Port MacDonnell Professional Fishermen's Association Inc. & Anor v The State of South Australia

[1989] HCATrans 17

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A38 of 1987

B e t w e e n -

THE PORT MACDONNELL

PROFESSIONAL FISHERMEN'S

ASSOCIATION INC. and

RONALD OLLRICH

Plaintiffs

and

THE STATE OF SOUTH AUSTRALIA

and THE COMMONWEALTH OF

AUSTRALIA

Defendants

Special case

MASON CJ

MacDonnell

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 FEBRUARY 1989, AT 10.17 AM

(Continued from 15/2/89)

Copyright in the High Court of Australia

Cl Tl/ 1/SR 144 16/2/89

MASON CJ:	Mr Solicitor for New South Wales?
MR MASON:	If the Court pleases, a minor matter of construction

concerning the meaning of the words "adjacent to

South Australia". My submission is that the waters,

broadly in Discovery Bay, are capable of being

described as being adjacent to South Australia even

though they may also be described as being adjacent

to Victoria. To use an example, Your Honour the

Chief Justice is sitting adjacent to your brothers Brennan

and Deane and it would not be correct to say that

only the half of you closest to one of your bYothers

is adjacent - the totality of Your Honour is adjacent

to each. On the question of power there was some

discussion about the resolution of conflict between

the laws of two States which seek to reach out and

attach, in inconsistent ways, the same type of conduct.

In my submission, the resolution of that conflict in
a territorial overlap is no different to the resolution

of that conflict in an operational overlap and the

possibility of such conflict existing can be readily

acknowledged without the need for creating any special

rules. There is, of course, in this case no suggestion

of any conflict between a South Australian licensing

regime and a Victorian licensing regime over this

triangular shape of water which is of concern to the

plaintiffis.

BRENNAN J: Is that entirely accurate, Mr Solicitor? If one

creates a right of fishery or putting it more

accurately, if one confers licenses to fish as against

a general prohibition on those who do not have licenses

to fish, that is a right of a somewhat proprietorial

nature, in fact one might almost call it the Corrnnon of

piscary. And if you have got proprietary rights being

created, are they susceptible of creation by two

legislatures in respect of the same area.

(Continued on page 146)

ClTl/2/SR	145	16/2/89
Macdonnell

MR MASON:  In my submission, yes, and if the

enioyment of those proprietary rights is a legal
or-factual impossibility then there would be a

need to apply a rule for resolving the conflict between the two laws which give effect to those

rights. I would not concede that the present

situation involves that at all because all one has

is South Australian law saying, "Thou shalt not fish

in the whole of this area unless you have a licence

from South Australia" and Victorian law not

intruding into that area at all.

BRENNAN J:	But that is by a self-denying ordinance of the legislature, as if one approaches it on the
basis of State power.
MR MASON:	Yes.
BRENNAN J:	But if one says that the legislature of South

Australia and the legislature of Victoria both enjoy power to forbid the exercise of the right of fishing except under licence, in respect of those areas of water which are adjacent to both,

by reference to what principle does one reconcile

them?

MR MASON:  One would reconcile that by asking first

does each law have a sufficient nexus with the

enacting legislature and we are assuming that the

answer to that is yes; then, does the enjoyment

of the rights flowing from each law conflict, and

we are assuming that that answer is yes; then it

is a question of applying an appropriate rule of

private international law if that is applicable.

Now, that may say, for example, that if the right

is being enforced in the South Australian court you

disregard the penal law of Victoria, if it is

inconsistent, or it may not. The private

international law may not, certainly in an

Australian federal context, provide a resolution

of that conflict. You then proceed, in my submission, to

applying section 118 of the CONSTITUTION which,

prima facie, says that full faith and credit must

be given to the laws of both States in the courts
of each but which, when properly interpreted and

applied in the sort of situation we are concerned

with, have an ultimate rule which says that the

State with the predominant territorial nexus to the

particular activity sought to be controlled has the

prior right.

C1T2/l/HS	146	16/2/89
Macdonnell

MR.M.A.SON ( continuing):  Now, may I read a short passage from

the judgment of Mr Justice Deane in BREAVINGTON V

GODLEMAN, 80 ALR 362 to refer to a discussion of

that approach and then briefly say something about

the American law which has adopted a similar sort

of approach, although the detailed rules are

slightly different. The passage is at the bottom

of page 409. His Honour was speaking about the

legislative powers of the colonies and then the

States after 1900 and, at line 46, he said:

Viewed in that traditional context, the

constitutional solution of competition and

inconsistency between purported laws of

different States as part of the national law

must, where the necessary nexus for prima facie

validity exists, be found either in the

territorial confinement of their application

or, in the case of multi-State circumstances,

in the determination of predominant territorial

nexus. That would have been the position under

the provisions of the CONSTITUTION (in particular,

ss 106, 107 and 108) even if those provisions

had not included s 118. The presence of s 118

serves to make that position plain.

Now, it may of course be said that within 118 there is not expressly a set of rules as to resolving how

you give full faith and credit to clashing State laws

and yet there is, necessarily, inherent in the concept

of giving mutual recognition in a federal system, in

my submission, there is necessarily an idea that there

must be some method of resolving the conflict as a matter

of last resort.

BRENNAN J:  And do you embrace the criterion of predominant

territorial nexus?

MR MASON:  Predominant territorial nexus stressing that that

may change for one activity rather than another.

BRENNAN J: Of course.

MR MASON: If I can give an example: if Port Macdonnell is the

only port for a large area, it may be more appropriate

for South Australia in relation to fishing or sea

rescue to intrude further eastward than it might be
appropriate for the South Australian law in the event

of conflict with Victoria to intrude if the conflict

was over some other matter.

ClT3/l/SH	147	16/2/89
Macdonnell

DAWSON J: Is there necessarily a conflict? I mean, you can

require a person to have two licences, for instance.

MR MASON:	There is none in this case.
DAWSON J:	You are just assuming a conflict.

MR MASON:  Yes. The example given was if one State said you

must paint your sign in red and the other said you

paint it in green.	I think that was the example
that was given.	But here we do not have a conflict

and for that reason it is my submission that these

problems are not a present concern.

DAWSON J:  But you could have a situation that required two

permissions?

MR MASON:  Yes. There is, Your Honours, a brief note which we

have cobbled together rather hurriedly as an appendix

to this document. It is taken from the submissions
that were put in BREAVINGTON's case about some of
the American case law on the interpretation of the
full faith and credit clause and the resolution of

conflict in that. If I could just make two

corrections because we have had a closer look at

the cases overnight.

To proposition number 4 - I think that

proposition is more accurate if it stops in the

second line after the word "statutes" and the rest

is struck out. And in proposition number 6, in the
second line, I think it is more accurate if it read,

"but at least since all State insurance" because

if one reads the judgment in ALL STATE the supreme

court there drew on early authority to expound the

rule that is sUimnarized in proposition number 6.

