty in respect of the territorial seas is vested in the Crown in right of the Commonwealth is an assertion and declaration to the world of that aspect of sovereignty which is sometimes called external sovereignty. It does no more than could be done by the prerogative act of asserting that sovereignty.

The Act also provides that that sovereignty is exercisable by the Crown in right of the Commonwealth. It does not appear to me that this is merely an assertion of external sovereignty. It correctly speaks of the same sovereignty, but now the legislation looks at the manner in which that sovereignty shall be exercised within Australia. It is a legal provision that the asserted sovereignty will be exercisable in Australia by the Crown in right of the Commonwealth. I read these words to refer to the Crown in all its aspects in that right, the Crown in Council, the Crown in Parliament, and the Crown as the fount of justice. It is an assertion that the sovereignty is able to be exercised by the Commonwealth to the exclusion of the States. That exclusion, however, is mitigated by the saving of State laws in s 16(b).

Can the Australian Parliament so provide? There can be no doubt that if, beyond waters of or within any bay, gulf, estuary, inlet or port referred to in s 14, the sea which may be proclaimed by the Governor-General under s 7 is within the boundaries of a State, it is beyond the power of the Australian Parliament to provide that sovereignty in respect thereof is exercisable by the Commonwealth to the exclusion of that State. The next question therefore is:--

(2) Were any parts of the sea in respect of which the Act declares that sovereignty shall be exercisable by the Crown in right of the Commonwealth expressly comprised within the boundaries of a State or States at 1 January 1901 ?

It is necessary to examine the documentation by way of statute, letters patent, commission or proclamation whereby the boundaries of the States are established.

I do not propose to relate fully the history of the specification and alterations of the boundaries of the various Australian colonies. That has been comprehensively done by Mr McLelland in his article appearing in (1971) 45 ALJ 671. After Cook's claim, the boundaries of New South Wales were first defined in the Commissisons to Governor Phillip which referred to "our territory called New South Wales, extending from the northern cape or extremity of the coast called Cape York, in the latitude of 10°37' south, to the southern extremity of the said territory of New South Wales or South Cape, in the latitude of 43°39' south, and of all the country inland to the westward" as far as 135° longitude east "including all the islands adjacent in the Pacific Ocean, within the latitude aforesaid ... and of all towns, garrisons, castles, forts and all other fortifications or other military works which now are or may be hereafter erected upon this said territory". In my opinion this language refers to land only. As will hereafter appear, a reading of the language in the light of common law principle will include therein the waters which may be compendiously described as "inland waters" and will everywhere include the seashore down to low-water mark. But the language itself refers to land only.

In 1824 Captain Bremer took possession of the North Coast of the continent from longitude 135°E, the existing boundary, to longitude 129°E and the 1825 Commission to Governor Darling described the territory of New South Wales as extending to the longitude 129°E.

Tasmania was constituted a separate colony by Order in Council in 1825. A Governor in Chief was appointed "in and over our Island of Van Diemen's Land, and all Islands and Territories lying to the Southward of Wilson Promontory ... and to the northward of the forty-fifth degree of south latitude" (this was 1°21' south of the South Cape latitude described in Phillip's Commission) "and between the hundred and fortieth and hundred and fiftieth degree of longitude East from Greenwich and also Macquarie Island ... and of all Towns, Garrisons, Castles, Forts and all other Fortifications or other Military Works, which are or may be hereafter erected upon any of the said Islands and Territories". Again this language appears to me to refer only to the land. It has been submitted that a rectangle was described by the latitudes and longitudes in such a way that both land and sea contained therein were intended to be included as territory of the colony. It has been further submitted that if land only was intended to be included in the description then the word "territories" was superfluous and that the words "Island" and "Islands" would have sufficed. But on the other hand it could be said that if the colony was intended to consist of the whole surface of the globe within the described rectangle, no further description would have been necessary. The primary meaning of "territory" is land, and I can discover in the language nothing which would displace that primary meaning.

After Western Australia, which I shall leave for the moment, the next colony established was South Australia. By the letters patent of 1836 the province was erected with boundaries fixed on the North 26°S and on the South the Southern Ocean. East and West land boundaries were fixed and the description continued "including therein all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said Province ...." In 1961 the Western boundary was extended to meet the Eastern boundary of Western Australia but the description of the Southern boundary has not been altered, directly or indirectly. The language speaks for itself.

