Harper v Minister for Sea Fisheries & Ors; Harper v Minister for Sea Fisheries

[1989] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml0 of 1988

B e t w e e n -

GEOFFREY ALAN HARPER

Plaintiff

and

MINISTER FOR SEA FISHERIES,

DIRECTOR OF SEA FISHERIES

and THE STATE OF TASMANIA

Defendant

Case Stated

MASON CJ
BRENNAN J
DEANE J
DAWSON J

Harper ( 2)

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 JUNE 1989, AT 10.15 AM

(Continued from 10/3/89)

Copyright in the High Court of Australia

ClT 1/1/JM - 301 '6/6/89

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M3 of 1989

B e t w e e n -

GEOFFREY ALAN HARPER

Plaintiff

and

MINISTER FOR SEA FISHERIES,

DIRECTOR OF SEA FISHERIES

and THE STATE OF TASMANIA

Defendant

Case Stated

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 JUNE 1989, AT 10.15 AM

Copright in the High Court of Australia

302

CITl/1/JM	6/6/89
Harper(2)	(Continued on page 302A)
MR S.P. CHARLES, QC:	If the Court pleases, I appear with

MR N.J. YOUNG,on behalf of the plaintiff, Harper.

(instructed by Freehill Hollingdale & Page).

MR W.C.R. BALE, OC, Solicitor-General for Tasmania:

May it please the Court, I appear with my learned friend, MR M.A. STODDART for the defendants.

(instructed: by the Acting Crown Solicitior for

Tasmania)

SIR M. BYERS,QC:  If the Court pleases, I appear with my

learned friends, MR B.J. KNOX and MR T. CONNOLLY
for the Attorney-General of the Cormnonwealth

intervening. (instructed by the Australian

Government Solicitor)

MASON CJ:	Yes, Sir Maurice, and supporting?
SIR MAURICE:	Supporting the legislation, if Your Honour

pleases.

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

If it please the Court, I appear with my learned

friend, MSC.A. WHEELER, on behalf of the

Attorney-General for the State of Western Australia

to intervene. (instructed by the Crovm Solicitor

for Western Australia)

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If the

Court pleases, I appear with my learned friend MR R.A. BRETT for the Attorney-General for the State of Victoria, intervening in the interests of

the defendants. (instructed by the Crown Solicitor

for Victoria)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned

friend, MR M.D. WALTER for the Attorney-General

for the State of South Australia, intervening in

support of the defendants. (instructed by the

Crown Solicitor for S:>uth Australia)

MR K. MASON& QC, Solicitor-General for New South Wales: If

t e Court pleases,I appear with my learned friend,

MR R. SACKVILLE for the Attorney-General for

the State of New South Wales, intervening to

support the defendants. (instructed by the

Crown Solicitor for New South Wales)

MR G.L. DAVIES, QC:  May it please the Court, I appear with

my learned friend, MR J.S. DOUGLAS, for the

Attorney-General for the State of Queensland,

intervening in support of the defendant.

(instructed by the Crown Solicitor for Queensland)

MASON CJ:  Mr Charles?

MR CHARLES: May I hand up our written submissions?

CITl/2/JM	302'A	6/6/89
Harper(2)

MASON CJ: Yes.

MR CHARLES:  I apologize for the length of the written submissions.

If the Court pleases, I hope that will mean our oral

argument will be compressed. There are a large number

of references to the cases set out in the submissions

and that will be a matter which we will be able to

leave for the Court to read from the submissions. May

I ask the Court, respectfully, to bear in mind the submissions that were made befor~which the Court will

have on transcript, on the last occasion the matter was before the Court when re_ference was made to the scheme of legislation.

I hope that members of the Court all have an uncompromisingly large volume -

MASON CJ: Yes, we have.

MR CHARLES:  - - - and also copies of the case stated. If I

could ask the Court to look first at those documents.

May I first take the Court to a number of the

definitions which appear in this in the hope of

reducing complexity. If the Court would be good

enough to go to the last tab in the folder of

legislation - which is tab 28 - the Court will see

set out the SEAS AND SUBMERGED LANDS ACT 1973 as

reprinted and, of course, scheduled to that Act is

the convention.

May I remind the Court that at pages 425 to 426

of the volume there appear in articles 3 and 4

reference to the:

baseline for measuring the breadth of the

territorial sea -

and, of course, the territorial sea is then measured
as being three nautical miles from those baselines.

The method of the drawing of them is set out in

articles 3, 4 and 5.

(Continued on page 304)

ClT2/l/DR	303	6/6/89
Harper(2)

MR CHARLES (continuing):  Now, next, if the Court would be

good enough to look at page 423 at section 10

of the SEAS AND SUBMERGED LANDS ACT, it will

be seen that the internal waters are said to be: waters of the sea on the landward side of

the baseline of the territorial sea.

Now, there is reference made at page 430 to the

"Convention on the Continental Shelf". I simply

mention that without taking the matter further.

Secondly, may I draw the Court's attention

to the Commonwealth FISHERIES ACT which appears at

tab 21 beginning at page 249 and to the

definition of "Australian fishing zone", appearing

at the bottom of page 252.	The Court will see that
it is:

the waters adjacent to Australia and

having as their inner limits the baselines -

and then proceeding outwards a distance of - 200 nautical miles.

The definition of "Australian fishing zone". It

will be seen that the definition - that is at

page 253 - excludes:

(c) waters that are not proclaimed

waters;

and

(d) waters that are excepted waters.

"Proclaimed waters" are defined on page 254 as:

waters declared by a Proclamation in

force under section 7 to be proclaimed

waters.

The proclamation appears in tab 3 of the case

stated - that is page 17 - and the Court will see
that it is on the right-hand side in schedule 1:

All waters within 200 nautical miles outwards of the baselines ..... other

than waters that are within the

territorial limits of a country other

than Australia.

ClT3/l/JH	6/6/89
Harper(2)

MR CHARLES (continuing): Next, Your Honours, in relation

to the question of the fisheries arrangement, I

draw attention to the COMMONWEALTH FISHERIES ACT,

that is to be found in the legislation at page 274,

that is the section 12H of the COMMONWEALTH FISHERIES

ACT 1952 and our understanding is that section 12H(4)

is the relevant section for that purpose.	The
Tasmanian legislation, which mirrors the

Cormnonwealth legislation in this respect, may

relevantly be found at tab 5 of the volume and

the particular section is section 24H, appearing

at page 87.