Your Honours, if one needs to resort to the

COASTAL WATERS (STATE POWERS) ACT to give the State

Parliament the legislative authority to pass the provisions that it has done, one then turns to the

matters which are sUimnarized in paragraph 7 and	following in our written submissions and we say
that if, and only if, the State Parliament lacks
the power to pass the law which it has done with respect to these particular arrangements and these
fisheries then there has been a valid vesting of that power through the operation of the COASTAL
WATERS (STATE POWERS) ACT.

We submit that any legislative incompetence

that the State Parliament had on the hypothesis we

are putting was due to the doctrine of repugnancy

because it is from the words, "peace, welfare and

good government" that would flow the territorial

limitation, if any, upon the legislative power of

the South Australian Parliament.

C1T4/l/BR	148	16/2/89
Macdonnell

MR MASON (continuing):  Those words derive initially

from the imperial statute which constituted

the South Australian Parliament and through the COLONIAL LAWS VALIDITY ACT doctrine of

repugnancy those words cannot be overcome

and they would operate to invalidate a

State law that stretched too far.

There is no reason why a law validly

passed under 51(xxxviii) may not overcome that

repugnancy principle, in my submission, and

we would refer the Court to the discussion in the

CALTEX OIL case, CALTEX OIL (AUSTRALIA) V XL

PETROLEUM, (1984)	155 CLR 72, particularly
at pages 78, 85, 91 and 100.	The question there

was whether a law validly passed by the
Commonwealth Parliament pursuant to section 77(iii)

Commonwealth law was the later imperial

of the CONSTITUTION affecting appeals to the of the
Privy Council could override an earlier

imperial statute relating to appeals in the

statute, namely the Commonwealth CONSTITUTION,

that source was a stronger source than the

prohibition to be read in the COLONIAL LAWS

VALIDITY ACT concerning repugnancy.

We would submit that on the hypothesis

we are forced to make in this part of the argument,

the power to legislate extraterritorially by the

South Australian Parliament was one which

ex hypothesi could only have been exercised by

the United Kingdom Parliament because that

Parliament alone could have removed the repugnancy

fetter which it imposed when it constituted that

Parliament.

In our submission, turning to the top of

page 6, section 5(c) of the STATE POWERS ACT is

a law with respect to the exercise of power within

the Conrrnonwealth, those being the words which seemed

to have caused some difficulty, because the law

exercises the power within the Commonwealth.

Alternatively, if it be relevant, the law also
authorizes the exercise of powers by State
Parliaments which exercise necessarily occurs

within the Conrrnonwealth.

(Continued on page 150)

CITS/1/JM	149	16/2/89
Macdonnell

MR MASON (continuing):  Your Honours, may I hand up a

document relating to the Convention Debates which

deals with the contrary contention which emerged

in the writings of Quick and Garran.

MASON CJ:  Thank you.

MR MASON: It is in the supplementary materials for the

Commonwealth, at page 22, that the relevant part

of Quick and Garran is extracted and there the authors stated, at the very top of page 651 of

the text, that section 51(xxxviii):

does not enable the Federal Parliament to
pass laws with an extra-territorial operation;
the words "the exercise within the Commonwealth"

excludes such a construction.

That view has been repeated, as we point out,

in the writings of Dr Wynes and, in the article

on section 51(xxxviii) by Mr Booker. Our submission

is that the words within the Commonwealth,

particularly when viewed by reference to the

Convention Debates, have a rhetorical significance only and they serve to emphasize the disappearance of the former necessity to have such laws made
outside Australia.
In the document we have handed up to the Court just a minute ago, at the back of the document

is a further reproduction of Mr Craven's index

to the Convention Debates which Your Honours

already have. But, at the very last page, we

have ventured to add a corrigenda because there

are, from the detailed researches of my learned

junior, a number of specific errors in the material

that has been summarized in Craven's article

with respect to the Convention Debates.

We have in the document itself endeavoured

to summarize the progress of the bill into the

form that it eventually became in section 51(xxxviii)

and have attached copies of the key speeches.

The first, which is headed A, is the speech of

Sir Samuel Griffith in 1891 when he was, in effect,

giving the second reading speech with reference

to the clause then before the Convention and

we venture to underline the passages which stress that

what - the thrust of the speech is, "We

do not have to go over the water to do something.

We will be able to do it at home", that being the

interpretation we would seek to place on the

words "within Australia".

C1T6/l/SDL	150	16/2/89
Macdonnell

MR MASON (continuing): Sir Samuel Griffith, in his speech,

refer,ed to an earlier speech he had made in the

Convention Debates, that is extracted in B. Once

again, in the underlined words, this idea of no
necessity to refer to the British Parliament to do

anything, on pages 490 and 491 of the material that

has been extracted and if I may, I will let the rest

of the document speak for itself. Now from that

material, Your Honours, we would submit that Quick and

Garran were wrong when they suggested that

section 5l(xxxviii) and the words "within the Commonwealth"

operated as some fetter upon a State Parliament

pursuant to a power granted by section 5l(xxxviii)

legislating extraterritorially.

Your Honours, we then in section B of our submissions address the interpretation of the 1982

FISHERIES ACT provisions and we put two alternative

submissions. The first is that when the State Act

says, in effect, that the ambit of State power will extend

beyond the State to the limits defined in a particular

arrangement made with the Commonwealth, it was not

making that provision dependent upon the validity of

that arrangement as a matter of Commonwealth law.

Now, if I could just take Your Honours to the provisions

of the State Act again - the State FISHERIES ACT

and section 14 of that Act is one of the two ways in

which the territorial ambit of the State legislation

is extended. And section 14 provides that:

Subject to this section, where there is

in force an arrangement that provides that a

particular fishery is to be managed, .... the

provisions of this Act apply.

Our submission is that the words "in force" mean no

more than in operation in the sense that an

arrangement has been made subject to the formal

requirements to be found in the Commonwealth legislation.

(Continued on page 152)

ClT7/l/SR	151	16/2/89
Macdonnell

MR MASON (continuing): If Your Honours would return to

section 13, it is significant, in our submission,
that in 13(1) it provides that:

The State may, in accordance with section 12J of the Commonwealth Act, make an arrangement -

and, in subsection (2):

An arrangement may be terminated as provided

by the Commonwealth Act.

The fact that State law has mandated compliance with

the Commonwealth law in those subsections emphasizes
that it is concerned only with the validity which

State law affords to the arrangement proceedings and

is not dependent upon there being any Commonwealth

validity of the arrangement itself. Certainly there

must be the compliancewith the formal requirements

to be found in the Commnwealth FISHERIES ACTS but
that compliance flows from the fact that State law

has mandated it rather than that State law has made

the operation of its law conditional upon it.

