Bonser v La Macchia

[1969] HCA 31

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Menzies, Windeyer and Owen JJ.

BONSER v. LA MACCHIA

(1969) 122 CLR 177

6 August 1969

Constitutional Law (Cth)—Constitutional Law—Constitutional Law (N.S.W.)

Constitutional Law (Cth)—Fisheries—"Australian waters"—"Beyond territorial limits"—Proclamation of Governor-General—Validity—The Constitution (63 &64 Vict. c. 12), s. 51 (x.)—Fisheries Act 1952-1966 (Cth), ss. 4*, 7**, 8***. Constitutional Law—Seaward boundaries—Of colonies—Of States—Of Commonwealth—Commonwealth as nation—Rights over continental shelf—Rights in respect of Australian waters. Constitutional Law (N.S.W.)—Seaward boundaries of State—Legislative power over contiguous sea—Territorial waters—States as nations—Extra-territorial legislative power.

Decisions

1969, August 6.
The following written judgments were delivered : -
BARWICK C.J. The defendant was observed to be using in the sea some six and one-half nautical miles east of Barrenjoey Lighthouse on the coast of New South Wales a trawl-net of a mesh smaller than a then current notice given under s. 8 of the Fisheries Act 1952-1966 (Cth) (the Act) would permit. The sea at that point is within the area of waters as proclaimed pursuant to s. 7 of the Act which provides:

"7. The Governor-General may, by Proclamation, declare any Australian waters to be proclaimed waters for the purposes of this Act." (at p181)

2. Section 8 (1) (c) is in the following terms :

"8. (1) The Minister may, by notice published in the Gazette - (c) prohibit the taking, from proclaimed waters or from an area of proclaimed waters, of fish, or fish included in a class of fish specified in the notice, by a method or equipment specified in the notice." (at p181)

3. Section 13 (1) of the Act makes it an offence to do an act prohibited by a notice for the time being in force under s. 8 of the Act. The defendant was prosecuted in a court of summary jurisdiction in New South Wales for doing a prohibited act, namely, using a net of too small dimensions "in waters beyond territorial limits". (at p181)

4. This prosecution was removed into this Court pursuant to s. 40 of the Judiciary Act 1903-1966 (Cth) upon the motion of the Attorney-General of the Commonwealth on the ground that the interpretation of the Constitution was involved therein. (at p181)

5. The defendant admits having done the acts charged at the place in the part of the sea described in the complaint. However, he submits that no offence was committed because:

(1) The constitutional power of the Commonwealth with respect to fisheries is limited to fisheries in waters within three nautical miles of the Australian coast. (2) That, if contrary to that submission, the power extends to waters beyond three nautical miles of the coast, "Australian waters" as mentioned in the Constitution do not extend as far seaward from the coast as the outer limits of the area of water proclaimed by the Governor-General in purported exercise of his power under s. 7 of the Act: and that the proclamation being inseverable is for that reason wholly void as unauthorized by the Act. (3) That in any case, the constitutional power with respect to fisheries does not extend to the activity of fishing. (at p181)

6. The notice under s. 8 in turn depends for its validity upon the existence of a valid proclamation under s. 7: but there is no independent challenge to the validity of the notice. (at p181)

7. The relevant constitutional power upon which the Act must be supported and by reference to which, through the Act because of its form, the proclamation of Australian waters for the purposes of the Act must be justified is s. 51 (x.) of the Constitution which gives to the Parliament power to make laws "with respect to: - (x.) Fisheries in Australian waters beyond territorial limits". (at p182)

8. The Attorney-General, who appeared for the complainant, submitted that the constitutional power was not so limited as suggested by the defendant but extended to fisheries in all those waters that might fairly be regarded as associated with Australia in its commerce including its commercial fishing, actual or potential, or in its defence. He submitted that on this footing those waters at least included the waters proclaimed by the Govenor-General. As the place where the offence was committed was beyond three nautical miles of the coast and within the outer limits of the area of proclaimed waters, the Attorney-General submitted that it was unnecessary in order to dispose of the case to decide the inner limit of the waters referred to in the constitutional power or of those declared waters. The Attorney-General did not desire to argue the question as to the meaning of the expression "beyond territorial limits" as used in the Constitution or as used in the Act or of the expression "waters that are within the territorial limits of a State or a Territory of the Commonwealth" - the latter being the waters excepted from the area of the proclaimed waters. Accordingly he asked the Court not to decide where those inner limits were, nor where constitutionally they could be set. In this attitude he was supported by the Solicitor-General of the State of New South Wales who sought leave to intervene in the proceedings merely to agree with the submission of the Attorney-General that it was unnecessary in this case to determine the inner boundary of the Australian waters to which the constitutional power extended or the actual inner limits fixed by the proclamation. He joined in the request that that matter should not be decided. The Court however during the argument of the appeal made it plain that this attitude of the governments concerned would not necessarily preclude the Court from deciding the question. (at p182)

9. Australian waters are defined in s. 4 of the Act to mean:

"(a) Australian waters beyond territorial limits; (b) the waters adjacent to a Territory and within territorial limits; and (c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits." (at p182)

10. The proclamation of the Governor-General made and amended pursuant to s. 7 of the Act declares "the Australian waters specified in the Schedule . . . to be proclaimed waters for the purposes of" the Act. The schedule to the proclamation commences with the words "All those waters, other than waters that are within the territorial limits of a State or a Territory of the Commonwealth, contained within the area bounded . . ." and then follows a description of an area by metes and bearings which was translated for the purpose of the argument to lines upon a map of Australia and the adjacent seas. The inner limits of the area are on the seashore. The seaward limits of the proclaimed area are at varying distances from the Australian coast, but generally speaking about 200 miles from the east, west and south coasts, treating Tasmania for this purpose as part of the south coast of Australia. To the east, the lines run north around the eastern part of the island of New Guinea passing between New Britain and the Solomons to a point north of the boundary between Papua-New Guinea and West Irian. In the north-west and north of Australia it runs through the Timor Sea to a point north of the Gove Peninsula. (at p183)

11. The notice gazetted by the Minister pursuant to s. 8 of the Act prohibits, amongst other things, "the taking from the area of proclaimed waters specified in the Second Schedule to this Notice of fish, other than prawns, by a seine trawl-net" having a mesh of less dimension than that set out in the notice. The second schedule describes the waters with respect to which the prohibition is to operate as "All that area of proclaimed waters, being the waters, other than waters that are within the territorial limits of a State or Territory of the Commonwealth, contained within the area bounded" and then follows a description of an area by metes and bearings. This area is confined substantially to the coast of New South Wales but extends as far seaward as the area of the proclaimed waters in that vicinity. The parenthesis "being etc." is descriptive it seems of the proclaimed waters and not of the waters to which the notice relates. The defendant's activity of which complaint is made was actually within the area covered by the notice and thus also within the area of proclaimed waters. (at p183)