The arrangement itself is set out in the case stated at page 19 in tab 4, that

appearing on the right-hand column on page 19

and over the page into page 20, and a critical

provision of it is to be found in the right-hand

column on the last two lines on page 19.

Therefore,Your Honours, one has a number of

critital definitions that need to be borne in

mind in dealing with the POWERS ACT and the

TITLE ACT;reference to the Australian fishing zone

which is basically three miles out to 200 miles to the internal waters, which are the low water

matk out to the base line~ the territorial sea,

which is the base line out for three nautical

miles.

(Continued on page 306)

CIT4/l/CM	305	6/6/89
Harper(2)

MR CHARLES (continuing: And finally, Your Honours, the adjacent area

which the Court will find referred to in the

POWERS ACT, that, Your Honours, is tab 15, at

page 230, and defined in the interpretation section

as being·the:

"adjacent area in respect of the State" means,
in relation to each State, the area the boundary
of which is described under the heading referring

to that State in Schedule 2 to the PLTKOL1UN

(SUBMERGED LANDS) ACT 1967 as in force immediately

before the commencement of this Act;

And it is, of course, an area that extends beyond the territorial waters. It is defined, a matter of

squares by lattitude and longitudes.

Now, having begun with the legislation,

Your Honours, and may I, before leaving leo-islation.

recall to the Court's mind regulation Y7A	of the
Tasmanian Sea Fisheries Regulations which

prohibits the taking of abalone in State fishing

waters without a licence which authorizes the holder of the licence to take not more than a specified quantity, and imposes conditions upon the

exercise of the licence and stipulates the fee.

Now, Your Honours, in relation to the

abalone itself, may I invite the Court to look at

the stated case, and in particular draw attention at

pages 9 to 10 to the characteristics of the

abalone, or "the monster" as it has been called.

The Court will note in the middle of page 9 that the:

abalone moves in snail-like fashion

by means of a singular muscular foot, inching

itself across the sub-stratum by

alternatively contracting and extending that

foot,

Then on page 10 in subparagraph (d) that:

Recorded average static movement of	abalone is up to 1 to 2 meters over
24 hours on flat open rock.

And the statement appears that:

Research ..... shows that few abalone

move more than 20 to 40 metres from

one point ..... The highest recorded

movement in one 24 hours period is

40 metres.

ClTS/1/FK	306	6/6/89
Harper(2)

MR CHARLES (continuing):  The Court may have noted - and

I am not quite sure of the relevance of the fact - that the abalone is, at least when young, a highly

moral creature - - -

MASON CJ:	Yes, we notice that.
MR CHARLES:	In case the Court may have thought that that

was a mistake, it appears twice in succeeding

paragraphs; the paragraphs are (j) and (k) on

page 11.

Your Honours, we seek to make certain short propositions, beginning with the position at

common law and starting from Magna Carta. The

right, as we understand it, of the·subject to

fish in the sea and in tidal waters is a public

right and one that is not dependent on any

proprietary right in the Crown. We have set

out the position as at common law in paragraph 8

on page 2. The matter has been regarded as

established since MALCOLMSON V O'DEA in 10 HLC,

the reference to which the Court has, and may

I add two further references to GOODMAN V MAYOR

OF SALTASH, (1881-1882) 7 AC 633, particular

in the judgment of Lord Blackburn; a case which

has significance because it applies the public

common of piscary to oysters and, likewise,

Your Honours, we refer to a case which was relied

on in several occasions in NEW SOU1H WALES V

THE COMMONWEALTH, that is, GANN V FREE FISHERS

OF WHITSTABLE, (1865) 11 HLC 192; That the position is the same in Scotland

is clear from the THE~-LORD ADVOCATE V THE TRUSTEES

OF CLYDE NAVIGATION, (1891) 19 Sess Cas 174, particularly at pages 182 and 184.

(Continued on page 308)

/ND 30 7 6/6/89

Harper(2)

MR CHARLES (continuing):  I apologize, Your Honours, for

the fact that those cases were not on our list

of authorities. In our submission, the

conclusion that may be drawn from that. is that

while the Crown has a clear right to regulate

fishing of that kind, the public right remains

very clearly established from those cases and is

a matter of which will be, in our submission, of significance, in turning to what has taken place

under the TITLE and POWERS ACTS.

It will be our submission that the cases

demonstrate that the power of regulation does

include a power of taxation, but does not permit

the owner - that is the Crown - to insist upon

the taking of a royalty or a profit a prendre

for the harvesting of the fish or the oysters or

whatever it is that is sought to be taken.

Now, there is a passage to which I should

refer the Court in GOODMAN V MAYOR OF SALTASH at

page 646 - it is a short passage, if I may read

it to the Court from the speech of the

Lord Chancellor, Lord Selborne - it is in these terms that:

Fish (whether floating or shell-fish) are not part of the soil or freehold. Their capture is merely the ordinary mode

of perception of those fruits and profits

which a fishery produces. They grow, and

are reproduced continually from spat and

spawn; and if it is true that a fishery

might possibly be exhausted by excessive

fishing, it is only in the same way that

a field may be exhausted by over-cropping.

If the corporation -

and then I invite the Court to read the bottom

half of page 646.	So far as GANN V FREE FISHERS
OF 'WHISTABI.E	Ls concerned - the case to which I

very briefly referred the Court a moment ago - may	I draw the Court's attention to what was said in	the English R~port at page 1314 in the speech of
Lord Wensleydale - it is at point 4 of page 1314.

DAWSON J:  What volume, Mr Charles?

MR CHARLES:  I am so sorry, Your Honour. It is volume 11

of the House of Lords cases and in the House of

Lords cases, it will be found at the bottom of

page 213.

BRENNAN J:  And the volume of the English Reports?

MR CHARLES:  I am sorry, Your Honour, I do not have it - volume 11 of the English Reports. I have copies

of the case here for members of the Court.

ClT7/l/JH	308	6/6/89
Harper(2)

MASON CJ:	Yes, thank you.
MR CHARLES:	The passage to which I was seeking to refer

the Court is at page 1314 of the English Report

and at the end of page 213 in these terms, in

Lord Wensleydale's speech:

The principal difficulty I feel is, that

the right to the soil of the fundus

maris within three miles below low-water

mark, and to the fishery in it, though

granted before Magna Charta, is
undoubtedly subject to the rights of
all subjects to pass in their vessels
in the ordinary and usual course of
navigation, and to take the ground
there, or to anchor there at their

pleasure, free from toll, unless the

toll is imposed in respect of some other

advantage conferred upon them, or at

least on the public.