In paragraph 11 we have reminded Your Honours of three cases where this Court has considered this sort

of situation. The clearest example is BROWN V GREEN,
(1951) 84 CLR 285. That was a case involving a

New South Wales Act which picked up provisions and

determinations that had been made under the Landlord

and Tenant Regulations during wartime. At the bottom

of page 288, the relevant Act is set out:

Section 4(1) of the Act provides that all determinations of fair rents made before the commencement of the Act ..... and having

force or effect in the State ..... shall

continue to have force and effect.

The argument was that the Commonwealth power -

defence power had wained at the time of the passing

of the State Act and, therefore, there were no

Connnonwealth determinations having force or effect at the relevant time. The Court held - and the reasoning is found at page 290 - that the State

law had, on its interpretation, not intended to

make its operation dependent upon the constitutional

or other validity of the Commonwealth determinations.

It simply intended to pick up whatever was found, as

it were, written on the statute book or written in

the registry of determinations without making their

legality a pre-condition.

ClT8/l/SH	152	16/2/89
Macdonnell

MR MASON (continuing):  Alternatively, we submit that in

any event the provisions of the FISHERIES ACT

dealing with the arrangements are clearly valid and

we submit that nothing in the FISHERIES ACT is

dependent upon section 5l(xxxviii).

Section Sl(xxxviii) is concerned solely with

State power. The FISHERIES ACT provisions, while

they contemplate a joint State/federal arrangement

are passed, and validly passed, pursuant to

section Sl(x) and section Sl(xxxix). We stress

section Sl(xxxix) because the key provisions we are

concerned with are section 121 which is the

roll-back provision which really is a provision

that says the general substantive provisions of

this Act do not apply in certain circumstances

and to certain fisheries, and that therefore may

properly be characterized, in our submission, as

being a law incidental to the operation otherwise

of the Commonwealth law validly passed under

section 5l(x), and we submit that therefore there

is not difficulty in any event about the validity of the FISHERIES

ACT provisions that deal with arrangements from

the Commonwealth's point of view.

If that submission is correct, then that is

a clear answer to the section 109 inconsistency

argument because, as other people have submitted,

what the Commonwealth sections do is to roll-back

the Commonwealth law creating a void into which

State law can enter without any concern over

section 109. Alternatively, as we put in

paragraph 14, if one puts the converse case based

on BROWN V GREEN, the reference to section 121 in

section 5A(2) of the Commonwealth Act does not make

the validity of any arrangement under the

Commonwealth statute law a condition of section 121

operating according to its terms; in other words,

if there has been a paper compliance with the

procedural requirements to make an arrangement,

then the Commonwealth law rolls back without

concern as to whether State law has been validly

invoked.

I just wish to say something about two

submissions by my learned friend the Solicitor-General

for the Commonwealth. In paragraphs 3 and 4 of

his precis he said that section 5(c) of the

STATE POWERS ACT could be justified on grounds

other than section Sl(xxxviii).

ClT9/l/HS	153	16/2/89
Macdonnell

MR MASON (continuing):  The first one was that it could

be justified as an exercise of Sl(x) power to

make a law with respect to fisheries, and

secondly, under external affairs. We would

ask the Court to look at the opening provisions

of the COAST.AL WATERS (STATE POWERS) ACT. Our su1:mission

is that ::me cannot characterize that Act as

being an act dealing with anything other than

State legislative powers. The long title of

the Act and the preamble, as well as the

operative terms of section 5 make plain that

it is concerned - concerned solely, in our

submission - with passing a law with respect to

the legislative powers of a State. It cannot

be characterised as a law with respect to

fisheries, nor as a law with respect of external

affairs.

We would submit that the external affairs

power cannot be invoke~ for two reasons

in addition to those that I have put. The first

is that, we would submit, as a principle of law,

if the Commonwealth expressly recites itself

into legislative power by means of a particular

placitum then it will be confined to validity according to the operation of that particular

placitum. We would refer in particular to

a passage in REG V PUBLIC VEHICLES LICENSING APPEAL TRIBUNAL EX PARTE AUSTRALIAN NATIONAL

AIRWAYS PTY LTD, (1964) 113 CLR 207 at

page 222. That case concerned section 19A

of the AUSTRALIAN NATIONAL AIRLINES ACT, which

is set out at the bottom of page 207, which

provided that:

Where the Parliament of any State has, prior to the cormnencement of section ten

of -

an Act referred to the Parliament the matter

of air transport then certain things shall take

effect. It was looking at section Sl(xxxvii).

At page 222, in the middle of the page, in the judgment of the Court, it is stated that:

It is to be noticed that s.19A(l) according to its terms operates only

where the Parliament of a State has by

a State Act referred to the Parliament

of the Commonwealth the matter of air
transport or the matter of the regulation
of air transport. It would be useless

therefore to say that that was intra vires

because the operation of the external

affairs power would support a provision not

so justified, assuming that to be so.

CITl0/1/JM	154	16/2/89
Macdonnell

Now, the only difference, in our submission,

between that case and this is that in that

case the reference to section 5l(xxxvii) was

written into the operative section. In our

case the reference is to be found in the

preamble of the Statute.

MASON CJ: It is a fairly substantial difference, is

it not? The operative provision, in effect,

is contingent upon a reference having taken

place.

MR MASON:	In the case I cited?
MASON CJ:	Yes.
MR MASON:	Yes, but it only becomes contingent because

one construes the operative provision that

way.

MASON CJ:  So that you have got to rely on the preamble

as a basis for implying a contingency in the

relevant operative provisions here.

MR MASON:  Not entirely, because I also rely on section 5

which by its operative provision confines

itself as a matter of characterization to

State legislative power which could not, in

my submission, be an external affairs. The

very arguments which we use to establish

that this is within Australia, for the purpose

of validity under section Sl(xxxviii) make it

difficult, in our submission, to accept that

it can be also characterized as being with

reference to an external affair.

Your Honours, lest it be thought that we

are being ungrateful at the Connnonwealth's

attempt to strap up our power by vitue of the

external affairs power, the concern is that

if my learned friend is correct, presumably	the Connnonwealth could under an external affairs
power restrict the external territorial ambit
of State legislative power and we submit that
the Connnonwealth cannot do that. It may do it
through the operation of section 109, by
passing an inconsistent law. It cannot do it by passing a law with reference to State
legislative power and leaving it at that.

Your Honours, our answers to the proposed

questions are one -

(Continued on page 156)

CITl0/1/JM	155	16/2/89
Macdonnell

DEANE J:  Mr Solicitor, if I could just take you back for a

second. I notice looking at the copies of the

Griffith documents from the Mitchell Library that he

was apparently the hand that changed the draft from

being the exercise within the Federation to the exercise

within the Commonwealth which possibly adds a little

significance to his comments that you referred us to,

the alteration is in his handwriting?

MR MASON:  But that presumably occurred at the drafting

committee stage that preceded the first convention.