12. I have carefully considered the request of the Commonwealth and of the State of New South Wales made through their respective law officers that the Court should not decide the inner limits of the Australian waters which fall within the ambit of the constitutional power. But after much consideration I have concluded that I cannot really dispose of the matter without doing so. For one thing, the respondent's submissions must be dealt with and they essentially involve the determination of that inner limit. Also, the decision of the meaning of "Australian waters" as defined in the Act involves, in my opinion, a decision both on the constitutional use and the statutory use of the expression "beyond territorial limits". I think the first question in considering the total expression "Australian waters beyond territorial limits" is to determine to which territorial limits the reference is made. Are they the territorial limits of the Commonwealth or the territorial limits of the States or are they the Imperial territorial limits? The only indication which the total expression seems to give is that there are Australian waters within those limits, for it is only fisheries in some Australian waters, namely those beyond these limits, which may be the subject of a law made under s. 51 (x.). (at p184)

13. I therefore turn first to that question. It is important, in my opinion, to the understanding of the meaning and extent of the constitutional power that the limits of the territory over which the government of a British colony was given authority by the Imperial Government should be recognized. A number of considerations including the extent of the realm and the jurisdiction of the Admiral are important in reaching any conclusion on that matter. (at p184)

14. I cannot read the majority decision in Reg. v. Keyn (The Franconia) (1876) 2 Ex D 63 , in any other sense than that at common law the realm ended at the edge of the sea and that it did not extend to the bed of the sea, i.e., to any portion of the earth's crust adjacent to the realm covered at low tide nor did it extend to the waters which washed the shores. These constituted the high seas and events taking place upon them fell within the jurisdiction of the Admiral, whose jurisdiction in general was not exercisable in 1788 within the realm except in the main streams of great rivers below the bridges: 13 Ric. 2, Stat. 1 c. 5; 15 Ric. 2 c. 3. See also the Offences at Sea Act, 1536 (28 Hen. 8 c. 15, ss. 1 and 2). Later it was extended by the Admiralty Court Act, 1840 (3 &4 Vict. c. 65), to certain events taking place within the countries. Thus it would be seen that the territorial limit of the realm was the low water mark. Legislative authority exercised in respect of events beyond that mark is on that footing and, in my opinion, properly regarded in a precise sense as "extra territorial". However, accretion to the bed of the sea beneath territorial waters creating land above tidal limits has been held to be vested in the Crown. A basis for this conclusion is said to be the ownership by the Crown of the bed of the sea subjacent to such land : and expressions are used in the cases to which I later refer which treat the entire bed of the sea within three nautical miles as vested in the Crown. (at p184)

15. But whatever the correct view as to the dominion of the bed of the sea under territorial waters, the question remains whether that area, whether of water or subjacent land, was vested in a colony as part of the territory of the colony. (at p185)

16. I think it is essential to bear in mind that when colonies were formed all that relevantly occurred was that a specified land mass was placed at the outset under governorship, and later, under the control of a legislature. The instruments setting up the colonies did not in terms include as territory and subject to colonial governorship any part of the bed of the sea or the superincumbent waters. The progression was from the condition of governorship with near absolute powers to a state of self-government with plenary powers to make laws for the peace, order and good government of that land mass. This was the utmost to which the colonies ever attained. The colonies were never at any stage international personae nor sovereign and the States still are not. Thus any concession or convention made between nations as to the use which might be made of the bed of the sea or of the waters above it applied and still applies, in my opinion, only as between nations and, in the case of conventions, as between nations parties to the convention. The plenary nature of the legislative power granted over and with respect to described territory cannot, in my opinion, be a basis for regarding that territory as itself extended to those places in which laws made under such a power may validly have effect. Apart from legislation or prerogative or statutory instrument of the United Kingdom, any seeming accession to the realm or to jurisdiction over the sea by reason of international arrangements accrued, in my opinion, only to Great Britain and not to her colonies or her dominions or their territories in their own right. (at p185)

17. I respectfully agree with the conclusion drawn in connexion with the seabed and the waters above it adjacent to the Province of British Columbia by the Supreme Court of Canada in Reference re Ownership of Off-Shore Mineral Rights (1967) 65 DLR (2d) 353, at pp 365, 366, 367 , and with the reasons which were given for that conclusion. It is quite clear historically, if one examines the description of the territory placed under governorship, that the territory of the original colony of New South Wales except as to certain islands of the Pacific did not extend beyond low-water mark on the eastern coastline of the continent and of the island of Tasmania : and that as each of the colonies of Victoria and Queensland were severed from it, the territory of those colonies by description also ended at low-water mark. The same can be said of the other Australian colonies. Thus the reasons given in the Canadian case are applicable to the circumstances of those colonies. (at p185)

18. It has recently been decided by the International Court of Justice in the North Sea Continental Shelf Cases (1969) ICJ Reports 4 that apart from international comity or convention the continental shelf viewed as an extension of the land mass of the coastal nation state appertains in the very nature of things to that national state. In giving judgment in a case involving the principles of demarcation of a continental shelf as between two coastal national states, the Court said this in relation to the assertion by one of the parties of a doctrine of a just and equitable share as a means of such delimitation :

"19. More important is the fact that the doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in art. 2 of the 1958 Geneva Convention, though quite independent of it, - namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is 'exclusive' in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent."

This may prove a sounder basis for the claim to the bed of the sea than the attempt made in the cases to which I later refer which relate the ownership of the bed to considerations which would support a claim to jurisdiction over the territorial waters. But, even if one accepts the view of the International Court of Justice and concludes that the extension beneath the sea of the land mass always appertained to the Imperial Crown, the territory of a British colony is not alienated from the Crown by the mere creation of a government for that territory. The colonial government's largest claim could only be to make laws for the peace, order and good government of the actual territory assigned by British authority as the territory of the colony. As I have said, it seems to me clear that in the case of the Australian colonies the territories were bounded by low-water mark on the respective coasts. Thus, accepting for present purposes this decision of the International Court, internationally the continental shelf naturally appertains to a nation as an international person. It is, therefore, on the footing of this decision, to the Crown in right of the United Kingdom that the natural rights over the seabed surrounding Australia originally belonged. These rights were never made available to any of the Australian colonies. But, if contrary to that decision of the International Court, the continental shelf did not of its very nature belong to what was the national state at the time of the creation of the colonies, and the rights to it now depend on convention, it is the Commonwealth which is the party to the appropriate convention. (at p187)