Western Australia was first settled as a colony in 1829. Its boundaries, which at all times lay wholly outside the boundaries of New South Wales, were finally fixed by letters patent of 10 July 1873 as follows: "... Our Colony of Western Australia is, for the future, to be considered and taken as extending from the parallel of thirteen degrees thirty minutes south latitude, to West Cape Howe in the parallel of thirty-five degrees eight minutes south latitude and from the Hartogs Island, on the Western Coast, in longitude one hundred and twelve degrees fifty-two minutes to one hundred and twenty-nine of east longitude ... including all the islands adjacent in the Indian and Southern Oceans within the latitudes aforesaid ... and within the longitudes aforesaid. ..." This language is consistent only with an intention to refer to the land, the mainland and the islands. The sea surrounding the islands is not included.

Victoria was made a separate colony in 1850 by the Australian Constitutions Act. The Act provided that: "the Territories now comprised within the said District of Port Phillip, including the Town of Melbourne, and bounded on the North and North-east by a straight Line drawn from Cape Howe to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia," should form the new colony. The district of Port Phillip was of course a district of New South Wales. At this stage New South Wales, by virtue of the 1848 Commission to Governor Fitzroy, comprised: "all that portion of Our Territory of Australia or New Holland, lying between the 129th and the 154th degrees of East longitude and between the 26th and the 40th degrees of South latitude, including all the Islands adjacent in the Pacific Ocean, within the latitudes aforesaid, save and except that part of Our said Territory hereinbefore described, which is called and known by the name of the 'Province of South Australia'" and "in addition ... all our Territory lying Northward of the 26th degree of South Latitude, with all the Islands adjacent in the Pacific Ocean". (The "addition" was related to the inclusion in New South Wales of the territory which had been temporarily created as the colony of North Australia. It is not significant for present purposes.)

The boundaries of New South Wales at that date were defined by reference to "our Territory of Australia or New Holland" and this territory, as I have stated, was land and did not include any adjoining open seas. The Victorian boundaries stated in the Act of 1850 were only inland boundaries to the North and North East and to the West. There was no need to state an Eastern or Southern boundary because there lay the sea. The colony was thus defined in terms of its land mass.

The boundaries of New South Wales were re-stated in the New South Wales Constitution Act of 1855: "For the Purpose of this Act, the Boundaries of the Colony of New South Wales shall, except as herein-after excepted, comprise all that Portion of Her Majesty's Territory of Australia or New Holland lying between the One hundred and twenty-ninth and One hundred and fifty-fourth Degrees of East Longitude ... and Northward of the Fortieth Degree of South Latitude, including all the Islands adjacent in the Pacific Ocean within the Latitude aforesaid, and also including Lord Howe Island ... save and except the Territories comprised within the Boundaries of the Province of South Australia and the Colony of Victoria, as at present established ...." There is nothing in this language which can be read as a reference to parts of the open sea. In particular, the reference to "islands" is hardly consistent with such a reading of the section.

It should be noted that in 1863 so much of the colony of New South Wales as is now the Northern Territory was annexed to South Australia.

Queensland was erected into a separate colony in 1859. By letters patent of 6 June 1859 Her Majesty "separated from our Colony of New South Wales and erected into a separate colony so much of the said Colony of New South Wales as lies northward of a line commencing on the sea coast at Point Danger" (then the southern and western land boundaries were described) "together with all and every the adjacent islands their members and appurtenances in the Pacific Ocean". I do not think that the words "members and appurtenances" are apt to include the open sea surrounding the islands. Once it is recognized that land between high and low-water mark is part of an island it may be that the words add little, but in any case there does not appear any intention to do more than separate a part of the territory of New South Wales and so to erect a new colony.

In 1862 by letters patent so much of New South Wales as lay north of 26° South and between 141° and 138° East, "together with all and every the adjacent islands, their members and appurtenances in the Gulf of Carpentaria" was annexed to Queensland. For the same reasons as I have expressed above, this can only be read as adding land to the colony.

In 1872 "all the Islands lying and being within sixty miles of the coast" of the colony of Queensland were annexed to and made part of the colony.

In 1879, by authority of letters patent and after the passing of the Queensland Coast Islands Act of 1879 (Qld), the Governor of Queensland proclaimed that certain islands described in a schedule to the proclamation should be annexed to and become part of the colony of Queensland. The schedule referred to "Certain Islands in Torres Straits and lying between the Continent of Australia and Island of New Guinea, that is to say all Islands included within a line ...". That line is then stated. Clearly the reference is only to the islands and not to the sea contained between the mainland and the line there described.