DEANE J:  The other matter, while I am interrupting you, is

in ROBINSON the then Chief Justice took a view which

is inconsistent with later developments and

Mr Justice Jacobs and Mr Justice Murphy decided the

case by reference to the Crown's proprietary right or

whatever you care to put it. Mr Justice Gibbs and

and Mr Justice Mason alone dealt with the matter in

terms of principles which would seem to be now

applicable. What I wanted to ask you, after that long

introduction is, are there any other cases in this

Court dealing with the jurisdiction of the States in

relation to fisheries?

MR ~.ASON: 

There are, on our researches, passages that affirm

the power of the States and before them the colonies
to make extraterritorial fishery laws. In BONSER,

122 CLR - - -

DEANE J: 

No, I said after ROBINSON.

MR MASON: 

I am sorry.

MASON CJ: 

The previous cases are  referred to in the judgment

iri ROBINSON,

MR MASON:  Yes. No, the latest we have is PEARCE V FLORENCA

which was before ROBINSON and then UNION STEAMSHIP,

there is a statement in that about fisheries.

DEANE J: Is there, I do not think there is.

MR MASON:  No, I am sorry, as a general statement, I was

corrected, yes.

DEANE J:  I presume that you would rely on what was said by

Mr Justice Gibbs and by the present Chief Justice in

ROBINSON as being the correct statement of the law?

MR MASON:	Yes, and we have endeavoured to collect, at the bottom of page 2 of our submissions, the passages
which we do rely upon specifically relating to
fisheries.  Our answers then to the questions, we
submit, are (1)-, yes, (2) (a) and (b), yes, (3), yes, (4), no, and (5), yes, but we would just say this

ClTll/1/SR	156	16/2/89
Macdonnell

in relation to (2)(a) and (3), we give those answers

because of the particular form of (2)(a) which talks

about the power purportedly conferred and we would

just repeat what we said earlier on, that if in fact

the State had in 1980 the full plentitude of power to

enact a fisheries law with respect to the arrangements,

in other words, 200 miles out, then the consequence

of accepting that proposition may be a denial of the

power in the Corrnnonwealth under section 5l(xxxviii) to

vest that lm1. Now that does not necessarily mean

that (5)(c) of the Act is invalid, although the

reasoning in it could mean that. But it might certainly

mean that the question becomes unnecessary to answer

if the Court favourably answers our first proposition.

BRENNAN J:  But if section 5l(xxxviii) fails for that reason,

and neither ( x) nor the foreign affairs power support

it, is there any foundation for upholding the

validity of 5 (c)?

(Continued on page 158)

ClTll/2/SR	157	16/2/89
Macdonnell

MR MASON:  No, if State legislative power extends to the

full extent of Australian waters which, I think, is

the words in S(c) the answer would be no. But, of

course, we reiterate that nothing in the FISHERIES

ACT Commonwealth addresses a Sl(xxxviii) exercise and section 7B of the STATE POWERS ACT makes

plain that its operation is in addition to any

other State power that would otherwise exist. If

the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for the

Northern Territory.

MR PAULING:  Your Honours, the Northern Territory adopts the

submissions of the first defendant in the interveners

and has nothing to add.

MASON CJ:  Thank you, Mr Solicitor.

BRENNAN J: Even though it is not a State?

MR PAULING:  Yes, Your Honour.

BRENNAN J: And therefore does not have the powers which the

States have?

MR PAULING:  No, Your Honour, the exercise falls into two parts.

The 5l(xxxviii) exercise, of course, does not concern

the Northern Territory but the question of the

plenitude of the legislative competence of the

Northern Territory does arise in the same way as it

does for the States.

BRENNAN J: But how does it arise in the same way as the

States?

MR PAULING:  Your Honour, the whole question under the

SELF-GOVERNMENT ACT is the question as to whether

within the concept of peace, order and good

government of the Northern Territory there would be	sufficient nexus for the Northern Territory to pass	laws having extraeerritorial effect and in relation
to fisheries, for example. I do not know that I have
answered Your Honour's question.

BRENNAN J: Well, it is a very large question.

MR PAULING:  Yes, but it is one we are happy to avoid for the moment.

MASON CJ: Yes, I do not think we will delay you to engage in

a discussion on this, Mr Solicitor.

MR PAULING:	Thank you, Your Honour.
MASON CJ:	Mr Davies.

ClT12/l/BR	158	16/2/89
Macdonnell

MR DAVIES:  Your Honours, may I hand up some outlines of our submissions.

MASON CJ: Yes, Mr Solicitor.

MR DAVIES:  Your Honours, may I explain that when announcing our

appearance to support only the first defendant, I did

say "only" because of concern that the Connnonwealth

might seek to support the validity of the relevant

legislation pursuant to the external affairs power

which we would not adopt, and we do not, and we have some

submissions in our outline that Your Honours may

have already seen which are to the contrary. But,

of course, we are seeking the same result which is
to uphold the validity of the South Australian

legislation in the area, the subject of the

arrangement.

There is one other thing about our written outline I should explain. It does refer only to

the second arrangement. That is simply because, for

the future and, so far as we are concerned, it is

probably only the second arrangement which is

relevant, but the submissions which we make apply,

we think, equally to the first arrangement.

Your Honours will see from paragraph 1 that we seek

to support the regime of control under the

&>uth Australian Act on two bases, both of which have

already been outlined by others: the first on the

basis of the extraterritorial power of the State

of South Australia and the fact that the legislation

is not inconsistent with the Connnonwealth legislation;

and the second, on the basis of the implementation of

section Sl(xxxviii).

DAWSON J:  You put them as cumulative arguments. Are not they

really mutually exclusive arguments?

MR DAVIES:  They are in the sense that the second is not necessary if the - - - (Continued on page 160)

ClT4/2/BR	159	16/2/89
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DAWSON J:  If you are right about the first you cannot

have the second.

MR DAVIES:  In the sense that the second Act would only

operate if there was not power under the first.

Yes, that is so.

DAWSON J:  Yes, I see.

MR DAVIES:  If they appear to be cumulative, I do

not really intend that to be so - - -

DAWSON J:  You mean "or" and not "and"?

MR DAVIES:  Yes. Your Honours, the first reason, of course,

is based solely on the legislative power of the State and paragraph 2 says nothing that has not

been said before except, possibly, that we have

attempted to identify in that paragraph the facts

in the special case which supply the necessary connection and we would say that, indeed, they

show a close connection.

Could I just mention in that context a

question which Your Honour Justice McHugh addressed,

I think, to our learned friend, the Solicitor-

General for Western Australia, asking whether

Victoria could also legislate with respect to

the fishery. We would submit, with respect,

that on the facts in the case stated that would

not be so because the facts in the case stated

show no connection with Victoria and a very close

connection with South Australia.

GAUDRON J:  Would Victorian legislation survive section 109

in the present context? One would think not.

MR DAVIES:	One would think not if one restricts it to the facts contained in the case stated.
GAUDRON J: Well, in the absence of any arrangement, Commonwealth

law would prevail over the Victorian law.