Following Reg. v. Keyn(1876) 2 Ex D 63 the Territorial Waters Jurisdiction Act, 1878 (Imp.) (41 &42 Vict. c. 73) was passed. It declared a jurisdiction in the Crown over the open sea to such a distance as is necessary for the "defence and security" of the realm. But its operative part was confined to conferring a jurisdiction upon the Admiral with respect to offences committed by aliens as well as subjects within what were described as "the territorial waters of Her Majesty's dominions" and defined as "any part of the open sea within one marine league of the coast" of the United Kingdom or the coast of some part of Her Majesty's dominions "measured from low-water mark". International comity then conceded a territorial sea, though its width may not have been firmly settled. Further, the bed of the sea for some undefined distance from the shore according to some authorities came to be regarded as vested in the Crown, so that accretion bringing into existence land above the tidal level within the territorial waters was regarded as vested in the Crown : see Fitzhardinge (Lord) v. Purcell (1908) 2 Ch 139; Lord Advocate v. Clyde Navigation Trustees(1891) 19 Rett 174; Lord Advocate v. Wemyss(1900) AC 48; Secretary of State for India v. Chelikani Rama Rao (1916) 85 LJPC 222, is an instance of the application of those cases. It should be noted, however, that according to those cases, it was the Imperial Crown in whom the "ownership" vested. (at p187)

20. But the terms of the Territorial Waters Jurisdiction Act, in my opinion, suggest that the Parliament of the United Kingdom was intending in passing it to take advantage of international comity, rather than to assert and implement a territorial claim to the bed of the sea. The "sovereignty" of the United Kingdom over such waters was that which might internationally be recognized. In 1878, the year of the passing of the Territorial Waters Jurisdiction Act, the international situation rested on comity but now it is to be found expressed in the Convention on the Territorial Sea and the Contiguous Zone signed at Geneva on 29th April 1958 (Australian Treaty Series, 1963, No. 12, p. 3). But, if contrary to my own impression, the Territorial Waters Jurisdiction Act was based upon a claim to territorial ownership of the seabed below the territorial waters the claim was one made by and for the benefit of the Imperial Crown. (at p188)

21. By reason of the Colonial Courts of Admiralty Act, 1890 (Imp.) (53 &54 Vict. c. 27), the Colonial Courts of Admiralty could exercise the jurisdiction of the Admiral not limited to the waters contiguous to the colony which created the court thus vested with Admiralty jurisdiction but generally : see Union Steamship Co. (N.Z.) Ltd. v. Ferguson (1969) 119 CLR 191 . Further, the jurisdiction thus exercised by the Colonial Courts of Admiralty was not in any sense a jurisdiction derived from or in any wise appurtenant to the colony. By s. 2 (4) of the Colonial Courts of Admiralty Act, any jurisdiction exercised in relation to "matters arising outside the body of a county or other like part of a British possession" was declared to be derived exclusively from the Colonial Courts of Admiralty Act, that is to say, it was necessarily the jurisdiction of the Admiral. Further, the limitation of jurisdiction to that of the Admiral in the proviso to s. 3 of that Act is significant. So far as offences were concerned s. 7 of the Territorial Waters Jurisdiction Act defined "offence" as used in that Act as "an act, neglect, or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force". The territorial waters described were thus the territorial waters of the Imperial Crown and quite clearly, in my opinion, not territorial waters of non-independent and non-sovereign colonies of the Crown. Jurisdiction in and over them was never transferred or vested in the colonial governments. Indeed, as I have indicated, the Colonial Courts of Admiralty Act emphasized that it was not. It does not seem to me that the grant of autonomy in the government of the colony to its residents in any wise altered this situation. The rights in the territorial waters were those of the Imperial Crown and the jurisdiction exercised in respect of those waters as such and by whomsoever exercised was the jurisdiction of the Admiral. (at p188)

22. 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 : Croft v. Dunphy (1933) AC 156 and Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) (1937) 56 CLR 337 In my opinion such laws could not be justified as to their operation in the area of the territorial sea merely by the fact that they so operated, that is to say, by treating that area of sea as if it were part of the territory of the colony. In any case any crucial jurisdiction exercised in respect of matters occurring beyond the land margin was that of the Admiral (Colonial Courts of Admiralty Act, s. 3 (4)). Nothing in the Colonial Boundaries Act, 1895(Imp.) (58 &59 Vict. c. 34) made any change in this situation. That Act, so far as relevant, merely confirmed the colonial boundaries whatever they were, as they existed at that time. (at p189)

23. In my opinion, therefore, the territorial limits of an Australian colony at federation did not include any part of the territorial sea or the seabed subjacent to it. Federation did not increase those territorial limits so that since federation the territorial limits of a State are to be found at the low-water mark on its coasts. (at p189)

24. The passing of the Commonwealth of Australia Constitution Act (63 &64 Vict. c. 12) by the British Parliament in 1900 did not make Australia either a nation internationally or independent, though clearly it was a major step towards each. At some point at or since the passage of the Statute of Westminster (Imp.) in 1931 implementing the Balfour Declaration, Australia did become an independent nation state. Though it is difficult to pinpoint precisely the time at which this occurred, it is certain that Australia was such a nation state at the time of the making of the Convention on the Territorial Sea and the Contiguous Zone. (at p189)

25. I find no need here to discuss the effect of Australia becoming a party to the Convention on the Territorial Sea and the Contiguous Zone or to the Convention on the Continental Shelf (Australian Treaty Series, 1963, No. 12,p. 24). I notice in passing the terms of the definition of "the declared fishing zone" in s. 4 of the Act as amended in 1967 seem to indicate that the draftsman has supposed that there are now Australian territorial waters fixing, internationally, Australian territorial limits. Undoubtedly these conventions now enure for Australia's benefit. The question of when and how the interest of Great Britian in such waters and in the continental shelf, if the full implications of the decision of the International Court of Justice be accepted, ceased need not be pursued. Nor is it necessary for me to consider the extent of the legislative power of the Commonwealth, if any, derived from the "sovereignty" over the territorial sea which the Convention recognizes ; nor the extent of the legislation which the Commonwealth could pass in relation to the territorial sea by reason of its external affairs power : see s. 51 (xxix.) of the Constitution. Whatever laws it could validly pass would, of course, be paramount by virtue of s. 109 of the Constitution over any inconsistent State law passed for the peace, order and good government of the State. (at p190)