And, likewise, Your Honours, may I refer to the

bottom of page 1315, at the start of page 218

of volume 11, House of Lords cases. This is

Lord Chelmsford's speech:

I do not think it can be assumed as an

unquestionable proposition of law, that,

as between the Crown and its subjects,

the sea-shore, to the extent mentioned,

is the property of the Crown in such an

absolute sense as that a toll may be

imposed upon a subject for the use of it

in the regular course of navigation. In

stating the right of the Crown in the

sea-shore, the text writers invariably

confine it to the soil between high and

low water mark. The three miles limit

depends upon a rule of international law,

by which every independent State is

and jurisdiction in the seas which wash	considered to have territorial property
their coasts within the assumed distance of a cannon-shot from the shore.
Whatever power this may impart with
respect to foreigners, it may well be
questioned whether the Crown's ownership
in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation.

ClT7/2/JH	309	6/6/89
Harper(2)

:MR CHARLES (continuing):  Your Honours, may I refer the

Court to the position in the Canadian cases?

We have made reference to three of them in our sunn:nary of argument. There is one to which I

wish to make particular reference, Your Honours,

that is the ATTORNEY-GENERAL FOR BRITISH COLUMBIA

V THE ATTORNEY-GENERAL FOR CANADA, (1914) AC 153.

Members of the Court will recall that this case

was cited repeatedly in the SEAS AND SUBMERGED

LANDS case. The passages to which we would wish

to make reference appear at pages 168 to 169,

170 and 171, and 172 and 174. May I take the

passage at page 169, at point 3? Their Lordships
are in entire agreement with him on his main

proposition - that is Lord Blackburn's:

namely, that the subjects of the Crown
are entitled as of right not only to

navigate but to fish in the high seas and

tidal waters alike. The legal character of

this right is not easy to define. It is

probably a right enjoyed so far as the high
seas are concerned by common practice from

time immemorial, and it was probably in very

early times extended by the subject without

challenge to the foreshore and tidal waters

which were continuous with the ocean, if,

indeed, it did not in fact first take rise in

them. The right into which this practice has

crystallized resembles in some respects the

right to navigate the seas or the right to use

a navigable river as a highway, and its origin

is not more obscure than that of these rights

of navigation. Finding its subjects exercising

this right as from immemorial antiquity the

Crown as parens patriae no doubt regarded itself

bound to protect the subject in exercising it,

and the origin and extent of the right as legally

cognizable are probably attributable to that

protection, a protection which gradually came

to be recognized as establishing a legal right

enforceable in the Courts.

Then, Your Honours, at page 170, at the middle of

that page, Vicount Haldane says:

Since the decision of the House :of Lords in

MALCOLMSON V O'DEA, it hs been unquestioned

law that since Magna Charta no new exclusive

fishery could be created by Royal grant in

tidal waters, and that no public right of

fishing in such waters, then existing, can be

taken away without competent legislation.

This is now part of the law of England, and
Their Lordships entertain no doubt that it

is part of the law of British Columbia.

CIT8/l/JM	310	6/6/89
Harper ( 2)

On page 171 at point 3:

It follows from these considerations that

the position of the rights of fishing in

the rivers, lakes and tidal waters (whether in

within the railway belt stand prima facie as	rivers and estuaries or on the foreshore)
follows: In the non-tidal waters they belong
to the proprietor of the soil, i.e., the
Dominion, unless and until they have been
granted by it to some individual or corporation.
In the tidal waters, whether on the foreshore or
in creeks, estuaries, and tidal rivers, the
public have the right to fish, and by reason
of the provisions of Magna Charta no restriction can be put upon that right of the public by an
exercise of the prerogative in the form of a grant or otherwise. It will, of course,be understood
that in speaking of this public right of
fishing in tidal waters their Lordships do not refer in any way to fishing by kiddles, weirs, or other engines -

and five lines down -

we now come to the crux of the present case.	The
restriction above referred to relates only to
Royal grants, and what their Lordships here
have to decide is whether the Provincial
Legislature has the power to alter these public rights in the same way as a sovereign

Legislature, such as that of the United Kingdom,

could alter the law in these respects within

its territory.

To answer this question one must examine

the limitations to the powers of the Provincial

Legislature which are relevant to the question

under consideration.

(Continued on page 312)

CIT/8/JM	311	6/6/89
Harper(2)

MR CHARLES (continuing): Then, Your Honours, I should take the

Court to page 172 and after making reference to

section 91 of the British North America Act as showing

that:

the exclusive legislative authority of the Parliament

of Canada extends to all matters coming within

(amongst other things) "sea coast and inland

fisheries."

At the third line:

The meaning of this provision was considered by

this Board in the case of ATTORNEY-GENERAL FOR

THE DOMINION V ATTORNEYS-GENERAL FOR THE PROVINCES,

and it was held that it does not confer on the

Dominion any rights of property, but that it does

confer an exclusive right on the Dominion to make
restrictions or limitations by which public rights

of fishing are controlled, and on this exclusive

right provincial legislation cannot trench. It

recognised that the Province retains a right to

dispose of any fisheries to the property in which

the Province has a legal title, so far as the mode

of such disposal is consistent with the Dominion

right of regulation, but it held that, even in

the case where proprietary rights remain with the

Province, the subject-matter may be of such a

character that the exclusive power of the Dominion
to legislate in regard to fisheries may restrict
the free exercise of provincial rights. Accordingly
it sustained the right of the Dominion to control
the methods and season of fishing and to impose a
tax in the nature of licence duty as a condition of
the right to fish, even in cases in which the

property in the fishery originally was or still is

in the Provincial Government.

That is a matter, Your Honours, to which we will

return.

DEANE J: Is there any significance in the fact that they talk

about this as being the right of a subject of the Crown?

What about a company?

MR CHARLES:  We would say, Your Honours, that there is no

significance to that extent - no. That the public

right of fishery must entitle individuals, whether or

not involved with corporations, either way they are

both subjects of the Crown.

DEANE J: Whether or not subjects of the Crown?

MR CHARLES:  We would submit that they are subjects of the

Crown, Your Honour.