From this summary it appears that no description of the colonies in any case expressly included within their boundaries at 1 January 1901 any part of the adjoining open sea. It follows that references in the Constitution statutes to "the waste lands of the colony" will not as a matter of expression include any land (or sea) not included in the boundaries of the colonies. I turn therefore to the next question.

(3) Does any part of that sea, though it be not expressly within the boundaries of a State or States, adhere to the State or States which it adjoins so that by implication or operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries ?

It is to the common law that one must look in order to determine either the meaning of words used in the statutes and proclamations or the law which operates in application of the descriptions (in those statutes and proclamations) to the subject matters. Though there is a rule that the statute or other act should be construed so that it will be in conformity with international law rather than the contrary, it does not follow that words or descriptions in a proclamation or a statute should be given an extended meaning or operation because the giving of that extended meaning or operation would not contravene accepted principles of international law.

In order to discover the common law principle it is necessary to go back to that law as it developed in its place of origin, England. If, by the common law, England had included any of the seas which adjoined the land and yet were not intra fauces terrae then it would indeed be a strong argument that a colony also included such seas. But England did not in a relevant sense include those seas under the common law. If it had, the common law would have been the law which governed those seas. This would have been so irrespective of which court had jurisdiction to apply the common law in those seas.

The question is not whether the seas were part of the dominions of the King of England or of the realm, if that word be used in the sense of the dominions of that King. The question whether any open seas were part of the realm of England is over-simplified and therefore misleading for the answer depends upon the meaning given to the word "realm". If the word means all that which was within the allegiance of the King of England as of his Crown of England, then the seas were within the realm. But if the word means that place where the common law extends, then the seas are outside the realm (Co Litt, s 439). In the construction of various statutes it has been a question in which sense the word is used.

"... 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 ..." ( R v Keyn (1876) LR 2 Ex D 63 at 197, per Cockburn CJ).

The long established principle, doubted by some of the minority in R v Keyn , supra (see per Grove J at 115 and Brett JA at 144) was that the common law never did apply upon the high seas. Lindley J, another of the minority (at 92 and 96) did not doubt the correctness of this view but held that the common law had been extended to the seas by statute. Cockburn CJ in his leading judgment among the majority showed (at 163 et seq ) that the common law had never extended to the seas. I am satisfied that he was correct. The common law was the law which applied to all persons within England of which it was the law from time immemorial. It did not apply to persons or in places outside England unless it was made applicable by statute (eg to Wales by 27 Hen VIII, c 26) or unless it, with applicable statute law, was carried abroad to lands settled as a colony. "The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only" Blackstone's Commentaries 15th ed (1809) vol 1, p 93.

Within England the King was sovereign under the common law. England for this purpose was that land and those waters intra fauces terrae within the counties of England. It thus included inland waters even though the principles for determining what were inland waters were not conclusively settled. It included the foreshore (down to low-water mark) of counties which had a seaboard. It included accretions to the foreshores or seashores by slow and imperceptible change.

The foreshore between high and low water and the beds of all waters intra fauces terrae over which tidal waters flowed were vested in the King as part of England, but significantly were so vested under the common law and subject thereto. Therefore they could be held under rights springing from the common law. They could be parts of manors or honours, and could therefore be the subject of tenures and estates under the English law of real property. Rights in respect of them could rise by prescription as well as by proved grant. Those rights could exist in individuals or corporations or in communities of free inhabitants.

The sea beyond was not within the counties and was not part of England under the common law. "... for as to the right of the lord extending three miles beyond low-water, it is quite extravagant as a jurisdiction belonging to any manor. As between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles, but that rests upon different principles ..." R v Forty-nine Casks of Brandy (1836) 3 Hag Adm 257 at 289-90 ; 166 ER 401 at 413.

Nevertheless, the seas belonged to the King, both in governorship and proprietorship. This has been stated time and time again and must be accepted. The correctness of this view was doubted by the majority in R v Keyn , supra, and it is this aspect of the decision which has particularly been the subject of doubt or criticism: see for example Secretary of State for India v Chelikani Rama Rao LR 43 Ind App 192 at 199 et seq. That case reaffirms the dominion and proprietorship of the Crown in the sea which it claimed, the claim by that time being probably limited to the belt within three miles of its land dominions. Carefully the Privy Council refrained from defining the extent of the sea so claimed, but recognized that it was at least a three miles belt.