26. It is noticeable that in s. 51 (x.) the expression is not "beyond the territorial limits of the States", or "beyond the territorial limits of the Commonwealth" : but simply "beyond territorial limits". If the expression in s. 51 (x.) were construed as referring either to the territorial limits of a State or to the territorial limits of the Commonwealth as they were in 1900, I should feel bound to hold that the legislative power of the Commonwealth under s. 51 (x.) extends to fisheries within territorial waters as well as to fisheries within the high seas beyond them, unless some inaccurate meaning is given to the expression "territorial limits of the State", or "of the Commonwealth" because of a then current misconception. This course, as will appear, I am prepared to follow in relation to the terms of the proclamation. But, in my opinion, the expression "beyond territorial limits" should not be so construed : there is no need to place an imprecise meaning on the words of the constitutional provisions. If, as I think, the "sovereignty" over the territorial waters recognized by international comity was that of the Imperial Crown, it would be natural enough to refer to the territorial waters as within the territorial sovereignty of Her Majesty, as the Parliament of the United Kingdom did in the Territorial Waters Jurisdiction Act : see definition of "the territorial waters of Her Majesty's dominions" in s. 7 of the Act. (at p190)

27. It would therefore, in my opinion, have seemed to be an acceptable denotation of the territorial limits of Her Majesty's Imperial dominions to include the territorial waters of the sea adjacent to any part of Her Majesty's dominions ; and to refer to the external limits of those waters as "the territorial limits", i.e., of the Imperial dominion. In my opinion, this is the construction to be given to the expression "the territorial limits" in s. 51 (x.). It is a reference to the territorial limits of Her Majesty's dominion ; that is to say, a reference to the Imperial territorial limits. "Beyond territorial limits" within the meaning of s. 51 (x.) is, in my opinion, an area of the open sea which is not "within one marine league of the coast measured from low water mark". (at p191)

28. I think there are two other reasons why the "territorial limits" referred to in the paragraph of the Constitution cannot be construed as the territorial limits of the States or as the territorial limits of the Commonwealth. In the first place it is apparent from the terms in which the constitutional power is expressed that it is not intended to comprehend all Australian waters within its ambit ; but only those Australian waters beyond some specific point. To fix that point at the seashore by taking the expression "territorial limits" to be referring to the territorial limits of the States or of the Commonwealth as they existed or would exist at the time of the creation of the Constitution, would require that the inland waters of the continent, including those of Tasmania, be regarded as Australian waters. Whilst I do not think this is an impossible view, I think it an unlikely view. The enclosed waters of the coast and the inland rivers are, in my opinion, more properly regarded in a federal Constitution, particularly where the residue of legislative power is retained in the constituent States, as waters of the respective States. In my opinion, Australian waters are the waters of the open sea which wash the shores of the Australian continent and Tasmania and thus exclude waters of a kind which in England would have been regarded as within the body of a county. Therefore some point or line other than the seashore must be selected to divide that part of Australian waters which is within the description of the section and that part which is not. As I have indicated I think that line is the actual margin of what was the Imperial territorial sea. (at p191)

29. The second reason is that looking at antecedent legislation affecting the Australian colonies it is apparent to my mind that there existed a widely held view that in some unspecified manner, the colonies had each acquired a territorial sea of their own over which they exercised the sovereignty which by international comity was recognized in coastal nation states. In s. 15 of the Federal Council of Australasia Act, 1885 (Imp.), the Federal Council of Australasia was given legislative authority with respect to, amongst other things :

"(c) Fisheries in Australasian waters beyond territorial limits : (f) The enforcement of criminal process beyond the limits of the colony in which it is issued, . . . (g) The custody of offenders on board ships belonging to Her Majesty's Colonial Governments beyond territorial limits."

I do not think much can be taken from the difference in expression between pars. (c) and (g) on the one hand and of (f) on the other. The Federal Council in 1888 passed The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act. In the recitals reference is made to the "territorial waters" of Queensland and to fisheries within the "territorial jurisdiction of Queensland" - a reference which having regard to the subject matter cannot be a reference to inland waters. "Australasian waters adjacent to Queensland" are defined as "All Australasian waters within the limits" of a schedule - to which I shall later have cause to refer - "exclusive of waters within the territorial jurisdiction of the Colony of Queensland". (at p192)

30. In 1889 the Federal Council passed The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act. Again, in the recitals, reference is made to "the territorial waters of that Colony" and to vessels which are employed in pearl shell fishing both within and beyond the territorial jurisdiction of Western Australia. "Australasian waters adjacent to Western Australia" are defined as "All Australasian waters within the limits" of a schedule to which I shall later refer "exclusive of waters within the territorial jurisdiction of the Colony of Western Australia". The idea that the colonies had territorial waters specifically under their authority as such, as distinct from a plenary legislative power to make laws for the peace, order and good government of the colony which would authorize some legislation to operate in and over the adjacent high seas, was for the reasons I have indicated, a misconception. Indeed, this misconception has persisted in the Act itself for the draftsman seems to have thought that a territory of the Commonwealth has a territorial sea of its own so that the territorial limit of the territory may be regarded as extending to three nautical miles offshore. This it seems to me cannot be so, even if as I think due to various events the Commonwealth itself now has sovereignty over the territorial seas internationally recognized. (at p192)

31. Accordingly, in my opinion, the constitutional power does not extend to fisheries within three nautical miles of the seashore. The Act itself repeats the constitutional formula and thus raises no problem derived from any possible deviation of the statutory description from the terms of the constitutional power. The Act therefore is itself clearly valid though it merely shifts the problem to the terms of the proclamation. (at p192)

32. I ought, I think, to add that the exclusion of the first three nautical miles of coastal water from the Commonwealth legislative power with respect to fisheries as granted by s. 51 (x.) is pregnant with practical difficulties particularly if there is at any time any diversity between Commonwealth and State laws with respect to fishing on the high seas. The determination upon a fishing vessel of the point at which it passes out of or into the area of water within the three-mile belt must be, to say the least of it, exceedingly difficult if indeed at all possible in practical terms. There may have been much to be said for the view that the legislative power with respect to all fisheries in all Australian waters should have been vested in one authority, particularly as those waters wash the shores of all the States and no "inter-State" boundaries in the waters around Australia are readily definable in a practical sense by those who fish in the sea. But, I do not think that the Constitution evidences an intention to do so and as I have said, I do not think it does so. (at p193)

33. Australian waters beyond territorial limits is thus an area of the open sea having its shoreward margin one marine league from the Australian coast. I shall return to consider whether the proclamation confines the proclaimed waters to that inner margin. But first I will examine whether the outer limit of the proclaimed waters exceeds the bounds of Australian waters within the meaning of s. 51 (x.) of the Constitution and s. 4 of the Act. What I have so far concluded disposes of the defendant's submission that Australian waters beyond territorial limits are confined to the territorial sea recognized by international law. But the defendant's submission that in any case such waters do not extend so far as the seaward margins of the area of the proclaimed waters remains for consideration. (at p193)