ClT9/l/DR	312	6/6/89
Harper(2)

DEANE J:	But what about somebody who is not a subject of the
Crown, but who is here lawfully?

MR CHARLES: Clearly, Your Honour, a different question might

arise although, so far as this case is concerned,

the question does not.

DEANE J: It all seems a bit "other worldly" to me. This is

why I ask you about it.

MR CHARLES: Well, Your Honour, it may in some senses be

"other worldly" but I doubt if there will be any
difference between the parties as to the existence
of this public right. What has happened to it in

recent times would be an entirely different question.

But, in any event, Your Honours, we do not question

the jurisdiction of an appropriate legislature to

regulate the fishery. If that were necessary to

be found, further down the same page to which

reference has just been made, near the bottom of

page 172, one can find that being expressly stated.

That is at point 10:

The right being a public one, all that could

be done was to regulate its exercise, and the

exclusive power of regulation was placed in

the Dominion Parliament.

DEANE J: But what if the appropriate legislature said, "From

now on we will ·own it. 11

MR CHARLES:  Then, Your Honour, if the appropriate legislature

did so, in that situation there would be entirely

different questions arising. If the Commonwealth

Parliament, in this case, had taken that course and

imposed an appropriate tax,	entirely different
questions would arise.	We are here, Your Honour,

dealing with the power that the State Government
claims to do so. We would say that any power to

tax that the Tasmanian Parliament may have must

inevitably be exercised subject to the restrictions

of section 90. A power to tax is one thing; a

power to levy·an excise is an entirely different matter.

The power to regulate is dealt with further

on page 173, in the substantial paragraph in the

middle of the page, and again at page 174. May I

draw the Court's attention to the passage appearing

in the second paragraph on that page:

(Continued on page 314)

ClT9/2/DR	313	6/6/89
Harper(2)

MR CHARLES (continuing):

In the argument before their Lordships
much was said as to an alleged proprietary

title in the Province to the shore

around its coast within a marine league.	The
importance of claims based upon such a

proprietary title arises from the fact that

they would not be affected by the grant of

the lands within the railway belt. But

their Lordships feel themselves relieved

from expressing any opinion on the question

whether the Crown has a right of property

in the bed of the sea below low water mark

to what is known as the three-mile limit

because they are of opinion that the right

of the public to fish in the sea has been
well established in English law for many

centuries and does not depend on the

assertion or maintenance of any title in

the Crown to the subjacent land.

Your Honours, I do not propose to say any more

on the common law position. It is submitted

that the right is well established and may

I then make reference,without asking the

Court to examine the case in detail, to the

SEAS AND SUBMERGED LANDS case, 135 CLR 337.

We submit that establishes that Tasmania has

not, and never had, sovereign or proprietary

rights in respect of the territorial sea, the subjacant soil or the superjacent air

space, and that sovereignty and the Crown's

prerogative in relation to the territorial
sea are vested in and exercisable solely by
the Crown in right of the Commonwealth,

the boundaries of the former colonies all

ending at low water mark.

Now, Your Honours, it is in that context,

we submit, that the TITLE and POWERS ACTS to

which reference has been made, to which I

will now turn, were passed in 1980. May we

hand up to the Court a collection of materials

that has been produced containing the

explanatory memoranda and the hansard debates

in relation to that legislation.

~.ASON CJ: Thank you.

MR CHARLES:  Members of the Court will now have the second

reading speech. I now have the debates in

the House of Representatives and may I - - -

MASON CJ:  What are we looking at this for, Mr Charles?

MR CHARLES:  For these matters, Your Honours. Firstly

·we seek to establish that the passing of this

CITl0/1/CM 314 6/6/89

Harper(2)

legislation was not a bipartisan matter. It

was a matter of high controversy at the time.

We wish to direct submissions to the validity

of the legislation which will have some

bearing on the question of the entitlement of

the Commonwealth Parliament to pass legislation

which takes away, subtracts from, the ability

of the Commonwealth to act as a nation State.

We submit that reference to the debates-

and I do not propose to ask the Court to

look at any particular passages, we simply

provide it for this purpose- demonstrates

that not merely was the matter one of
controversy, but that the purpose of the
parlimnent in passing this legislation was

to overturn substantially the effect of the

SEAS AND SUBMERGED LANDS case. In other words

this Court, having found in that case that the

territorial waters were and always had been,

or at least since somewhere around 1930

clearly had been, within the sovereignty of

the Commonwealth, that this was an attempt

by the Commonwealth Parliament to reverse that

situation,to pass some of that sovereignty back

to the States with the effect that the

Commonwealth's ability to legislate in a

variety of ways necessary for the Commonwealth's

functions was very detrimentally affected.

(Continued on page 316)

CITl0/2/CM	315	6/6/89
Harper(2)

MASON CJ:  But does not that flow from a reading of the

legislation? What does recourse to the debates

provide over and above what emerges from an

examination of the legislation?

MR CHARLES:  Your Honour, maybe it does this, in addition

to what I have put before, that it demonstrates

that should future governments take the view
that the· cour-se taken in }980, was undesirable

or that it is now necessary to depart from that

course and the possibility of any such future

decision being·made by a government might be

added to by the nature of the debate that took

place before Parliament in 1980, we would say

it can be.seen that the difficulty of undoing

the arrangement, if I may call it that, the exercise

in co-operative federalism, will be made substantially

greater by the nature of the exercise engaged

in by Parliament then.

In other words, for example, that having

passed what may be seen as title to the States,
for the Commonwealth to attempt to resume that

title in the future will be an exercise made

prohibitively expensive by section Sl(xxxi).

Your Honours, we mean no more than in saying

that the exercise was highly controversial, the

time may come when the Parliament may wish to

reverse that course, m~y feel it necessary to

reverse that course. The Court will see from

the debates that a number of the issues as to the validity of the legislation were foreseen

as the time that the debates were engaged in.

We do not suggest that the Court will gain

any particular assistance in the interpretation

of the legislation from looking at this material.

MASON CJ:  For my part, I remain at a loss to understand

how it is going to assist us.

MR CHARLES:  Your Honours, if it does assist in the ways

I have put then the debates will be of no assistance and may be disregarded.

MASON CJ:  Mr Charles, we would not want to stop you from

referring to material that you consider you can

call in aid of your submissions but you have
conceded, as I understand it, that this material
does not bear on the construction or interpretation

of the legislation.