MR DAVIES:  Yes. As to inconsistency in this case,

Your Honours, we submit that section 12 relevantly

withdraws from the field of the arrangement and

we have two bases for saying that in paragraph 3,

both of which, I think, have been identified
before. The first is that that phrase really

states a factual context in which the power is

withdrawn and, secondly, we say, in any event,

that if section 12L presupposes an arrangement

which is validly authorized by Commonwealth

legislation then the Commonwealth has power to
legislate for the arrangement under section Sl(x)

and consequently for the withdrawal of its power

from that area.

ClT13/1/SDL	160	16/2/89
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Your Honours, the second reason relies on

section Sl(xxxviii) and again what we say in

the first part of paragraph 4 and, I think, in

paragraph 4. 1, has already been said and we wish

to add nothing to what we have written there.

Can I take Your Honours then to paragraph 4.2

and the phrase "exercise within the Commonwealth". to the phrase "exercise within the Commonwealth"

and compare and contrast it with the phrase,

"exercised only by the Parliament of the United the same paragraph.

We submit, with respect, that "exercise within the Commonwealth" and "exercised only

by the Parliament of the United Kingdom" are

referring to the same thing, that is to the body

who is to exercise a power in each case and

contrasting one with the other, saying that,

"now the power is to be exercised by the Parliaments

within the Commonwealth" as opposed to as it

was before, "exercised only by the Parliament

of the United Kingdom". So we are saying, really,

that "exercise within" really means the same

as "exercise only by" in the second part of that

paragraph.

DEANE J:	Mr Davies, can I take you back to the discussion about alternatives or cumulative?
MR DAVIES:	Yes.

DEANE J: If you see section Sl(xxxviii) as being, in effect,

a dual legislative power which is,looking at

the drafting the way it seemed to develop,

that is a legislative power that can be exercised

by both Commonwealth and States though the procedure

is a request one,	would not the position be
this: that the constitutional framework is the

constitutional powers of both Commonwealth and

States. Within that framework, a section Sl(xxxviii)

law will operate, and it is neither here nor

there to say, "Well, would the independent power

be that of Commonwealth or State or Commonwealth

and the States", because all the identification

of Commonwealth and State legislative power does

is to define the framework with which a law at

the lower level under section Sl(xxxviii) must

operate? I do not know if I am being obscure

but, if that be so, I would have thought your
argument is a cumulative one in that it just
does not matter whether the States would independently

have legislative power?

C1Tl3/2/SDL	16 1	16/2/89
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MR DAVIES:  Perhaps it does not. All I was really saying -

I was talking, I think, in terms of the legislation

rather than constitutional power, Your Honour, and

I was simply relying on the fact that the legislation which formed part of their scheme seems to be intended

to operate only in the areas where the State does not, in any event, have extraterritorial legislative power.

DAWSON J:  But if the colony had power which, on your argument,

you would say it did at the establishment of the

CONSTITUTION, then the power would not be exercisable

only by the Parliament of the United Kingdom. That is

a pre-condition of the application of (xxxviii).

MR DAVIES: Well, it was perceived not to have that power at that time -certainly perceived not to have the power at that time.

DAWSON J:  Why?

MR DAVIES: Well, I am saying in terms of decided cases,

the general view at that time was that the colonies

did not have that extraterritorial legislative power.

DAWSON J:  Power to make laws with respect to fisheries?

MR DAVIES: Well, we would submit not, in the sense that the

cases reasonably seem to have been limited strictly

to the territorial boundaries of the colonies,

Your Honour. We would have submitted that but, even

with respect to fisheries.

DAWSON J: Are there any authorities whicn, you say, establish

that?

MR DAVIES:  Your Honours, I do not have them here at the moment.

No, Your Honour, I cannot tell you what they are at the moment. If I can, can I forward them to the

Court rather than delay Your Honour now?

DAWSON J: Yes, please.

BRENNAN J: Perhaps you might indicate whether there is any

difference between 1901 and, I think it was, 1914,

in the case of ATTORNEY-GENERAL FOR BRITISH COLUMBIA.

MR MASON: Yes. Well, our submission, really is, in effect,

that until, really, cases such as CROFT V DUNPHY

where there was a perceived view of a strict

territorial limitation but I will address that, if

I can, in writing to Your Honours at a subsequent

time.

Can I deal with one other matter with respect to

that provision and that is one which Your Honour

ClT14/l/SH	162	16/2/89
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Mr Justice Brennan raised yesterday and that is the

phrase "at the request or with the concurrence of the

parliaments of all States directly concerned" and,

in addition to the answer which, I think, the

Solicitor-General for the State of South Australia

gave, may I assume that, contrary to those submissions,

Victoria was directly concerned. We would submit that

in that event anyway it has concurred :in a legislative

scheme providing for arrangements with each State in

respect of fisheries in waters adjacent to that State

and so, within the meaning of that paragraph, it has

concurred if it is directly concerned.

Your Honours, the last point with which we deal

in our written outline is paragraph (xxix), the

external affairs powe~ and we rely upon the

characterization which, in effect, was adopted by

our learned friend, the Solicitor-General for

~ew South Wales, in submissions this morning, that is,

that it should be characterized as a law with respect
to the exercise of legislative power and that only

and that the FISHERIES ACT, in turn, is and is only

a law with respect to fisheries.

They are our submissions, Your Honours. Can I,

then, indicate what answers we think should be given
to the questions asked in the case. Question (1), yes;

(2)(a), unnecessary to answer or yes; (2)(b), yes; (3),

unnecessary to answer or yes; (4), no; (5), as to the

first part - that is, down to but not including the

words "by virtue" and following - yes, and the second

part, either unnecessary or both. They are our

submissions, may it please the Court.

MASON CJ:  Thank you, Mr Davies. Mr Williams, before the Court

calls upon you, there is one question I wish to put to

the Solicitor-General for the Connnonwealth so as to

afford him the opportunity of responding to something

that has developed in argument since he presented his

argument. (Continued on page 164)

ClT14/2/SH	163	16/2/89
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MASON CJ:  Mr Solicitor, in the event that the Court

were to hold the State of South Australia and,
for that matter, the State of Victoria has
legislative power to enact provisions covering
the fishery in this area, what do you then say

would be the consequence for section S(c) of the

COASTAL WATERS (STATE POWERS) ACT putting to one

side the other arguments you have to sustain its

validity based on fisheries and external affairs?

MR GRIFFITH:  Your Honour, I think our prime submission

would be that it would have no consequence adverse

to validity. It may be, Your Honour, that

the Court in the matter of discretion could take

the view that it was not necessary to answer a

question as to its validity.

MASON CJ:  Putting that aside, why would it not have an

adverse consequence for validity?