34. The matter to be decided in this connexion is the meaning of the words "Australian waters" in the constitutional provision s. 51 (x.). Both the connotation and the detonation of "Australian waters" is thus a matter for this Court exclusively. It is not a matter which can be decided by the Executive. Consequently there is no room here for the tender or the acceptance of a certificate of the Executive as to the status of any waters surrounding Australia in relation to the constitutional power. (at p193)

35. However, as the Act operates by virtue of the Governor-General's proclamation under s. 7, the Executive must in the first place make a judgment as to the area of water which it deems it necessary or convenient in the interests of Australia to bring under the provisions of the Act for the control and operation of fisheries, a judgment which is entirely a matter for the Executive ; and also form some opinion as to the area of water which may properly fall within the constitutional and statutory description of Australian waters. This latter opinion is not binding upon the Court though it is not, in my opinion, entirely irrelevant to the Court's consideration of the denotation of Australian waters in relation to a proclamation under the Act. (at p194)

36. In my opinion, the framers of the Constitution doubtless had in mind the enactments to which I have made reference and were providing in s. 51 (x.) a legislative power to enable the Commonwealth to protect and regulate fisheries, which included, as of 1900, whaling, in which Australians may yet desire to operate. The possible participation of foreigners in those fisheries must also have been in mind. But, in my opinion, it is not Australian waters for the purposes of fishing which could be exclusively in mind in the construction of the constitutional provision. Australian waters for all Australian purposes are, in my opinion, comprehended in the description "Australian waters" in par. (x.) of s. 51. Accordingly, when the question of the extent of Australian waters for constitutional purposes is being considered it is necessary, in my opinion, to envisage Australian interests not only in fisheries but in defence and in commerce, particularly floating commerce, generally. None the less the physical contiguity of the high seas to the Australian continent, always treating the island of Tasmania as part of that continent and to the Territories of the Commonwealth must form a principal reason for the inclusion of an area of those high seas in the description "Australian waters". (at p194)

37. I have already referred to the two Acts passed by the Federal Council in connexion with pearl shell and beche-de-mer fisheries. The schedules to those Acts describe Australasian waters for the purposes of the respective Acts as an area of the waters of the open sea which extend in the case of the Act relating to Queensland to a distance of some 140 miles from the Queensland coast and in the case of the Act relating to Western Australia at the point of greatest extension to a distance of some 450 miles from the coast of Western Australia. Of course, these waters related specifically to fisheries of a particular kind which were then already, or thought then likely to be, exploited by residents of one of the colonies ; and in the case of Queensland, the appropriate area of water was complicated by the existence and location of the Great Barrier Reef. But each schedule is illustrative of a concept of Australasian waters which extended so far seaward as to enable protection to be afforded to fisheries which the colonists might wish to exploit. The Federal Council did not pass any Act concerning Australasian waters which were closer to the colony of New Zealand than to one or more of the Australian States. But it is not without present significance that the concept of Australasian waters did include waters in which both the Australian colonies and the colony of New Zealand were interested. Thus a great part of the Tasman Sea must have been considered as within the denotation of Australasian waters for the purposes of the Federal Council. (at p195)

38. In 1888 the Parliament of the United Kingdom passed an Act to be known as the Imperial Defence Act, 1888 (Imp.) (51 &52 Vict. c. 32). In the recitals in the preamble to the Act, it was said that the governments of the United Kingdom and of the Australian colonies and of the colony of New Zealand had recognized the need for increased naval protection of "the floating trade in Australasian waters". The Act ratified what was described as "the Australasian Agreement", scheduled to the Act, which provided for the establishment of a naval force to be provided and maintained jointly by the governments. For the purposes of the Act and the Agreement, an Australian station was delineated in a schedule to the Agreement. The area of the waters of the open sea, comprised within the limits of this station extended on the east coast to longitude 160degrees W, to the west to longitude 95degrees E, to the north to latitude 10degrees S up to 130degrees E longitude and then by stepped lines to latitude 12degrees N. On the south it stretched to the Antarctic Circle. The limits of this Australian station thus very substantially exceeded the area of the proclaimed waters. (at p195)

39. Lastly, in this connexion, the Court was furnished at its request and with the consent of the parties with a chart of the land masses and the oceans lying between longitude 20degrees W and longitude 30degrees W. The continent of Africa below latitude 20degrees N and the whole of South America were included in the chart. The limits of the proclaimed waters were also shown around Australia on this chart. The association of these waters with Australia and their considerable disassociation with any other countries other than Portuguese Timor and Indonesia were thus clearly manifest. Also the relativity of the area of the proclaimed waters to the oceans in which Australia is set is apparent. (at p195)

40. There is, in my opinion, no reason why waters should not for Australian constitutional purposes be considered Australian waters though for its own domestic and for that matter international purposes part of those waters may be regarded by another nation as its own waters. (at p195)

41. With these considerations in mind, I have studied the charts with which the Court was provided during argument as well as maps in globular form and in single plane projection. It is evident that the proclaimed waters are not merely contiguous but of particular interest and concern to Australia. The breadth of these waters relative to the surrounding oceans is small and certainly not disproportionate to the Australian interests to be served. (at p196)

42. Having regard to concepts evidently current in 1900 as to Australasian waters and their extent and to the interest of Australia in the fisheries, including whaling, actual or potential about the Australian coast and the other commercial and security interests of Australia in the adjacent waters, I have no doubt that "Australian waters" as envisaged by s. 51 (x.) extends at least as far seaward from the Australian coast as the limits of the proclaimed waters. The denotation of Australian waters will not, in my opinion, be static and will extend for example as the capacity to exploit fisheries yet further afield develops with increased technology. But the inner limit of three miles offshore as the Imperial territorial limit as in 1900 will, in my opinion, remain static, whatever changes may take place in administration, understanding, comity and convention. (at p196)