The King's rights in or over the open seas adhered to him as a ius regale in right of his Crown of England. These rights adhered to him by virtue of his kingship in its national rather than its feudal aspect. The royal right was a prerogative recognized by the common law, and to that extent it was part of the common law, but it did not have its source in that law. His rights therein were not governed by the common law and the extent thereof was not determined by that law. So far as his rights were governed they were governed by statute, most importantly in ancient times by the Great Charters.

But since the King's claim was recognized by the common law it could be said to be a right under the common law. In De Jure Maris attributed to Hale, it is said:--

The narrow sea, adjoining to the coast of England, is part of the waste and demesnes and dominions of the king of England, whether it lie within the body of any county or not.

This is abundantly proved by that learned treatise of Master Selden called Mare Clausum ; and therefore I shall say nothing therein, but refer the reader thither.

In this sea the king of England hath a double right, viz. a right of jurisdiction which he ordinarily exerciseth by his admiral, and a right of propriety or ownership.

Hall in his Essay on the Rights of the Crown in the Sea-shores of the Realm (published in 1830) says at p 1:--

The British Seas, sometimes called the Four Seas, are those which encompass the coasts of England, Scotland, and Ireland. To the west they not only include the sea between Great Britain and Ireland, but extend over the Atlantic Ocean, which washes the western coasts of Ireland: this western part of our sea is subdivided; for, so much as runs between England and Ireland is called St George's Channel, or the Irish Sea; and the sea on the west coast of Scotland is sometimes named the Caledonian, Deucaledonian, or Scottish Sea, and sometimes the North Sea. To the east we have the German Ocean, which is bounded principally by the opposite coasts of Germany, and the United Provinces (now Belgium); lastly, to the south there is the British Channel, or Sea, which runs along the French coast, and, comprehending the Bay of Biscay, ends with the northern coast of Spain.

Over the British seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world. Whatever opinions foreign nations may entertain in regard to the validity of such claim, yet the subjects of the King of England do, by the common law of the realm, acknowledge and declare it to be his ancient and indisputable right.

This dominion and ownership over the British seas, vested by our law in the King, is not confined to the mere usufruct of the water, and the maritime jurisdiction, but it includes the very fundum or soil at the bottom of the sea. 'The sea is the King's proper inheritance,' (Dav Rep 57. Callis on Sewers , 39, 41) and he is 'Lord of the Great Waste,' both land and water; ' tam aquae quam soli .' Selden, in his celebrated treatise on the Dominion of the Seas ( Mare Clausum , Lib 2 Ch 22 and 24), would seem to contemplate this ownership of the King, as combining both jurisdiction and ownership; the one, indeed, would seem to involve the other, if Selden's doctrine to its full extent be admitted.

There are eminent writers upon natural and upon national law, who have controverted Selden's doctrines, and have denied the King of England's exclusive dominion, and consequently his ownership over the British seas; but however this may be, and probably will ever continue, vexata quaestio between such writers, we know that the writers of the common and municipal law of England, as well as the decisions of our judicial courts, all speak the same language, and appropriate the dominion of the British seas tam aquae quam soli , to the King.

Why, then, did the right to the seas adhere to the King in right of his Crown of England? It was because that King asserted an excellence and pre-eminence over other sovereigns. The breadth or width of his assertion from time to time depended on high politics and it varied from time to time depending on considerations of power and of expediency. The history of its changes lies not in legal history but in political history. The King in right of his English Crown at one time claimed the narrow seas between England and the continent of Europe. He claimed those seas right up to the opposite land's edge. He at another time claimed the Four Seas which washed the shores of the British Isles and the claim extended at times even as far as the Americas. He would not recognize the sovereign rights therein of any other, not the King of Scotland nor the Lords Marcher of Wales nor the Lords of Ireland (King John took the title Dominus Hiberniae and Henry VIII the title, King of Ireland), nor the sovereigns of Europe. Even after France was lost at the end of the Hundred Years War, the King of England maintained his claim to the seas up to the coast of France. But at one stage he did recognize that the King of Spain had sovereignty in the sea off the coast of Spain.