MR CHARLES:  The only matter, Your Honour, I should add

in case I did not make it clear before, was we

say that the examination of the debates shows

that the intention of Parliament was to bring

C lT 11 /1 /ND	316	6/6/89
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about a result which reversed the decision

of this Court in the SEAS AND SUBMERGED LANDS

case.	In other words, that that was the mischief
at which the legislation was directed.	The question,

Your Honours, would be to the extent that this

Court decided that the fact that territorial waters remained in the hands of the Commonwealth

and not in the States was something which was

essential for the Commonwealth to function· and.

wholly inappropriate to give to the States may

be a matter which bears upon the power of

Parliament to legislate in that fashion.

DEANE J:	But it is all a matter of words, is it not? I mean, the legislation was founded on this Court's
decision in the SEAS AND SUBMERGED LANDS ACT case.
It just ch?nged the distribution that resulted
from that decision.

MR CHARLES: It did, indeed, Your Honours, yes.

DEANE J: It did not purport to reverse the decision.

MR CHARLES:  We would certainly wish to argue, Your Honours,

that in a number of very substantial respects

it did so.

DEANE J: But, as I say, it becomes a matter of words.

I mean, they started with the decision and then

changed things.

MR CHARLES:  Yes, I accept, Your Honours, that it founds

done so, seeks to overturn the result.

on the decision of this Court in the SEAS AND

(Continued on page 318)

C 1 T 11 / 2 /ND 317 6/6/89

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MR CHARLES (continuing): Whether it can achieve that

result, whether it does so is a different question

for examination of the Acts.

MASON CJ:	Mr Charles, we would not wish to stop you, but I
think we have made it perfectly clear that, on the face of it, there seems to be as it were limited
assistance that will ensue as a result of this
exploration, and perhaps you might bear that in
mind, because we would not want to take up time
unnecessarily.
MR CHARLES:	Your Honours, I propose to make absolutely no

further reference to the debatesat all.

We would put it, in relation to the

legislation, that the fact that the Commonwealth

has become a participating member of the

Convention on the Territorial Sea, the fact of the passing of the legislation which is the

SEAS AND SUBMERGED LANDS ACT and contained in the

volume at tab 28, the fact that this Court has

quite clearly decided that the States have never

had the ownership of the territorial waters
demonstrated for a variety of reasons, a variety
of what we submit are essential constitutional
reasons, that the territorial waters were
Australian and not State Territory, and that
Federation made this conclusion essential.

May I, without asking the Court at this stage

to look at passages, simply refer to what was said by
Sir Garfield Barwick in the SEAS AND SUBMERGED LANDS

ACT case at pages 373 to 374 of the report, to what

Your Honour the Chief Justice said at page 470, and

to what Mr Justice Murphy said at pages 505 to 506,

and may I read simply one passage, Your Honours,

at page 470 of the report - I think members of the

Court have the report nearby, volume 135. It is in

the judgment of Your Honour the Chief Justice at

page 470, beginning at the third line:

In UNITED STATES V CALIFORNIA

the Supreme Court of the United States observed
that national interests, rather than the

interests of individual states, were paramount

in the three-mile belt. The control and

regulation by the coastal state of its

territorial sea, and for that matter of its

solumn, is an aspect of its external

sovereignty and its external relationships
with other nations. It is therefore a

function as appropriate to the Commonwealth

as it is inappropriate to the States. Judged

even from a domestic standpoint the territorial

sea has such important consequences for the

defence of the nation, for the protection

of the revenue, for quarantine and for national

interests in general that it is not readily to

C1Tl2/l/FK	318	6/6/89
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be supposed that upon federation the
power to regulate and control the territorial

sea and its solumn was vested in the States

to the exclusion of the Commonwealth, thereby

denying to the Commonwealth power to

establish a uniform regime in that area, and

leaving it subject to the enactment of diverse

and discordant rules.

One of our submissions will be that the bringing into effect of the 1980 arrangement is to produce

that result, establishing diverse and discordant

rules in Australian territorial waters.

Your Honours, the subsidiary questions, if I may outline them, would be firstly this, that having

regard to the passing of the SEAS AND SUBMERGED LANDS

ACT in 1973, did the Commonwealth have power to give
the sovereignty that it had gained and any property it

had gained or most of that sovereignty and property

to the States, and under what head of power.

(Continued on page 320)

ClT12/2/FK	319	6/6/89
Harper(2)

MR CHARLES (continuing):  A second question would be,

have the participants produced a consequence which

enlarges the boundaries of the States in such a

way as to deny the electors of the States the

say in that exercise that they were given by

section 123.c:fthe CONSTITUTION? Next, we would put

it that the Conunonwealth acquired territorial

waters as a place for public purposes which, we

say, brings with it the conclusion under

section 52(i) of the CONSTITUTION that it has

exclusive power to legislate for such places.

We say next,and following these submissions we

have made, that there is a question of inconsistency,
notwithstanding the inclusion of section 16(2)

of the SEAS AND SUBMERGED LANDS ACT, and in its

later amendment. It will be our submission that

the passing of this legislation cannot be brought

within the external affairs power - it is not a

matter, we would submit, of external affairs - nor,

we would submit, is it properly brought within

section 5l(xxxviii) and we would submit that there

is no relevant power of nationhood involved. Indeed,

considerations of the kind to which Your Honour

the Chief Justice referred in the SEAS AND

SUBMERGED LANDS case, in our submission, would

suggest that the power of nationhood should prevent

the making of legislation of this kind.

Now, Your Honours, may I now ask the Court

to turn to the TITLE ACT, with a view to

considering the construction of that Act.

Your Honours, first, the Act is found at tab 17

at page 236. Nay I draw the Court's attention to

the fact that the POWERS ACT is found at tab 15,

beginning at page 230, because Your Honours will see at page 236 that coastal waters are defined as having:

the same meaning as -

in the POWERS ACT, and in the POWERS ACT,

coastal waters are defined at page 230 in section 3(1) of the POWERS ACT.

Now, may I ask the Court to look at

section 3(2)(b) - this is at page 236.	The Court
will see that:

In this Act, so far as the context admits -

(b) a reference to the sea-bed beneath

the coastal waters of a State shall be
read as including a reference to the

subsoil (including all minerals) beneath

that sea-bed and to structures or other

things attached to that sea-bed.