43. I turn now to the final point touching the validity of the proclamation with which I have found some difficulty. The question is whether the proclamation has confined the inner limits of the proclaimed waters to the constitutional inner limit three nautical miles offshore. The metes and bearings set out in the proclamation use the coastline as the inner boundary. The proclamation excludes from the waters enclosed within this described area "waters that are within the territorial limits of a State". As will have appeared from what I have so far written, I have concluded that the "territorial limits" to which the constitutional power (s. 51 (x.)) refers were not the territorial limits of any State or of the Commonwealth. They were the Imperial territorial limits. The territorial limits of a State or Territory would be the coastline at low-water mark. In strict legal parlance, waters within the territorial limits of a State or Territory, are, in my opinion, the "inland waters", comprising the waters within estuaries, enclosed bays and the inland rivers. This it seems to me is so as a matter of law whether one is speaking of the State as a political entity or as a geographical unit. If this meaning be given to the description "waters within the territorial limits of a State" in the proclamation, quite clearly the proclamation would be void as embracing a larger area of water in the proclaimed waters than is permissible. Because the Act merely repeats the constitutional description in the relevant part of the definition of Australian waters the proclamation would exceed the statutory authority given by s. 7. It would include the three nautical miles of the territorial sea, which, in my opinion, are excluded from the scope of the constitutional power and the statutory definition by the expression "beyond territorial limits". But the excess of the proclaimed waters on that view would be immediately curable by a fresh proclamation. (at p197)

44. However, quite clearly the draftsman of the proclamation did not intend to include waters which were not included in the constitutional and statutory description. Both by the form of the Act (see s. 4) "Australian waters" and the form of the proclamation itself, the intention clearly was to keep within the constitutional power however much or little it might comprehend. But even more significantly the inland waters were not comprised within the area described by metes and bearings. It was from this described area of water that the draftsman of the proclamation meant to make an exception. (at p197)

45. As I remarked earlier, in my opinion, there has been a misconception in the minds of the law officers of the colonies, of the States, and now I think of the Commonwealth. It has been thought that the colonies had a territorial sea which was a colonial territorial sea as distinct from an Imperial territorial sea. The concept has been carried down into the State and Commonwealth sphere after federation. Indeed, in the case of the Commonwealth it has extended so far as to include a territorial sea as appurtenant to and as part of each Territory of the Commonwealth. In the case of the Northern Territory, the supposition may have been that the State of South Australia had a northern territorial sea which remained as a territorial sea appurtenant to the ceded territory when Northern Territory became a Commonwealth Territory. I have indicated my view as to the position of the colonies and the States in this regard. In any case I find nothing in the instruments by which the Northern Territory was transferred to the Commonwealth which would justify such an assumption ; see the description of the Northern Territory in the definition in the agreement scheduled to the Northern Territory Acceptance Act 1910-1919 (Cth). As I have mentioned earlier at some point of time but certainly by the time the Commonwealth became a party to the Convention on the Territorial Sea the Commonwealth acquired "sovereignty" in the territorial sea around the whole of Australia and its territories, and the subjacent soil so that the territorial limits of Australia accepted internationally extend beyond the land mass of Australia and its territories to a point, as of this time, at least three nautical miles seaward of the shores of Australia and its territories. But that "sovereignty" has not been passed away from the Commonwealth so far as I can discover. However, this is not the question here. The question is whether the words of exception in the proclamation can be read as referring to an area of waters between the coastline and three nautical miles therefrom. As I have said, I feel confident that it was the intention of the writer of the proclamation so to provide. But, though a misconception, the evident existence of the idea of a territorial sea of a colony which set its territorial limits is, I think, relevant to the construction of the proclamation. It is not an area where thinking it so may make it so : but the existence of the misconception may aid the construction of the statutory instrument. Bearing in mind this evident misconception and the other indications I have mentioned, I have come to the conclusion, though not without considerable hesitation, that it is permissible to interpret the words of exception in the proclamation as intending to describe an area of waters confined in the three-mile belt. Consequently, so construing the proclamation, I conclude that the proclamation does not include waters which are not within the ambit of the constitutional power or of the definition of the Act. (at p198)

46. The last submission of the defendant was that to legislate to control fishing was not to make a law with respect to fisheries. The point needs no discussion for, in my opinion, it completely lacks substance. The most direct way to protect a fishery is to regulate how and to what extent waters may be fished. (at p198)

47. In my opinion, the complaint has been made out. The defendant should be convicted and the proceedings remitted to the magistrate to impose an appropriate penalty. (at p198)

MCTIERNAN J. I think the submissions of the defendant in this case fail. (at p198)

2. The subject of the legislative power vested by s. 51 (x.) of the Constitution in the Parliament is "Fisheries in Australian waters beyond territorial limits". (at p198)

3. In the Federal Council of Australasia Act, 1885 (Imp.) the expression "Fisheries in Australasian waters" occurs : see s. 15 (c). In that Act the expression "Australasian waters" denoted the territorial seas and the oceans around and about the coasts of the member colonies of the Federal Council. I think that this usage affords presumptive evidence that the expression "Australian waters" in s. 51 (x.) does not denote merely "Australian territorial waters" but it means the whole expanse of waters constituting the marine environs of Australia. The waters six miles east of the coast of New South Wales where the alleged offence was committed are therefore "Australian waters" within the meaning of that expression in s. 51 (x.). But it is necessary for the purposes of this prosecution that such waters should be "proclaimed waters" within the meaning of s. 4 of the Act. It is argued that the area defined by proclamation is in certain regions so remote from Australia as not to be capable of being described as "Australian waters" and that therefore the proclamations are invalid. It is a matter for the discretion of Parliament to select such area of "Australian waters" as it thinks fit over which to apply laws enacted under s. 51 (x.). Further it is within this power for Parliament to delegate to the Executive the exercise of this discretion as it has done by s. 7 of the Act. (at p199)

4. The plan in evidence shows the area of the oceans surrounding Australia which the Governor-General has declared to be "proclaimed waters". I think it is right to take the view that there are no waters so little connected with Australia or so distant in this area as to lead the Court to hold that the area defined by proclamation is based on an excessive estimate of the extent of "Australian waters". (at p199)

5. I am of opinion that no provision of the Act, which the defendant attacks as not being within power, is ultra vires. (at p199)

6. It seems to me therefore that there must be a finding of guilty. (at p199)

KITTO J. In a prosecution initiated in a New South Wales court of petty sessions and removed into this Court by an order under s. 40 of the Judiciary Act 1903-1966 (Cth), the defendant stands charged with an offence under s. 13 (1) (e) of the Fisheries Act 1952-1966 (Cth) in that he did an act prohibited by a notice for the time being in force under s. 8 of that Act. That section provides, inter alia, that the Minister may, by notice published in the Gazette, prohibit the taking, from proclaimed waters, of fish, by equipment specified in the notice. The Minister by such a notice, dated 19th May 1961, prohibited the taking from "proclaimed waters" of fish, other than prawns, by an otter trawl-net the size of the mesh of which, measured in a specified manner, was less than three and a half inches. (at p199)