MR GRIFFITH:  Your Honour, firstly one could regard it

as a matter of making assurance doubly sure in

that we would suppose, Your Honour, that the

Commonwealth Act may be justified by reference

to the position of powers as at 1900. Now, in

some respects, Your Honour, any answer in favour

of State power involves the Court now looking at

the position of State power and defining it as it

is apprehended now. We would submit in the manner

that Justice Deane discussed in the BREAVINGTON

decision, Your Honour, that does not affect the

historical situation that at an earlier time,

particularly 1900, that - - -

MASON CJ:  Assume that argument were to be rejected, what

then?

MR GRIFFITH:  If that were to be rejected, Your Honour, it

may be that the Court would take the view that

section S(c) would not have had content in conferring

power on the States if they completely had that

power purported to be conferred. One answer to

that, Your Honour, is to say that section S(c) is

operating within the constitutional structure of

the CONSTITUTION and it is modifying that structure

on the basis of conferring power on a co-ordinate

basis between the States and the Commonwealth and,

we would submit, as a law going to that structural

disposition of power to treat in the States and the

Commonwealth there would be not reason not to accept

that provision as being effective according to

its terms in a formal manner to make amendment

to that structure.

DEANE J:  Another point is the one you make in your

original submissions and that is what is the

relevant characterization of this law.

Justice Dawson put it as a law in relation to

ClTlS/1/HS	164	16/2/89
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fisheries, but the relevant characterization here

may be, as you suggest, that it is a law conferring

a particular type of legislative power and authority

upon the States which obviously was a law of
a kind which only the United Kingdom Parliament

could make at the establishment of the Commonwealth.

MR GRIFFITH:  Yes, indeed, Your Honour. We would say

it could be put in that manner. But perhaps it

is sufficient to say, Your Honour, that the

provisions of particularly 5(c) do affect the

structural content of disposition of power,

particularly by reference to the position in 1900,

and on that basis, we would submit, it should be

regarded as valid, even if one may get support

for particular State action, say in this case,

by some alternative route. We would submit,

Your Honour, that does not mean that section 5(c)

should be held to have no content as going no

further than that which the States otherwise might

have been discerned by the Court to go.

BRENNAN J:  What is meant by "structural disposition of

power"?

MR GRIFFITH:  Your Honour, what we would submit is that so

far as section 5(c) is concerned, it confers a power on the States to legislate in respect of the matter covered by the parts of paragraph 5(c)

but on a basis of that power is not to be an

exclusive power of the States but one which also

remains as a power exercisable by the Commonwealth.

Absent that, Your Honour, the position would be

the Commonwealth would have the exercise of the power and, of course, then one must consider the

issue absent that would the States have any

legislative authority in the area. Perhaps at

that stage we are becoming somewhat circular.

BRENNAN J:  ls it inherent in your submission that each

of the paragraphs of section 51 extends to the
support of a law of the Commonwealth which vests

power with respect to those subject-matters in the

parliaments of the States?

(Continued on page 166)

C1Tl5/2/HS	165	16/2/89
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MR GRIFFITH: That was not intended to inherent in the

submission, Your Honour. We would regard the

power under placitum (xxxviii) as a peculiar
power. We were seeking in our submissions,

Your Honour, to have regard to the exercise

of that power. It is a power rarely exercised.

This is an occasion for its exercise but it

has been exercised on the basis, Your Honour,
of not merely conferring a power on the States

but doing it on the basis of not withdrawing

from the Commonwealth such power as the

Commonwealth has in the area. Of course, as

at 1900, Your Honour, it would have been

possible for the Imperial Parliament to have

vested such a power, one would suppose,

exclusively in the States. Of course, the

CONSTITUTION effected that, but at the time

of the CONSTITUTION.

I am not sure if that answers sufficiently

Your Honour's inquiry, but our submission is,

Your Honour, that there is no occasion for

section S(c) to be regarded as invalid, in effect,

as being otiose.

MASON CJ: Yes. I think you have covered the ground,

Mr Solicitor.

MR GRIFFITH:  As the Court pleases.

MASON CJ:  Thank you. Mr Solicitor for South Australia,

the Court should extend the same opportunity

to you in relation to this topic.

MR DOYLE:  Your Honour, in putting the matter to my

learned friend, postulated the rejection of a

number of submissions and I am not too sure

how many were postulated as having fallen

by the wayside, but if I could simply say

that, in our submission, section S(c) is to be

characterized either as a law with respect

to State legislative power, or alternatively as a law with respect to the exercize of the

power to legislate extraterritorially generally

and is not to be characterized as a law with respect

to fisheries extraterritorially. So even if

the States could legislate extraterritorially

with respect to fisheries, that is not the

power being exercised by section S(c) and subject

to that I would, with respect, adopt the

submissions put the Solicitor for the Commonwealth.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Williams.

MR WILLIAMS: 

May it please the Court, by way of reply,

in my submission, there is one short answer to
everything that ha-s been put to the Court in

opposition to my argument.  I have written down

CIT16/l/JM	166	16/2/89
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several words by way of heading. I have

written down the word "retraction" on the one

hand, and "flexible application and particular

fishery" on the other hand. Now, of course, when

I refer to "retraction" I am, of course,

referring to the proposition that flowed right

through many of the submissions that have been

made against me saying, in effect, that section 121

of the Commonwealth FISHERIES ACT operates as

a retraction, or as a roll back, or as a withdrawal

from the relevant field.

When I refer to "flexible application and

particular fishery", I am, of course, referring to

the approach taken by my learned friend, the

Solicitor-General for South Australia who, in

relation to the Commonwealth FISHERIES ACT, claims

that adjacent area can be regarded as something

that gives a flexible application and not

necessarily an area which will be defined in a

particular case. He also says that there can be

a particular fishery which is identifiable

otherwise than by metes and bounds.

Now, my short answer to the Court on all

this is this: that section 121 operates in a

negative fashion so as to withdraw the operation of

Commonwealth law from a particular field in a

particular way. But that is the negative operation

of the Commonwealth legislation. There is a

necessary positive application of the section and the necessary positive application of the section

is contained in section 12H(4). Now, I say that

there is a necessary positive application of law

in section 12H(4) because otherwise the Commonwealth

would withdraw from a field under 121 so as to leave

State law generally to operate and there is no

reason when the Commonwealth has withdrawn from the

field by making an arrangement with one State,

it is withdrawn and that is the end of it. (Continued on page 168)

CIT16/2/JM	167
Macdonnell

MR WILLIAMS (continuing): There is no reason, on that basis, why two States cannot come in and operate in respect of the particular area from which the Cormnonwealth

has withdrawn and I thought that Your Honour

Justice Gaudron; earlier when you mentioned the powers

of the State of Victoria in relation to section 109,

might have been having this sort of thing in mind

because,in my submission, once the Cormnonwealth withdraws

from the field it leaves the way open for the States

generally to come into that field. But the intention

of section 12H(4) is a positive one. That the

Cormnonwealth may make an arrangement with a State

with respect to a particular fishery that the fishery

is to be managed in accordance with the law of the

State. So that the legislative intention, in my

respectful submission, is that section 12H(4) is a

positive indication that what is intended is a

compact between the Commonwealth and a State and

that compact has intended consequences. The intended

consequences are that the particular fishery is to

be managed in accordance with the law of the State -

that is the State with which the compact is being

made.