ClT13/l/JH	320/321	6/6/89
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MR CHARLES (continuing): It would be our submission that

that subsection is not capable of including a

living and animate moving being, the abalone,

both because of the reference to the phrase

"structures or other things" and because the

abalone cannot be regarded as attached to the

subsoil.

So that we would submit that in so far

as this Act is effective to pass proprietary

rights to the States in the subsoil, it does

not pass any proprietary rights in the abalone. Next, Your Honours, the question arises

of what is the meaning of section 4(1) in paf-e

237, at the top of the page.	The Court will see
that:

By force of this Act, but subject to this

Act, there are vested in each State, upon

the date of coimD.encement of this Act, the

same right and title to the property in

the sea-bed beneath the coastal waters of

State, as extending on that date, and the

same rights in respect of the space

[ncluding space occupied by water) above that sea-bed, as would belong to the State if that

sea-bed were the sea-bed beneath waters of the

sea within the limits of the State.

Your Honours, that subsection presents a number of difficult problems. Mav I contrast it

with the section in the POWERS ACT, which in

relation to legislative powers, at page 231, in

section S(a), talks of:

The legislative powers exercisable from time to

time under the constitution of each State extend

to the making of -

(a) all such laws of the State as could be made

by virtue of those powers if the coastal waters

of the State, as extending from time to time,

were within the limits of the State, including

laws applying in or in relation to the sea-bed

and subsoil beneath -

Now the difference, of course, Your Honours,

relevantly is in the TITLE ACT. The deeming - if

I can call it that - provision talks of "waters of the sea within the limits of the State", in the

last line of section 4(1). The first problem,

of course, is that we would submit there are not

any waters of the sea within the limits of Tasmania.

The question is just exactly what section 4(1) means.

It is difficult to find, in the case of most States,

waters of the sea within the limits of the State.

CIT14/l/JM	322	6/6/89
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The only State, as we follow it, in relation to

which waters of the sea on any view were regarded

as covered by the documents which provided for

the creation of the States would be South Australia, where the two gulfs were referred to in the creating

document. If it is helpful, Your Honours, there was a discussion of the precise way in which the

various States were constituted in the judgment of

Your Honour the Chief Justice in the SEAS AND

SUBMERGED LANDS ACT case, beginning at page 459

and proceeding through to page 461.

When one is looking to find waters of the sea within the limits of the State there would be

a question, for example, whether the waters of

either Port Phillip Bay or Sydney Harbour were properly regarded as waters of the sea within the limits of the State because, as Your Honours

will recall, the common law in relation to these
matters would have treated, say, tidal waters as
all being the property of the Crown, the tidal waters
of the rivers as being the property of the Crown
in the same way as the waters lapping the outer
shore of the various States were the property of

the Crown.

(Continued on page 324)

CIT14/2/JM	323	6/6/89
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MR CHARLES (continuing): Plainly enough, the waters of

Sydney Harbour and Port Phillip Bay are tidal.

There is a question whether the doctrine of being

within the jaws of the land would make the waters

of either of those major bays waters of the sea

within the limits of the State. That would require

an examination of what was said in RAPTIS V SOUTH

AUSTRALIA, 138 CLR 346. In our submissions,

the conclusions at which Your Honours

the Chief Justice came to at page 382 of that

report would have suggested that the waters

of those two areas, Port Phillip Bay and Sydney

Harbour, would not have been waters of the sea

within the limits of the State because they lapped

the land and only the land had been conveyed

by the creating commissions.

MASON CJ:  But that was a dissenting judgment.

MR CHARLES:  I accept that, Your Honour. I was just about

Sir Harry Gibbs, at page 359, and of to cite two other judgments, those of the two views being there set out.

The Court might well take the view that

notwithstanding the apparent absence of any waters

so far as Tasmania is concerned which could be

reg 9rded as waters of the sea within the limits
of the State, in order to give effect to
section 4(1) one has to treat the section as

saying that in relation to territorial waters

that the effect of the section has been a deeming

provision producing the same conclusion as ~ould

have existed in relation to South Australia

in relation to the two bays referred ta in the

creating document and treating those as waters

of the seas within the limits of the State.

DEANE J: 

Mr Charles, you have lost me, I am sorry .. What

about Bondi Beach if you draw the base lines?

Would you say that what is within the base line

is not water of the sea within the limits of

New South Wales?

MR CHARLES: 

We would say, Your Honour, so far as Bondi

Beach is concerned that the SEAS AND SUBMERGED
LANDS ACT clearly decided that those waters are

not within the limits of the State. That is the inevitable conclusion from the result in

that case.

DEANE J: 

I follow what you say.

MR CHARLES: 

Indeed, Your Honour, we find a reference to

internal waters in section 10 of the SEAS AND

324   6/6/89

Harper(2)

SUBMERGED LANDS ACT.	But, if I may say so, that
is a different question.	The difficulty

Your Honours, as we would submit that comes from

this, is the fact that there could have been no waters in relation to Tasmania that could have been regarded as waters of the seas within

the limits of the State. That does not mean
that the subsection mustnecessarily to be regarded

as ineffective and we recognize that the Court

might well wish to take a view that gave it effect

by treating it as deeming waters within the

territorial waters as being treated on the same

basis as the waters in the gulfs in South Australia.

Your Honours, the question then comes, having

looked at section 4(1): what is the ownership

that the State is given by section 4? And we

would submit, firstly, that so far as abalone

is concerned, no ownership of the abalone is

given by that section.by a process of taking
section 4(1) and with it the reference to the

sea bed in section 3(2)(b).

(Continued on page 326)

ClTlS/2/ND	325	6/6/89
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MR CHARLES (continuing): We will submit, in due course, that

if the legislation is effective that the TITLE and

POWERS ACTS give nothing more than a legislative

power to manage the fishing of abalone. Now,

Your Honours, alternatively, if some form of

ownership in the abalone is conveyed by section 4(1)

contrary to our submissions, then we would submit

that that ownership is subject to the public right -

the common right of piscary existing in the public -

with the Crown as parens patricE.

Now, Your Honours, for that submission, we would

rely on the existence of section 4(2)(a) because,

in any event.

The rights and title vested in a State under

sub-section (1) are vested subject to -

(a) any right or title to the property in the
sea-bed beneath the coastal waters of the State

of any other person -

We are assuming, ·for the purpose of this submission,

that the Court is saying against us that the passing ·

of some right and title in the property in the sea bed

passes something in the abalone. And we say,

Your Honours, that if it does then there is a well-

established public right in relation to those abalone -

the public right to fish - which is specifically

preserved by section 4(2)(a) and that that public

right subsisted immediately before the date of the

commencement of this Act.