2. The expression "proclaimed waters" is defined by s. 4 of the Act to mean Australian waters specified by proclamation in force under s. 7. That section authorizes the Governor-General to declare any "Australian waters" to be proclaimed waters for the purposes of the Act. The Governor-General by proclamation made on 30th November 1954, as varied by a proclamation made on 7th February 1956, had declared as proclaimed waters the waters, other than "waters that are within the territorial limits of a State or a Territory of the Commonwealth", contained within an area bounded by a line roughly following the general outline of the Australian coast, mostly between two and three hundred miles from the shore, but off the New South Wales coast digressing to include waters surrounding Lord Howe Island, off the Queensland coast making a large detour on an irregular course to the north to embrace the sea for varying distances to the south, east and north of the Territory of Papua and New Guinea as well as some small Queensland islands, and off the Western Australian coast making a small deviation to enclose waters around the Territory of Ashmore and Cartier Islands (administratively part of the Northern Territory) : (see the Acts Nos. 60 of 1933 and 11 of 1938). (at p200)

3. The parties are agreed that the defendant took fish, other than prawns, by equipment specified in the Minister's notice from waters forming part of the waters declared by the proclamation (as varied) to be proclaimed waters, and that the place where he did so was approximately six and a half nautical miles off the coast of New South Wales. (at p200)

4. The first question to be decided is whether the waters described in the proclamation (as varied) are wholly "Australian waters" within the meaning of s. 7 ; for unless they are the proclamation was not authorized by the Act, the prohibition in the Minister's notice had no legal force and the defendant's admitted conduct constituted no offence. If the answer to that question be yes, a constitutional question arises, namely whether it is within the powers of the Parliament to create an offence of taking fish by specified equipment in the waters so described. The first question requires consideration of the definition of "Australian waters" in s. 4 of the Fisheries Act. The expression is there defined to mean -

"(a) Australian waters beyond territorial limits ; (b) the waters adjacent to a Territory and within territorial limits ; and (c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits."

Paragraph (a) of this definition is a simple repetition of words from s. 51 (x.) of the Constitution, which empowers the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to "fisheries in Australian waters beyond territorial limits" ; and the inference seems clear that the words are intended to bear the meaning they have in the Constitution. The argument we have heard accepts that this is so and proceeds to raise three questions. The first relates to the meaning of the word "fisheries" in the context of s. 51 (x.), the defendant contending that the reference is only to fishing grounds. Plainly enough, however, "fisheries", as a head of legislative power, means activities of taking fish and other marine products from the sea. The other and more serious questions relate to the meaning of the expressions "Australian waters" and "beyond territorial limits". (at p201)

5. A submission was made for the defendant that the "territorial limits" of a country washed by the sea are considered by English law to be the baseline of low-water mark and across the mouth of each bay, gulf and estuary intra fauces terrae, and that therefore the expression "Australian waters" in s. 51 (x.) and par. (a) of the Fisheries Act definition should be understood as limited to waters to a distance of three marine miles seaward of those lines, that being the distance which was generally considered in international law in 1900 as the width of the off-shore area over which a country was entitled to exercise control as regards certain matters including fisheries. (As to the present state of international law on the subject, see the Fisheries Case, United Kingdom v. Norway (1952) 1 TLR 181 .) (at p201)

6. In my opinion this interpretation of "territorial limits" should not be accepted. It is true that in some of the judgments in Reg. v. Keyn (1876) 2 Ex D 63 , and indeed by the actual decision in that case as interpreted in Harris v. Owners of Franconia (1877) 2 CPD 173, 177 , a distinction was drawn between, on the one hand, the area (to low-water mark and intra fauces terrae) as being territory over which a country's sovereignty extends and, on the other hand, the area of sea beyond low-water mark and within three miles therefrom as being territory over which the country enjoys internationally conceded authority while yet not forming part of the country itself. But even those who support the distinction are accustomed, as Lush J. pointed out in Reg. v. Keyn (1876) 2 Ex D 63, at p 239 , "by a convenient metaphor" to describe the latter area as the "territorial waters" of the country, and it seems but a natural continuation of the metaphor to describe the limits of the "territorial waters" of a country as its "territorial limits". Moreover, the view for which Reg. v. Keyn (1876) 2 Ex D 63 is cited cannot be regarded as established: Attorney-General for British Columbia v. Attorney-General for Canada (1914) AC 153, at pp 174-175 ; and indeed it may be that having regard to the judgment of the Privy Council in Secretary of State for India v. Chelikani Rama Rao (1916) 85 LJPC 222, , and notwithstanding what has been laid down for America in United States v. California (1947) 332 US 19 (91 Law Ed 1889) , this Court should hold, if the question were to arise squarely for decision, that the seaward boundaries of the States are set by the three-mile rule: cf. Dr. Lushington's interpretation in The Johannes (1860) Lush 182 (167 ER 87) , of "the limits of the United Kingdom", as used in the Merchant Shipping Act, 1854 (17 &18 Vict. c. 104 (Imp.)). A third possible view rests upon the proposition that even if neither sovereignty nor general legislative authority extends beyond low-water mark the authority of a littoral state to deal with certain special matters, including fisheries, was conceded in international law throughout the nineteenth century, and that the endowment of the Australian legislatures with plenary powers to make laws for the government of their respective colonies carried a power corresponding with that which the Imperial Parliament thus enjoyed by the law of nations: cf. in the case of a dominion Croft v. Dunphy (1933) AC 156 . On any of the three views, the expression "Australian waters" in s. 51 (x.) of the Constitution, and consequently in par. (a) of the definition in the Fisheries Act, stands in a context sharply contrasting with that in which "British waters" was found in s. 544 of the Merchant Shipping Act, 1894 (Imp.) (57 &58 Vict. c. 60), and such a case as The Pacific (1898) P 170 , is therefore not in point. Being used as comprehending waters beyond territorial limits, the expression must necessarily have a meaning to which the three-mile rule is irrelevant. (at p202)

7. It seems clear that the Constitution was framed upon the assumption that the federating colonies had, and as States would continue to have, legislative power as to fisheries over some part of the waters washing their shores. From a mere reading of s. 51 (x.) the intention may, I think, be inferred that some law-making power in respect of a limited area of the sea belonged to the colonies and should be preserved to them as States of the Commonwealth, so that any colonial or State laws made in exercise of that power should not be liable to be superseded by federal laws on the subject of fisheries: see also s. 107. We have not to decide in this case whether the assumption was right or wrong, for the acts charged against the defendant were done outside the three-mile limit, and in view of the state of international law in 1900 and British general doctrine at that time on the subject of territorial waters it seems certain that no wider limit can have been in contemplation. But some historical considerations must be mentioned which put beyond doubt, in my mind, the correctness of the inference I have stated as to the intention of the words "beyond territorial limits". (at p203)

Conclusions. (at p233)