Now, if my learned friends are right in saying

that section 121 operates so as to retract, they are

simply leaving the field open in such a way that
given the wide powers of nexus for which they would
argue and certainly around about State borders the

arguments may be open, that the competing States would

come in and legislate in circumstances where

the Commonwealth has withdraw but in the face of

the intention of the arrangement positively that an

arrangement should operate with a particular State.

So that is my short answer to the contentions which

flow right through the submissions that the

arrangement operates merely by way of a retraction.

Yes, I accept it operates by way of a retraction but,

as I put in my original argument, the arrangement is

an arrangement comes into effect and as a result of in force and this is the way in which it is in force:	that arrangement there is triggered the operation of
the COASTAL WATERS (STATE POWERS) ACT.

When we get to the COASTAL WATERS (STATE POWERS)

ACT, that does not have in it the definition of

"fishery" that is contained in the Connnonwealth Act.

(Continued on page 169)

ClT17/l/SR	168	16/2/89
Macdonnell

MR WILLIAMS (continuing):  The STATE POWERS ACT in section S(c)

says that the legislative powers extend to the

making of:

laws of the State with respect to fisheries

in Australian waters -

so that we are thrown back upon general concepts as

to what a fishery might be. And my submission is
that the Court should have regard, for example, to

what was said by Mr Justice Windeyer in BONSER V
LA MACCHIA, 122 CLR 177, at page 211 point 8.

At the beginning of his judgment he said:

In law a fishery means, and since the

Middle Ages - when the word appears as

pescharie, or peskerye or with other

spellings, or as piscary - it has meant

the right or liberty, of the public or a

particular person, of fishing in specified

waters.

Now, my submission is that in order to give effect

to the COASTAL WATERS (STATE POWERS) ACT, it will

only be given effect to in terms of specified waters.

So that my argument is the arrangement operates as

more than a retraction. It has that negative

effect but it has a necessary positive effect and

having that necessary positive effect, it then picks

up the COASTAL WATERS (STATE POWERS) ACT with the

requirement of a fishery being identified in order

to bring it into effect.

Now, just moving away for a moment on to the

argument that fell from my learned friend the
Solicitor-General for South Australia. In answer to

Your Honour Justice Brennan, he said that a fishery

could be identified - could be - otherwise than by

reference to metes and bounds and undoubtedly the

Connnonwealth FISHERIES ACT does so anticipate.

(Continued on page 170)

ClT18/1/BR	169	16/2/89
Macdonnell

MR WILLIAMS (continuing): In 12A(3), it says:

The matters by reference to which a fishery may be identified in an arrangement ..... those

matters -

may -

include all or any of the following:

(a)	a species of fish;
(b)	a description of fish ..... ;
(c)	an area of waters ..... ;
(d)	a method of fishing;
(e)	a kind or class of vessels;
(f)	a class of persons;
(g)	a purpose of activities.

Well, there will be circumstances in which it would

be appropriate to describe a fishery not by metes and

bounds but by reference, for example, to a class of

fish. To take a hypothetical example, let us assume

that in South Australia and, let us say, Kangaroo

Island which is a very special place, we have an

environment where a particular species of fish is

to be found because of the ecological factors.	It
cannot be supported anywhere else. It is known

that to be the case because of the particular situation

in that case. If the fish - this special exotic

species - is only to be found in that place, then it

would be quite appropriate to establish a fishery and

identify it as the fishery by name for this particular

exotic fish and there would be no need to go further

because we know, from what I have hypothesized, it
only exists in this particular area, so that I

accept that, for the purposes of Cormnonwealth law, there may be circumstances in which so to describe

a fishery may be appropriate but for the purposes

of the present situation, my submission is that

the Court should say that what Parliament has

envisaged is that there should be a particular

fishery identified and that it should be identified

by reference to metes and bounds.

If this is done then there is no question that arises of the full faith and credit clause and the

way in which the conflicts between the various States

are going to be resolved. The Cormnonwealth simply assigns a particular area to the State as the area within which it may operate and that is the end of the matter.

ClT19/l/SH	170	16/2/89
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MR WILLIAMS (continuing): There was a lot said in opposition

to me. In fact, I almost might think that some of
my friends had put their heads together in using

the word "retraction" in all their submissions. It

appears in writing, I notice.	A lot has been said
that it operates by way of retraction.	I suggest that

perhaps that has been the advocacy of the case to

impress upon the Court that it operates by way of

retraction. But nothing has been said as to why this

Commonwealth Act in section 12H does not operate

positively. And the answer which I now give to the

Court, in my submission, is the rationale for my
submission that the Court must regard section 12H(4)
as a positive enactment and that to go back to my
watershed argument, it does not then allow the

Court to follow the path of simply following through

the question as to whether there is sufficient nexus

and deciding that - let me say against me- and then

not having to decide the other question.

My submission is that the primary question before

this Court is the watershed question and that the

Court in answer to that can answer the question only

one way. Namely, that section 12H(4) does have a

positive effect and because it has that positive effect

it does not leave room for the retraction argument

as itself to stand by itself. And that that then

means that what was intended was that this compact

in section 12H(4) has intended consequences. The

intended consequences are that the arrangement will

pick up power from the COASTAL WATERS (STATE POWERS) ACT.

That is the argument, really, by way of reply. And,

of course-, if that argument is correct, the question

of section 109 stands firmly in the paths of my

opponents. There were several times it was said, "Well,

of course, we can follow this other path and there

is no question of section 109 arising", but my submission
is the section 109 argument stands there; the

question of nexus argument really just does not

arise. So that in that circumstance the Court is,

in my submission, thrown back to looking at the

COASTAL WATERS (STATE POWERS) ACT as to whether or

not it is within power.

I have made my submissions on that topic. All

I want to say by reply, is to adopt what has been

said by Mr Booker in his article in 4 UNSWLJ,at page 91,

which was included on the list of authorities, I

am very grateful to say, by the Commonwealth.

(Continued on page 172)

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MR WILLIAMS (continuing): Now, Mr Booker, in that article,

simply argues for the invalidity of the COASTAL

WATERS (STATE POWERS) ACT under section Sl(xxxviii).

I adopt what he has to say. He, at page 94,

deals with the possible interpretations of the

words "within the Commonwealth". He deals with

four reasons and he gives his reasoning as to

why the submission which I made originally should

prevail. He then goes on to deal, at the end

of his article, with the justification of the

COASTAL WATERS (STATE POWERS) ACT under other

sections of section 51, for example, external

affairs power.