"The sea is of the ligeance of the King as of his crown of England" 6 R II Fitz Protect 46. See Case of the Banne Fishery (1610) Davies Reports 149 at 152 where this statement is applied to the seas of Ireland which was not only outside the common law but had its own Parliament (though from an early time the English Parliament was sovereign thereover). In that case it is also said that the sea is the King's proper inheritance and that for that reason before the statute of (1344) 18 Edward III c 3 no subject could pass over the sea without the King's special licence; but that there it is enacted that the sea shall be open to all merchants. And it should be added that by the Magna Carta of John public rights of fishing in tidal waters were preserved: see Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153 at 170-1.

It is important to note that what the King claimed, he claimed in right of his English Crown. Not in right of the French Crown which he long claimed nor in right of the Scottish Crown which descended to him nor by virtue of his overlordship of Man nor as Lord, later King, of Ireland, nor at a later time as Elector of Hanover nor earlier as Duke of Normandy or Count of Anjou.

When the King claimed overseas dominion or lordship of the seas and made his claims as King of England, the common law of England recognized those claims. As they were made in right of his English Crown, the common law regarded them as made by virtue of his prerogative as King of England. But when he claimed France he claimed it as the lawful King of that country. His claim would likewise be recognized by the common law but his claim was not a claim by virtue of his prerogative as King of England.

Moreover, no subject of that Crown could claim sovereignty over any part of the globe in his own right, unless that sovereignty was bestowed on him by a sovereign power recognized by the English Crown and the new sovereignty was recognized by the English Crown. Unless under another sovereign, a subject of the English Crown could not own land except of that Crown because, if he could, he would be sovereign of that land; and that he could not be.

The colonies, both in the First and the Second British Empires, were colonies of the King in right of his English and, later, United Kingdom Crown. At the same time, the King claimed the seas as being within his allegiance and his proper inheritance. When, therefore, the King created a colony and appointed a governor thereof, can it be implied that some part of the open sea adjoining the land was included in the colony? If so, that sea was governed by the common law, which the settlers took with them as part of the law of England. The rights of the King and his governor in that part of the colony consisting of the open seas would be rights under the common law. If the King in his body politic and if his subjects of England were governed by the common law only upon the land and on waters intra fauces terrae , there is no place for an implication that those subjects, when under the King they settled a new colony, took the common law beyond the land and to some part of the sea adjoining the colony. If it were so, the King would have the prerogative of establishing new courts to apply the common law not only upon the land of the colony but on its adjoining sea as well. But the King had already and anciently exercised the prerogative to create the jurisdiction of the Lord High Admiral and this had been recognized and defined by statute. A statute would be required in order to supersede this jurisdiction as indeed it was when the Supreme Courts of New South Wales and Van Diemen's Land by 9 Geo IV c 83, s 4 were given a jurisdiction to try offences under Imperial law committed on the seas and certain other places: see per Barwick CJ in R v Bull (1974) 3 ALR 171 ; 48 ALJR 232 at 241.

Whether the boundaries of the colony be proclaimed by letters patent or delineated by statute, far from there being an implication that some part of the sea was intended to be included, the implication must be to the contrary. However, it should be noted that the colony, like England, will include the waters intra fauces terrae and the seashore between high and low-water mark and the accretions thereto by slow and imperceptible change: Attorney-General of Southern Nigeria v John Holt and Co (Liverpool) Ltd [1915] AC 599 ; [1914-15] All ER Rep 444.

Nor could there be any rule of law operating to bring within the boundaries of a colony, defined by letters patent or by statute or otherwise, a part of the seas which did not expressly or by implication fall within the boundaries so defined. The same reasons which prevent the words used being taken by implication to include the open seas preclude such a rule of law.

It is therefore not to the point to say that the Imperial Crown had, by the time the Australian colonies were founded and by the time the various letters patent and Imperial statutes were made or passed, limited its claim to the open seas to the three mile strip of sea adjoining its various dominions. That did not change the common law even though the change might need to be recognized by the common law in its recognition of the King's prerogative to claim such part or parts of the world's oceans as he saw fit and to withdraw such a claim.