56. I sum up the conclusions I have reached as follows :

(a) The Fisheries Act 1952-1966 and the proclamation made under it are a valid exercise of Commonwealth power. (b) The Act and proclamation do not extend to all waters that are beyond territorial limits for the purpose of s. 51 (x.) of the Constitution ; but they do not extend to any that are not. (c) Australian waters beyond territorial limits, within the meaning of the Constitution, are areas of the high seas beginning at low-water mark and extending seawards to an outer boundary determined by geographical and political considerations. By contrast waters within territorial limits are (i) rivers, lakes and inland waters and (ii) sea-waters in gulfs, estuaries and similar inlets of the sea, that is all waters which at common law would be regarded as within the jaws of the land. (d) Australian territorial waters for the purposes of international law are the territorial waters of the Commonwealth as a nation. They are not part of the territory of any Australian State : but a State may take possession of parts of them by for example building breakwaters ; and it may use the seabed for limited purposes, for example sewerage outlets. (e) The Australian States have plenary power to make laws for fisheries within their territorial limits ; and also, in the interests of peace, order and good government, for fisheries off their coasts provided their laws are not inconsistent with any valid Commonwealth law. (f) The defendant should be convicted. (at p233)

OWEN J. Section 4 of the Fisheries Act 1952-1966 (Cth) defines "Australian waters" to mean :

"(a) Australian waters beyond territorial limits ; (b) the waters adjacent to a Territory and within territorial limits ; and (c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits."

Section 5 (1) declares that the Act is to extend to all the Territories and to all Australian waters and by s. 7 the Governor-General is authorized to declare, by proclamation, any Australian waters to be proclaimed waters for the purposes of the Act. (at p234)

2. The proclamation, the validity of which is attacked, is expressed to cover Australian waters "other than waters within the territorial limits of a State". "Waters within the territorial limits of a State" are no doubt excluded from the statutory definition of "Australian waters" in par. (a) of s. 4 and therefore from the proclamation because of the terms of s. 51 (x.) of the Constitution under which the Parliament may make laws for the peace, order and good government of the Commonwealth with respect to "Fisheries in Australian waters beyond territorial limits". The proclamation does include, however, waters the internal boundary of which is the coastline of the Territory of New Guinea and in so far as these waters are concerned the legislative power of the Parliament rests upon s. 122 of the Constitution. But the arguments put forward by counsel for the defendant do not require us to consider the extent of the legislative powers of the Parliament under s. 122. His submissions were directed only to the powers conferred by s. 51 (x.) and it was not questioned that if the proclaimed waters around Australia itself can properly be described as "Australian waters", so much of the proclaimed waters as are adjacent to the coast of the Territory of New Guinea are properly included. (at p234)

3. The first submission was that s. 51 (x.) authorizes the Parliament to legislate only with respect to fisheries within the three-mile limit. The words "territorial limits" in the placitum, it was said, refer to the land limits of the Commonwealth and "Australian waters beyond territorial limits" are limited to waters which lie within three miles of the coastline. If this be so, there can be no doubt that the proclamation made under s. 7 of the Fisheries Act 1952-1966 is invalid since the external boundaries which it sets lie beyond the three-mile limit. (at p234)

4. Next it was said that if the words "Australian waters beyond territorial limits" are wide enough to cover areas of the seas beyond the three-mile limit, nevertheless the proclamation is invalid since the outer boundaries set by it are too wide and include waters which cannot fairly be regarded as "Australian waters". (at p234)

5. Finally it was suggested that s. 7 of the Fisheries Act is invalid because it purports to vest the Governor-General with judicial power. As I understood this argument, it was that the section purports to authorize His Excellency to determine what are and what are not "Australian waters" within the meaning of s. 51 (x.). But s. 7 does no such thing. It does not confer power to declare what waters are Australian waters. What it does is to enable His Excellency to proclaim "Any Australian waters" to be "proclaimed waters" for the purposes of the Act. (at p235)

6. I do not agree with the defendant's first submission that the Parliament's power to legislate is confined to the making of laws with respect to fisheries within three miles of the coast. It is said in Quick and Garran's Annotated Constitution of the Australian Commonwealth, at p. 569, that under s. 51 (x.) the States were "allowed to retain the control of fisheries within their territorial limits whilst the Federal Parliament was assigned jurisdiction over fisheries in Australian waters beyond the three-mile limit". The view thus expressed seems to be that the words "territorial limits" in s. 51 (x.) refer to the three-mile limit and that the Commonwealth Parliament's legislative powers do not enable it to make laws in respect of fisheries within that limit. I think it unnecessary to decide whether the Parliament's power to legislate with respect to fisheries is limited in the way suggested since waters within the territorial limits of a State - wherever those limits may lie - are excluded from the Fisheries Act and from the proclamation made under it, but I have no doubt that the placitum enables the Parliament to legislate with respect to fisheries in waters beyond the three-mile limit so long as those waters can fairly be described as "Australian waters". Support for this view is, in my opinion, to be found in two Acts passed pursuant to the Federal Council of Australasia Act (48 &49 Vict. c. 60), an Imperial Act which authorized the Federal Council to legislate with respect to "fisheries in Australasian waters beyond territorial limits", the words which - with the substitution of "Australian" for "Australasian" - were later used in s. 51 (x.). One of these Acts (which was passed in 1888) dealt with pearl-shell and beche-de-mer fisheries in waters off the coast of Queensland, the other (passed in 1889) dealt with similar fisheries off the coast of Western Australia. In each case the fisheries were in areas which extended far beyond the three-mile limit. The continuance of these Acts was preserved by s. 7 of the Commonwealth of Australia Constitution Act and, in fact, they remained in force until they were repealed by the Parliament in 1952. (at p235)

7. The remaining question for determination is the one about which I have felt most difficulty. Are the external limits set by the proclamation too wide or may the waters proclaimed properly be described as being "Australian waters" within the meaning of s. 51 (x.)? In considering this question it is to be borne in mind that Australia is an island continent and it is proper to take into account the width of the seas which lie between it and the shores of the other nations which border upon those seas. Here again I think that light is thrown on the question by the two Acts of the Federal Council to which I have referred earlier. In the case of the first of them "Australasian waters adjacent to the Colony of Queensland" were defined to cover an area which extended in places to two hundred miles or more from the coast of Queensland. In the second of the two Acts, the outer boundaries of "Australasian waters adjacent to the Colony of Western Australia" were defined so as to cover areas of the ocean five hundred miles from the coast of Western Australia. (at p236)

8. In the light of these considerations I am of opinion that the defendant's contentions cannot be sustained. (at p236)

Orders

Order that the defendant be convicted of the offence as charged and that the matter be remitted to the magistrate to be further dealt with according to law.