McHUGH J:	But was it a public right in respect of the sea bed?
MR CHARLES:	We are putting it, Your Honour, that it is decided

against us that conveying the title in the sea bed

conveys something in relation to the abalone, treats

the abalone as part of it. If it does, then to that

extent, Your Honour, we say that there is a public

right in something that is part of the sea bed.

DAWSON J: It is a public right to fish but is what is fished

the property of the subject?

MR CHARLES:  We would say, Your Honour, that any right

to the property in the sea bed would include a public

right to fish in relation to that sea bed, so long

as the sea bed is regarded as including the abalone.

The next submission we make, Your Honours, is that

section 4(1) is curiously worded. It does not
attempt to do directly what might be expected; the

giving of complete right and title in the property

in the sea bed to the States. The section deliberately

chooses a different path, a form of deeming rather

than direct grant.

ClT16/l/DR	326	6/6/89
Harper(2)

It may be, Your Honours, that what the draftsman

of the legislation had in mind was concern with the

very existence of section 123 of the CONSTITUTION and

that they were trying to achieve, indirectly, what

they thought for some reason they could not do directly.

We would say that if that was what the draftsman had in mind that they could not, in that way, avoid the

operation of section 123. For that submission,

Your Honours, we would rely on what Your Honour the Chief Justice said in the SEAS AND SUBMERGED LANDS ACT

case in making reference to section 123 at pages 467-8.

The next matter, Your Honours, is that in any

event what has been done by a combination of

section 4(1) and (2) is that the Cormnonwealth has not

divested itself, completely, of its sovereignty - to

some extent that sovereignty has been maintained -

because the rights and title in subsection (2) are	then said to be 11vested subject·tou pre-existing
rights in subsection (a); "a right of the Commonwealth"
in certain areas in (b); and, "a right of the
Commonwealth to authorize the construction" in (c).

(Continued on page 328)

ClT16/2/DR	327	6/6/89
Harper(2)

MR CHARLES (continuing):  We would respectfully submit that

that is an uncomfortable and constitutionally

unauthorized hybrid because what one has, in our

submission, prima facie, is the Commonwealth

acquiring a place, the purposes are obviously

enough public purposes. We would say that the

acquisition occurred either at Federation or

in some time, which the cases suggest is
uncertain, but somewhere around 1929 to 1931,
or, alternatively, when the SEAS AND SUBMERGED
LANDS ACT was passed in 1973; but, that at
one of those three times, the Commonwealth

acquired the territory in these territorial waters.

Our submission would be that both acquisition and

place has been widely defined in the cases and
that that left the Commonwealth with an exclusive
right to pass laws in relation to those places.

Now, so far as - if I may simply flag this point, Your Honours - section 52 is concerned,

plainly the draftsmen of the legislation were
concerned that the territorial waters were a place
acquired in that way and bringing into operation
possibly the effect of section 52(i) because on

the next page, 238, section 7 of the TITLE ACT

makes direct reference to the COMMONWEALTH

PLACES (APPLICATION OF LAWS) ACT.

Now, Your Honours, in relation to what has been

said before, and the purposes for which the

Commonwealth acquired sovereignty, and the federal

purposes for which it might be thought the

Commonwealth as a nation State might require the

power to make legislation in relation to the
territorial waters, we draw attention to

section 4(2)(b) which preserves:

a right of the Cornmonwealth ..... to use

the sea-bed and space -

occupied by water above that bed - what is put is:

For purposes in relation to
communications, the safety of navigation,
quarantine or defence, and to place,
construct and maintain equipment and
structures for the purposes of such use.

Now, Your Honours, subsection (2)(b) in other

words has maintained a right of the Commonwealth

to use that land for certain purposes, but the

Court will notice that those purposes do not

include, or on the face of section 4(2)(b), do not include matters such as customs, the prevention of

ClT17/l/JH	328	6/6/89
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drugs entering into the country, or the revenue.

And, by further example, if one found in the

territorial sea surrounding Tasmania large

quantities of, say, uranium or platinum or some

other extremely valuable mineral, which might be

essential for some part of Australia's future

manufacture or production, say, for example,

aircraft manufacture, the matter of whether or not

that resource might be exploited would have become,

apparently by this section, in our submission, a

matter for Tasmania rather than for Australia.

BRENNAN J:  Mr Charles, to make good an argument under

section 52(1) of the CONSTITUTION, it would be

necessary to be satisfied that the places were,

in fact, acquired by the Coilllllonwealth.	You,
as I understood it, offered a series of

possibilities of the acquisition. I suppose

another possibility is that the area was not

acquired at all within the meaning of 52(i).

(Continued on page 329)

C1Tl7/2/JH	329	6/6/89
Harper(2)

MR CHARLES:  Your Honour, I accept that that is a possibility.

We would submit that the word "acquisition" or
"acquiring" in section 52, has been given a

wide definition in the cases, that one would expect

it to be given a wide definition in order to

capture places which have become, and if I could use

a different word, places of the Commonwealth for

public purposes. We wculd respectfully

submit, that no good reason could be found for

preventing the word "acquiring" from covering
something of this kind, certainly the making of a
declaration under the convention in the way in which
the SEAS AND SUBMERGED LAND ACT operated in relation
to the territorial seas.

We would submit, Your Honour, that there could be little obvious reason for saying that that was

not an acquisition to which section 52(i) had

applied, partly, Your Honour, because we would submit

that the thrust of the section is to refer to a

state of affairs after acquisition, rather than to

the fact of acquisition.

BRENNAN J:  Does it have anything to do with the infringement

of the rights of another party from whom property is

acquired?

MR CHARLES:  We would submit no, Your Honour, that there could

be little good reason for looking at the word

"acquiring" in refArenl'!e, say, to the purchase by the Commonwealth of land for public purposes. We

would put it, Your Honour, that the matter

particularly to which the section is referring is

the state of affairs existing once the Commonwealth

has obtained and become the owner of, or gained

possession of a place for public purposes, and

in circumstances where that is for public purposes

the Commonwealth's power to legislate	is then
made exclusive.

Now, Your Honour, we would submit that that

does not bear on the rights of the person from whom

the property has been acquired, it is not directed to

that.