It will be apparent from what I have written that I regard R v Keyn , supra, as correct in result. To describe it as a case concerned with the respective extents of jurisdiction of the common law courts and the Court of Admiralty is not to diminish the importance of the decision but to emphasize its essential importance in the present context. The courts of common law had no jurisdiction because the common law did not extend to regulate the rights and obligations of persons beyond the boundaries of the counties. The law (other than statute law) governing the rights and obligations of persons and things upon the sea was the English maritime law in content substantially the same as the common maritime law (unless any statute provided otherwise): The Gaetano and Maria (1882) 7 PD 137 at 143The Tojo Maru [1972] AC 242 ; [1971] 1 All ER 1110. The jurisdiction of the Lord High Admiral extended to those persons, matters and things which under the maritime law could be subject to or determined by his court. The criminal jurisdiction under the maritime law did not extend to the acts of foreigners on a foreign ship in a place where the maritime law was the applicable law. Whether or not the seas are described as outside the realm depends not on the extent of the realm but on the meaning given to the word, as I have earlier said, and in v Keyn , supra, the question was the meaning of that word in the Statutes of Richard II. It was not strictly necessary to decide in R v Keyn whether the Crown of England owned the sea or any part thereof below low-water mark and not intra fauces terrae . The important point was that the common law did not extend there.

What is further submitted is that when a colony was made self-governing or at least when responsible government was introduced, the prerogative of the King manifested by his claim to the sea or a part thereof in right of his Crown of England or of the United Kingdom was transferred in some way to his prerogative in right of his Crown in the colony.

The question whether, when the prerogative is exercisable in respect of particular territory by some one other than the King in right of his English Crown, that prerogative may be exercised by that other over some part of the sea adjoining the territory was posed and answered as long ago as 1622 by Callis, "the famous and learned Robert Callis Esq": as he was thereafter for centuries described, in his reading on the Statute of Sewers, 23 Hen VIII c 5. The prerogative of the King to maintain and protect the coastal lands against inundations was replaced or reinforced by that statute and the work so far as the statute extended was entrusted to the Commission. Callis's first lecture dealt with the law of the seashore and the adjoining sea in order to determine how far the statute extended. He took as an example the supposed case of an island which formed by sudden effluxion of the sea off the coast of the County Palatine of Chester. The Prince of the County Palatine, he said, is not only owner of the county but Lord of the prerogatives there: "The Prince hath not onely Jura Regalia , but also Escheta Regalia within his said Palatinate, and so in my opinion is not onely owner of the County, but Lord of the Prerogatives there, and all Jurisdiction is to the Prince, onely a Writ of Error lieth in the King's Bench of a Judgment there, like an Appeal to Caeser , then he is Lord of those Laws by which the Freehold and Inheritance of those lands be ruled, wherefore then should not these lands belong to his Grace?" But Callis concludes that the newly formed lands would not pass into the ownership of the Prince by his prerogative because "the County Palatine vested in the Prince, is prescribed within no other bounds than the word County doth confine it" and "no increase of the new left grounds can possibly become within the County of the City of Chester; for the bounds thereof cannot extend over that circle which their Charter hath confined them to: and so for the causes and reasons formerly declared, I take it, that the said Island is the Kings ..."

It should be noted that Callis would have the realm of England as referred to in the Statute of Sewers extend over the seas to an undefined extent, but this aspect of his thesis is related to the different meanings which may be given to the word "realm" as I have explained earlier, and does not impinge upon his analysis of the principle that a grant or delegation of the iura regalia cannot extend beyond the boundaries of the grant.

Not only is there no basis in English legal theory for the view that the seas adjoining the Australian colonies came to be held by the Crown in right of those colonies and not in right of the United Kingdom, but also in practical effect such a view is untenable. The claim of the Crown to the sea is an assertion of sovereignty. It may or may not be recognized by the rules of international law currently accepted as the law of nations. It happens that a three mile limit came during the nineteenth century to be recognized among the great majority of the great powers but it was not universally accepted: see Attorney-General for British Columbia v Attorney-General for Canada , supra, at 174. Nor was it agreed that a sovereign state owned the seas in the same way as it owned the land. It has never been so agreed. The right of innocent passage denies that proposition. And it may now be asked -- could the Crown in right of a colony deny innocent passage to foreign ships in the adjoining seas? The answer must be negative. Yet the Imperial Crown could do so by virtue of its prerogative. The repercussions among nations could be very serious. They were serious enough when the Territorial Waters Jurisdiction Act 1878 (Imp) was passed and would have been equally serious if the act done in relation to the sea had not been the passing of a statute but had been a prerogative act or even if the prerogative assertion had been made. But the legality of the act would not have been cognizable by any municipal court. The international law, whatever it was, on the extent of territorial seas was and is no part of municipal law as a majority of the judges in R v Keyn made clear. Yet it is said that the prerogative of the Crown in respect of adjoining seas adhered to the Crown in right of a colony provided that the Crown did not break the rules of international law. I do not understand such a concept, when those rules are not part of any municipal law. And, this being so, how did the prerogative come to divide between the Imperial Crown which could refuse to recognize or obey a rule of international law and the Crown in right of the colony which could not so refuse? I can see no way. It was argued that because the prerogatives of the Crown in the colony, even those of a proprietary nature, became vested in the Crown in right of the colony on the grant of responsible government. ( Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 442, 448-56) then, even though the sea and its bed be not part of the colony, the prerogative right thereto nevertheless became vested in the Crown in right of the colony. The argument involves an obvious non sequitur .

