New South Wales and Others v Commonwealth

135 CLR 337

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(Judgment by: Murphy J)

New South Wales and Others
vCommonwealth

Court:

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

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Judgment by:
Murphy J

The six States have brought separate suits against Australia, claiming a declaration that the Seas and Submerged Lands Act 1973 is invalid. They have claimed in particular, or as an alternative, a declaration that certain sections are invalid either absolutely or in relation to certain areas or waters.

The Seas and Submerged Lands Act

It is "An Act Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to Sovereign Rights in respect of the Continental Shelf and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from the Continental Shelf." Although this long title refers to the recovery of minerals other than petroleum, any operative provisions dealing with this subject were deleted from the legislation.

The preamble recites that a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over that sea and its bed and subsoil are within the sovereignty of Australia; 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"; and that Australia is a party to two conventions (copies of which are set out in the Schedule), the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental Shelf.

In Part I--Preliminary, "continental shelf" is given the same meaning as in the Convention on the Continental Shelf, unless the contrary intention appears. Section 3(2) states that references to the territorial sea are to it "so far as it extends from time to time". Section 3(3) provides similarly for the continental shelf. Sections 6 and 7 follow:--

6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth.

7.(1) The Governor-General may, from time to time, by Proclamation, declare, not inconsistently with Section II of Part I of the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea.

(2) For the purposes of such a Proclamation, the Governor-General may, in particular, determine either or both of the following:--

(a)

the breadth of the territorial sea;

(b)

the baseline from which the breadth of the territorial sea, or of any part of the territorial sea, is to be measured.

Section 8 empowers the Governor-General to declare historic bays and waters and define their sea-ward limits.

It is "declared and enacted" by s 10 "... that sovereignty in respect of internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of 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" and by s 11 "... that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purposes of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth."

Section 12 enables the Governor-General to declare (not inconsistently with the Convention on the Continental Shelf or any relevant agreement to which Australia is a party) the limits of the whole or any part of the continental shelf of Australia.

Division 3 (Savings) provides that nothing in Part II affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and were on January 1901 within the limits of a State and remain so or in respect of the airspace over, or of the sea-bed or subsoil beneath, any such waters.

Section 15 provides that nothing in Part II shall be taken to vest in the Crown in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works; and s 16 provides that Part II is not to limit or exclude other laws of the Commonwealth or a Territory, or (except so far as it was expressed) to vest or make any sovereignty or sovereign rights otherwise than as provided in Part II of any State law.

The International Law of the Sea

In international law, the rights in regard to territorial sea, sea-bed, subsoil, continental shelf and contiguous zone which are disputed in this case, are clearly the attributes of an international personality (see H Lauterpacht, "Sovereignty over Submarine Areas", British Year Book of International Law p 376, London 1950). Whatever their nature, whatever their limits may be or may be altered to, they remain attributes of that personality. In this case, it is clear that the relevant international personality is Australia. It is "the State" for international purposes. The six States of Australia have no standing under international law and are not recognized by it. In international law, they simply do not exist.

During the last three decades, the international law of the sea has evolved rapidly, (see New Directions in the Law of the Sea Vols 1-111 by Lay, Churchill and others, British Institute of International and Comparative Law 1973). This has resulted from the large number of new States, the abandoning of outdated concepts and the emergence of concepts new to international law, such as the continental shelf, the exclusive economic zones beyond the territorial sea, and the 200 mile patrimonial sea (see The Declaration of Santo Domingo Conference (1972), and the General Report of the African States Regional Seminar , Yaounde (1972). New coastal States have challenged the traditional concepts of freedom of the seas. As a result, there has been a rapid change from an almost universal acceptance of a three mile territorial sea to a general acceptance of a greater width. Many States claim 12 miles and a few claim greater widths.

Although the act of delimitation of sea areas "is necessarily a unilateral act", "the validity of the delineation with regard to other States depends upon international law", Anglo-Norwegian Fisheries Case (1951) ICJR 116 at 125 and 132. And, once the low water mark is passed, the international domain is reached ( United States v California (1947) 332 US 19R v Keyn (1876) 2 Ex D 63). The extent of territorial waters may be declared within the limits accepted by international law. The various limits declared appear in the National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, the Continental Shelf, the High Seas and to Fishing and Conservation of the Living Resources of the Sea , United Nations Legislative Series ST/Leg/Ser B/15, New York 1970 and National Legislation and Treaties Relating to the Law of the Sea , United Nations Legislative Series ST/Leg/Ser B/16, New York 1974.