I have already made my answer to that based

on DIGNAN's case.	I do not wish to add further
to it.	My submission, at the end of the day,

is there is a stumbling block to the arguments

of the States and the Commonwealth and that there

is no answer at all that has been advanced to

suggest that that is not so. That is my submission,

if the Court pleases.

There was one matter, perhaps, I could just

mention by way of supplement. I should, perhaps,

acknowledge that at the end of my written material

that I put before the Court before the case started,

there is a table that shows formal intergovernmental

arrangements under the FISHERIES ACT. I included

this so that the Court might see the extent of
the interests of other States and as to the problems

which we were facing in South Australia. I perhaps

should acknowledge the source of that material,

at least in part. There has been a substantial

article written by Mr John Waugh of the University

of Melbourne, and he has written a little book

called, "Australian Fisheries Law", which I found

quite useful as a background introduction to

the topic.	He did include, at the end of his
book, a table constructed along the lines that I have adopted, and I should acknowledge that	as a starting point but, in fact, his book was
written some time ago and I have, myself, updated
the material so to bring it right up to date.
The Court, for the purposes of this case, should perhaps be aware of the relevant arrangements.

(Continued on page 173)

ClT21/l/SDL	172	16/2/89
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MR WILLIAMS (continuing): If the Court would turn to page 16

of that original material, the Court will see against

South Australia:

Rock lobster fishery by pots or diving

in waters adjacent to State.

That was the original arrangement which is before

this Court. Then on the last page, 19, the very

last arrangement is the other arrangement that is

now before the Court:

South Australia -

and I have called it -

Rock lobster in defined area.

I do not know that my frien~ the Solicitor-General
for South Australi~ would necessarily agree with that

description but certainly there has been an area

defined in the arrangement itself. In conjunction

with those two arrangements the Court might wish to

have regar4 on page 1~ to Western Australia where

half-way down the page there is a reference to:

Rock lobster in waters adjacent.

That means that the arrangement with Western Australia

is in the form of the first South Australian arrangement,

that is, no metes and bounds being identified. However,

below that there is an arrangement with Victoria for
rock lobster and I do not know whether it has been

completed in Your Honours' copy but it is:

Rock lobster in defined area -

there should be some ditto marks there.	I hope
they have been corrected on Your Honours' copy.	So
originally had the first arrangement in an area
that we have a situation where South Australia

adjacent - no further definition. It then makes the

second arrangement with a definition. Western

Australia has the general words of the "adjacent area".

Victoria, on the other hand, does have an area

defined in its rock lobster arrangements.

So it is against that factual background that

we ask the Court to consider the questions which

have been raised and to treat them all as very much

live issues. I think that is all I wished to say.

(Continued on page 174)

ClT22/l/BR	173	16/2/89
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DEANE J:  Mr Williams, could I just ask you one question

about your chart 1 and chart 2.	Have you got
those?

MR WILLIAMS:  I am sure someone will put them in front

of me and I think I know - perhaps if Your Honour

proceeds 1 - - -

DEANE J:  What 1 was going to ask you was this: my

understanding of international law, which is not

profound, was that looking at chart 1, under

international law, if you were working on the basis

of a three mile territorial sea the dividing line

would be a perpendicular line from point c?

MR WILLIAMS:	Yes.
DEANE J:	Where has this equidistant line come from? ls is just a pragmatic thing, or - -
MR WILLIAMS:	First of all, in my reading material

DEANE J:	1 do not want you to take time.	I just
MR WILLIAMS:	No.	In my reading material - it is in the

list of authorities - I have referred to a textbook

that suggests that sometimes as between adjacent

States an equidistant line will be used.

DEANE J:	But that is within territorial waters, is it not?
MR WILLIAMS:	No, this is between adjacent States in terms of - I suppose it would be.
DEANE J:	Because the territorial waters is territory,

so once you are dealing with international

States, once you go beyond territorial waters the

equidistant approach leads anyway to a

perpendicular line from the relevant base line.

MR WILLIAMS:  Yes, and of course I think the reference

does make the point that it is done by agreement

between the States and they will go about it various

ways, but I simply was seeking to draw the analogy

that the suggestion I have made is not just

something that has been pulled out of my head.

There is at least some rational basis for using

an equidistant line, but then having said that

in answer to what Your Honour has said, yes.

I suppose in international law one would have

expected to find a closing line, probably as PQ

and you would probably go at right angles to PQ

or to the general line of the coast.

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DEANE J:	Or would you not move RS out 12 miles?
MR WILLIAMS:	Yes.
DEANE J:	And then take a vertical line from where your
equidistant line struck that 12-mile line?

MR WILLIAMS:  Yes, I accept that, Your Honour. But I

think the line D - - -

DEANE J: That answers my question.

MR WILLIAMS: If I could just add, sir, DE, I think, is

at right angles to PQ by reason of the way

it has been constructed equidistant from

Duquesne and Northumberland. But, I think,

with respect, this is a sort of compromise

that has been drawn, waiting until the line

gets about half a mile out from being in a

true position and then they gradually correct

it back again. Obviously, in order to be

exactly equidistant, there would need to be

innumerable reference points, having regard to

the fact that the shape of the coast is

changing in a continuous fashion.

MASON CJ:	Mr Williams, I think your junior has some
suggestion for you.
MR WILLIAMS:	No, there is nothing further that I wish

to put to the Court.

MASON CJ: Thank you, Mr Williams. Yes, Mr Solicitor?

MR GRIFFITH:  Your Honour, just an issue from that which

arose from His Honour Justice Deane's question.

MASON CJ:  Yes.

MR GRIFFITH:  As to equidistant lines, I followed the

plotting of the chart of equidistance by

a map which produced our exhibit and

in fact the process seems to be that one moves

out from the shore taking compass arcs from adjacent land areas and the effect of doing

that is that as one gets further offshore, land

areas further away can come to influence the

point of equidistance. So, for example, in the

case of the map which we produced, as one went

further out, the line which was more or less

perpendicular was pushed over by taking the

reference point from Cape Bridgewater as an arc,

so that in fact when one charts these up as a

matter of equidistance according to, we would say,

even international law for international adjacent

States, one finds that the line of equidistance

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is not a prolongation of a perpendicular, but

a moveable line. One can see the actual arcs

which were taken by the cartographer in this

case on the chart which we produced, to produce

the gradually circling around line as he got

further offshore by that process.

Perhaps if I could give the Court a

reference to Churchill and Lowe, "The Law of

the Sea" second edition, at pages 154 to 155,
there is there a description of the territorial

sea boundaries so far as international States are
concerned. It may assist the Court if I make

photocopies of that available to the Court.

MASON CJ:  If you would, Mr Solicitor. The Court will

consider its decision in this matter and

adjourn until 9.30 am tomorrow in Sydney and

10 am here in Canberra.

AT 11.42 AM THE MATTER WAS ADJOURNED SINE DIE

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