I now come to the argument that because a colony could make laws which had effect and could be enforced upon the seas bordering that colony therefore those seas were within the boundaries of the colony. There can be no doubt that during the nineteenth century the rule of international law which the Imperial Crown came to recognize as that to which it would subscribe was that the territorial waters of a sovereign state in the usual case extended a distance of three miles from the low-water mark of the shore of that state. When the Crown recognized this rule of international law, it at the same time forwent its ancient claim to seas beyond those limits. The courts of law were bound to have regard to this limitation of the Crown claims where it was necessary and appropriate so to do because only what the Crown claimed in the seas was recognized by the common law. Likewise the courts would recognize a claim to jurisdiction in territorial waters by a foreign sovereign if that claim was not inconsistent with a claim of the Crown. Therefore, when and so long as the Crown recognized the three mile belt of sea as a belt within which an adjoining state could exercise jurisdiction, the courts of law on well established principle would recognize such a claim of a foreign sovereign. That was done in Carr v Fracis Times & Co [1902] AC 176.

A result of the limitation of the Crown claim to a three mile belt of territorial sea was that a colonial legislature was regarded by the law officers of the Crown (and very many examples have been cited to us) as having a power to make laws taking effect within but not beyond those limits. Now it is said that because colonial legislatures legislated in respect of the seas within these limits (with the approval of the law officers in their advices and therefore with no disallowance of the legislation) and because a colonial legislature could not pass extra-territorial legislation, therefore the adjoining seas must have been within the territory of the colonies. Stephen J had occasion to refer in R v Bull (1974) 3 ALR 171 ; 48 ALJR 232 at 259-60, to the limits of colonial legislative power and I agree with his account thereof where he adopted, as I would now adopt, the statement of Barwick CJ in Bonser v La Macchia (1969) 122 CLR 177 at 189 ; [1969] ALR 741 at 747. "Of course, the colonies were competent to make laws which operated extra-territorially -- that is to say, beyond their land margins and in and on the high seas, not limited to the three-mile belt of the territorial sea. But this legislative power of the colony was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony." The argument, therefore, based on the limit of colonial legislative power, does not avail the States. The exercise of legislative power and the exercise of powers pursuant to legislative authority have been exemplified to us in great numbers but they are no more than examples of the exercise of the colonial legislative or executive powers on the principle enunciated by Barwick CJ in the passage quoted. Whether or not they were all within that principle does not now fall to be determined.

I therefore answer my third question by stating that no part of the sea adheres to the State or States of the Commonwealth which it adjoins so that by implication or by operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries. And I turn now to my fourth question.

(4) Does a declaration by Australia that it has sovereignty or sovereign rights among the nations over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same powers as it has over the territory expressly comprised within its boundaries ?

The argument presented on this question depended upon the proposition that the boundaries of the respective States were co-extensive with the area in respect of which under the currently accepted law of nations laws for the government thereof could be made. The proposition is inconsistent with the reasoning upon which I have answered the last question and I therefore do not repeat the reasons which lead me to deny this proposition. No answer to any of the questions raised in these cases can, in my opinion, be found in the law of nations where that law is not a part of the municipal law.

But there is an associated approach which, although it was not put, needs to be considered. Can it be that when Australia expands by establishing sovereignty either by international assent or by national claim over an area adjacent to the boundaries of a State, the federal nature of our system of government likewise expands so that the area of new sovereignty becomes incorporated into the federal structure? It is a novel question but the answer cannot be that the boundaries of the various States expand. What happens in my view is that the limits within which it is proper for States to pass laws having an extra-territorial operation, limits to which I shall have occasion hereafter to refer, expand, so that laws which would not otherwise be for the peace and welfare and good government of a State may become so by virtue of the sovereignty of Australia in the seas within the extended area. However, any such laws will not be valid to the extent that they are inconsistent with a valid Commonwealth law. And that brings me to the last question:--

(5) Is it within the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or sovereign rights over an area of the sea outside the boundaries of the States where that sea is not territory of the Commonwealth within the meaning of s 122 of the Constitution ?