The legal doctrine of the continental shelf was not mooted until 1945 (see Abu Dhabi Case (1951) 1 ICLQ (1952) 247 at 253-60), although the expression "continental shelf" was first used by a geographer in 1898. It is that part of the continental mass temporarily (measured in geological time) overlapped by the oceans. The first important formulation of it as a legal concept was in the Truman Proclamation of 28 September 1945 (see C H M Waldock The Legal Claims to the Continental Shelf Vol 36, p 115, Problems of Public and Private International Law , The Grotius Society, London 1950).

Advancing technology has revealed new uses of the sea and caused greater activity in already established uses. This, together with the challenges of the new States, has made the existing rules of the Law of the Sea either obsolete or inadequate and a restatement of the Law of the Sea necessary. The views of older writers and authorities stressed in argument in this case are now largely irrelevant. Recent writers have referred to "the disintegration" of this body of the law (see G Yates and J Young, Limits to National Jurisdiction over the Sea , Uni Press of Virginia 1974).

The most dominant trend is the claim of States for larger and larger areas of the sea in order to exercise exclusive national jurisdiction for a greater number of purposes. Competing with this is the claim for collective international exploitation of the marine and submarine resources.

The developing law of the sea has involved an enormous range of subjects which have formed part of intense international discussion and disputation at continuing United Nations Conferences on the Law of the Sea. These subjects include the proposed international regime for the ocean floor, exclusive fishing zones, conservation zones, innocent passage and other rights to transit, scientific research, control of pollution, zones of peace and security, slavery, terrorism and drug trafficking on the seas. International agreements have been reached on many of these and provide in some cases for observation and enforcement of international rules of the sea.

The areas of general agreement on the subjects of ownership of territorial seas, rights to the sea-bed and subsoil under these seas, and to the continental shelves and contiguous zones are reflected in the two important conventions held in 1958 on the Territorial Sea and the Contiguous Zone, and on the Continental Shelf, which are referred to in the Act.

The States contended that the Act was not authorized by any legislative power. I will deal with this contention under the headings "External Affairs" and "Other Powers" in s 51.

External Affairs

An exhaustive definition of external affairs is not necessary for this case and is perhaps not possible. External affairs extend over a whole range of economic, social and political subjects of international concern, some of which were probably not conceivable at the time of federation; they are generally, but not necessarily, of international concern and include but are not limited to the subject matters of treaties and conventions to which Australia is a party, and to the affairs of international bodies (such as the United Nations Organization) of which Australia is a member.

External affairs may also be internal affairs; they are not mutually exclusive. For example, control of traffic in drugs of dependence, diplomatic immunity, preservation of endangered species and preservation of human rights may be external affairs as well as internal.

External affairs are conducted under the executive power contained in s 61 of the Constitution. Discussion and negotiation of treaties and other arrangements on a wide range of subjects is the daily business of the Australian Government, generally through the Department of Foreign Affairs, but increasingly through other departments of State as Australia's internal affairs become more and more involved with those of other countries. This reflects the impracticability of dealing with many aspects of Australia's internal affairs, for example, minerals and energy, primary industry, environment and general management of the economy, other than in the context of international arrangements.

The Parliament has power, subject to the Constitution, to make laws with respect to "external affairs". The power authorizes, but is not limited to, the making of laws for implementation of treaties or conventions to which Australia is a party. From these, benefits flow to Australia either directly or as part of the community of nations. Under these, Australia has often assumed obligations which can only be implemented by legislation. The practical experience of our Constitution is that this can only be done effectively by the national Parliament.

When legislation based on the external affairs power is considered, the presumption of validity should be applied as with other enactments. The use of the external affairs power may be novel, but this is no excuse for adopting a narrow, cautious or suspicious approach to Acts which are said to be supported on that power. The Constitution, particularly s 51(xxix), is intended to enable Australia to carry out its functions as an international person, fulfilling its international obligations and acting effectively as a member of the community of nations. If not, Australia would be an international cripple unable to participate fully in the emerging world order.

The Act deals directly with aspects of external affairs and is particularly directed towards the carrying out of the provisions of the two conventions. It was suggested that the Act departs from the conventions. If it does, it is still on subjects of external affairs. If there were no such conventions, an Act in substance the same as this would still be a law with respect to external affairs.

The Seas and Submerged Lands Act is thus within the scope of the legislative power conferred on the Parliament by s 51(xxix) to make laws with respect to external affairs.