DEANE J:  Mr Charles, does this argument depend on whether the

SEAS AND SUBMERGED LANDS case held that the Act was

declaratory or not?

MR CHARLES:	Not in our submission, Your Honour, no.
DEANE J:	I mean, I could follow it if the Act had been held

valid under the external affairs power, but if the

Act was h~ld to be simply declaratory - I am

a little :Jit lost about how it came to be acquired.

ClT18/l/FK	330	6/6/89
Harper(2)

MR CHARLES:  We would submit, Your Honour, that the word is

given a wide definition and it was never intended to
refer to something such as an acquisition by purchase.

It could cover, in our submission, an acquisition

where the Crown in right of the Commonwealth seized

property and declared an intention to use that

property. We would submit that it is apt to cover a

situation where an acquisition occurred by virtue

of the creation of the Commonwealth at the time in the Crown in the territorial waters then became
of Federation, if that calling into being of the

the property of the Australian Commonwealth.

Alternatively, Your Honours, our third

submission is that, in whatever may be described

as the process which in, at some time around

1929 to 1931, resulted in the Commonwealth becoming

a nation State entitled to maintain sovereignty in

relation to territorial waters. But that, equally,

is capably of being referred to as an acquisition,

simply, Your Honour, because, we would submit, that

there is no good purpose to be found in giving the

word a narrow definition that "acquired" simply r&=fers

to any means by wnich property becomes either

owned by or used exclusively by the Commonwealth for

public purposes.

BRENNAN J: Is it possible for an acquisition to

occur pursuant to a law of the Commonwealth, having

the effect for which you contend without the payment of

just compensation'(

(Continued on page 332)

C1Tl8/2/FK	331	6/6/89
Harper(2)

MR CHARLES (continuing):  The payment of just compensation,

as we would understand it, Your Honour, requires

there to be someone deprived of property

before placitum<xxxD can attach. In this situation,

we would submit that there was no question of some

other person being entitled to just compensation;

no question of an acquisition having that consequence.

I am reminded, Your Honour, that the precise words

of placitum (xxxi) talk of:

The acquisition of property on just terms from any State or person -

There is no question of a State or person here

from whom the property is acquired, we would submit.

May I remind the Court, while I have that

page of the CONSTITUTION open, the wording of

section 52(i) provides that:

The Parliament shall ..... have exclusive

power to make laws for the peace, order,

and good government of the Conn:nonwealth

with respect to -

(i) The seat of government ..... and all places, acquired by the Conn:nonwealth for public purposes.

In our submission, Your Honours, the word "acquired"

is not the word which has primary significance or

governs the operation of section 52(i). It may

be paraphrased, if I may do that, by saying,

"All places which have been acquired or obtained,

purposes 1.1 • or have become the Conn:nonwealth's for Conn:nonwealth

DEANE J:	One problem in this is that whatever strength
it might have in terms of other things, it is
really unthinkable that it was intended by the CONSTITUTION that the Conn:nonwealth should have exclusive
legislati~ power over territorial waters and the
sea bed under them.  It gets even stranger when
you look at the fisheries power.

MR CHARLES:  I accept that, Your Honour. The presence

of section Sl(x) indeed does make it strange.

That, Your Honour, by necessary implication,wewould say,

makes it clear enough that the State has a

power to legislate -;-rit:Hn those waters in relation

to fisheries and that in doing so it would be

legislating for the peace, order and good

government of the State in so doing, and to that

extent, section 52(i) inevitably has to recede.

The difficulty to which we are pointing, if I

may say so, Your Honours, in this section, is that

this is not an attempt simply to make provision

by legislation for the regulation of fisheries;

it is an attempt to vest title in the State of

CIT19/l/JM	332	6/6/89
Harper(2)

Tasmania, relevantly, and that in so doing, we would submit that that rests in some degree of disharmony with the provision which says

that the Connnonwealth shall have exclusive power

to legislate in relation to property. It certainly is not necessary - the passing of title - to enable the State to legislate in relation to fisheries.

It raises, Your Honours, problems of inconsistency

and matters of that kind to which we will return

later.

BRENNAN J:	Why should that be so? If one takes a lease that might be granted to a shopkeeper at an
airport, there is a disposition, one would take
it of leasehold and that does not in any way
affect the legislative power of the Connnonwealth under section 51( i).
MR CHARLES:	Indeed not, Your Honour, no.
BRENNAN J:	So, does it make any difference that a

freehold title is conferred?

MR CHARLES:  We would say, Your Honour, that the Connnonwealth

plainly has power to dispose of property. We

certainly are not seeking to suggest the contrary.

(Continued on page 334)

CIT19/2/JM	333	6/6/89
Harper(2)

MR CHARLES (continuing):  But it would be one thing,

Your Honours, to dispose, say, of property bought

in London for the purposes of an Australian
embassy or consulate there, quite another matter
for the Commonwealth to dispose of territorial

waters around Australia where there is no sense

of the Commonwealth dealing like a trading

corporation in relation to its property. What

beginning:

Once it is accepted that the boundaries

of the Colonies terminate at low-water mark

there is in my opinion no reason why the

Commonwealth's power to make laws with respect

to "external affairs" ..... should not be regarded
as conferring upon it a plenary power to
legislate upon the topic of the territorial
sea and its solum. There is abundant authority
for the proposition that the subject matter

extends to Australia's relationships with

other countries and in particular to carrying
into effect treaties and conventions entered

into with other countries, provided at any rate

that they are truly international -

Then, Your Honour goes on to say, referring to the

notion to read ''with all the generality which the

words used admit" and, Your Honour says, at page 471:

In order to cut down the meaning and

operation of the words it was suggested that

the words "external affairs" were selected

because the traditional expression "foreign

affairs" might exclude Australia's relationship

with ..... British Empire. This observation,

though it illuminates the motives which

actuated the selection of the words, does little to define their meaning and scope.

(Continued on page 409)

ClT63/2/SH	408	SIR M. BYERS, QC	6/6/89
Harper (2) ·

SIR MAURICE (continuing): Your Honour then goes on

with the other argument. I think there is

another passage, Your Honours, at page 497

there was another passage in the judgment of in the judgment of Mr Justice Jacobs and

will give Your Honours the reference?

Your Honour the present Chief Justice, which when I

MASON CJ:  Yes, Sir Maurice. The Court will now adjourn.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 7 JUNE 1989

CIT64/1/JM 409 6/6/89

Harper(2)