The Act discloses no intention to acquire the territorial seas and the rights in the continental shelf as territory of the Commonwealth. Nor does the Act purport to make the conventions part of the law of the Commonwealth or to implement treaty obligations in the manner dealt with in R v Burgess ; Ex parte Henry (1936) 55 CLR 608 ; [1936] ALR 482. It seems clear that on the interpretation which I have adopted of s 6 and s 10 the Act goes beyond the conventions at least in so far as it provides how sovereignty shall be exercised in the relevant areas and perhaps in that it does not enact the limitations on the exercise of sovereignty and sovereign rights which are contained in the two conventions. The scope of the external affairs power, as it fell to be considered in that case, therefore does not arise in the present case.

It has been submitted that the words "external affairs" in s 51(xxix) do not comprehend every external affair but are intended "simply to bring within power British Imperial (now Commonwealth of Nations) Affairs as well as Foreign Affairs". As I understand the submission, by "Imperial Affairs" and "Foreign Affairs" are here meant relationships with other parts of the Empire (Commonwealth of Nations) or other countries which are reflected in some dealing with them or attitude or stance taken towards them. It is therefore submitted that laws made with respect to external affairs do not comprehend all laws operating upon persons or things beyond the boundaries of the Commonwealth; that the source of power to make such laws must be found in other particular subject matters of legislative power.

In my opinion the Commonwealth has the power to make laws in respect of any person or place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth.

The power to make laws in respect of any place outside and any matter or thing done or to be done outside the boundaries of the Commonwealth is clearly not vested in the States. It is in my view now vested in the Australian Crown by virtue of the external affairs power.

The words "external affairs" must be given their ordinary meaning. It is true that the operation of the power may have been limited in 1900 by the concept that Australia, lacking sovereignty, could legislate only for its territory; but that limitation, if it existed, did not alter the meaning of the words. It is not a sufficient reason for reading down the meaning of these words that there are other provisions of the Constitution, eg s 51(xxx), which expressly confer power to legislate with extra-territorial effect or which, eg s 51(x), may place a particular limitation in favour of the States on the power to legislate extra-territorially.

The express power of the Australian Crown to make laws with respect to places outside, or matters or things done outside the boundaries of the Commonwealth, is no more fettered by notions of extra-territoriality than is the power possessed by the British Crown. That power attached to the British Crown by virtue of the pre-eminence and excellence which it claimed and which, even though there be limitations imposed by the common law itself as well as by statute on its exercise by the Crown in Council, is wholly without limit when exercised by the Crown in Parliament. Hence sprang the sovereignty of the British Parliament at Westminster and it followed that no statute of that Parliament could be held invalid on any ground whatsoever, even if it invaded the rights of the Crown or of the subject under the common law, even if it operated extra-territorially and even if it violated international law.

Clearly the Crown in the Australian Executive Council and in the Australian Parliament has one bound which the British Parliament has not, for it cannot transgress the Constitution. But subject to that Constitution it in Council and in Parliament has that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament. Exactly when it attained those qualities is a matter of the constitutional history of the British Commonwealth of Nations largely reflected in the Imperial conferences following the Great War. Legal recognition came through the Statute of Westminster 1931 and its later adoption by Australia. Now the Constitution is the only limitation. There is no gap in the constitutional framework. Every power, right and authority of the British Crown is vested in and exercisable by the Crown in Australia subject only to the Constitution. The State legislatures do not have that sovereignty which the British legislature and now the Australian legislature possess. A State can only legislate in respect of persons, acts, matters and things which have a relevant territorial connexion with the State, a connexion not too remote to entitle the law to the description of a law for the peace welfare and good government of the State: see Johnson v Commissioner of Stamp Duties [1956] 1 All ER 502 ; [1956] AC 331 at 351-3, 355. The words of s 51 of the Constitution do not import any similar territorial limitation and there now is none in the case of the Australian legislature. The words "external affairs" can now be given an operation unaffected by any concept of territorial limitation. The result is that the Commonwealth, outside the boundaries of the States and subject to any particular constitutional injunctions, may make laws on all subject matters in exercise of its sovereignty.

I would dismiss all actions.