Other Powers in s 51

The Act may also be supported in various aspects by a number of other powers in s 51, such as trade and commerce with other countries in (i) defence in (vi) and measures in (xv) and matters incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth in (xxxix).

Other Contentions of the States

Apart from contending that the legislation was not authorized by any legislative power, the States also contended that, immediately before federation in 1901:--

(i)

each of the former colonies possessed its own territorial sea,

(ii)

the territorial sea was included in its territorial limits,

(iii)

the jurisdiction of the legislature was the same over the territorial sea as over the mainland,

(iv)

the Crown in right of the colony owned the sea-bed and subsoil of the territorial sea, just as it owned the land, where not otherwise appropriate.

They argued that, on federation, the colonies brought with them their land and maritime territory. The territorial limits of the Commonwealth, like those of the colonies, included the territorial sea. The Commonwealth Executive, Legislature and Judiciary possessed the same powers in respect of the maritime territory as in respect of the land territory.

For these propositions, the States relied on Robtelmes v Brenan (1906) 4 CLR 395 ; 13 ALR 168 Merchant Shipping Guild of Australasia v Archibald Currie Pty Ltd (1908) 5 CLR 737 ; 14 ALR 438Merchant Service Guild of Australasia v Commonwealth Steamship Owners Assoc (1913) 16 CLR 664 ; 19 ALR 450Kingston v Gadd (1901) 27 VLR 417Peninsular & Oriental Steam Navigation Co v Kingston [1903] AC 471Commissioner of Taxation v Cam & Sons (1936) 36 SR (NSW) 544D v Commissioner of Taxes [1941] St R Qd 218 and William Holyman & Sons v Eyles [1947] Tas SR 11. Similar arguments were advanced in regard to the continental shelf.

Essentially, their claims are based on continuation of rights they had as colonies, together with rights which they would have had under the developing doctrines of the law of the sea.

I accept the arguments of the States that, before federation, the six colonies, in their progression towards full self-government and independence, had exercised some jurisdiction over the adjacent sea, the sea-bed and its subsoil (in oyster and pearl fisheries and submarine mining). They were becoming involved in international agreements (for example, the International Postal Union and the Convention on Submarine Cables).

If federation had not occurred, this progression would no doubt have continued. There might now be six international personalities, each with a territorial sea (not necessarily of the same width) and each claiming territorial rights over the sea-bed and the continental shelf.

However, this progression towards independence and international personality ceased on federation. Each of the colonies disappeared, their peoples united in a new political entity, "an indissoluble federal Commonwealth", (Commonwealth of Australia Constitution Act). The territorial sea was attached to the entity as the attribute of an international personality along with any potential attributes, such as continental shelves or zones. Even if they had become independent nations before 1901 with the sovereign rights of an international state, on federation they would have lost the territorial seas and other attributes of international personality.

Similar issues were raised and decided between the Provinces and the Government of Canada ( Reference re Ownership of Off-Shore Mineral Rights (1968) 65 DLR (2d) 253) and between the States and the Government of the United States of America ( United States v Texas (1950) 399 US 707United States v Louisiana (1950) 339 US 699United States v California , supraUnited States v Maine (1975) 43 LW 4359. The contentions of both the Provinces and the States were rejected in favour of the Federal Governments.

Contentions similar to those of the plaintiffs, and the English history of the law of the sea (including the consideration of R v Keyn , supra were dealt with carefully by the Honorable Albert B Maris in the United States Supreme Court Special Master's Report, which was adopted by that court in United States v Maine , supra. This report showed that the contentions of the States of the United States were groundless, and its reasoning is applicable here. In Australia, similar conclusions have been reached by individual judges (see Bonser v La Macchia (1969) 122 CLR 177 ; [1969] ALR 741, and R v Bull (1974) 3 ALR 171 ; 48 ALJR 232).

The States have no international personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other international persons and no right to deal with other countries, through agents or otherwise. Their claims to international personality or to sovereignty are groundless (see Bonser v La Macchia , supra).

The area of the territorial sea is tens of thousands of square kilometres. The area of the disputed submarine lands and sub-soil is millions of square kilometres. Their resources are probably worth thousands of billions of dollars. They belong to the nation not to the States. The rights over them are vested in and exercisable by the Government of Australia on behalf of all the people of Australia.

The Seas and Submerged Lands Act 1973 is valid. The suits should be dismissed.