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

[1989] HCATrans 16

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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

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

Macdonnell

McHUGH J

TR~NSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 FEBRUARY 1989, AT 10.17 AM

(Continued from 14/2/89)

Copyright in the High Court of Australia

ClTl/1/SH 47 15/2/89

MASON CJ:	Yes, Mr Williams.
MR WILLIAMS:	May it please the Court. There are a couple

of matters that I wish to refer to that had occurred
to me overnight, if the Court pleases.

Firstly, in answer to a question raised by His Honour Justice Brennan yesterday, I was asked,

in effect, the foundation for my assertion of

limiting the offshore jurisdiction of a State in the

way in which I had indicated. There was one reference

which, perhaps, I should draw attention to. It is

only a passing reference but the suggestion is that

in circumstances such as I was dealing with it may

be that the full faith and credit clause in the

CONSTITUTION may provide an answer. So that, if that

were so - and that arises out of a statement made by

His Honour Justice Zelling in our Supreme Court. I

found the reference in HODGE V CLUB MOTOR INSURANCE,
2 ALR at page 435. In that particular case,

His Honour just made a passing reference in the case

of a conflict and he says:

If there was such a conflict, one would have

to go on and consider the effect of s 118 on

conflicting "sister-State" statutes, a

matter which has caused much judicial debate

in the United States.

(Continued on page 49)

ClTl/2/SH	48	15/2/89
Macdonnell

MR WILLIAMS (continuing):  I notice that there is a case of

ALASKA PACKERS V INDUSTRIAL ACCIDENT, 294 US 532.

Apparently the United States has had to face this problem in some detail and, reading that case simply as an example, it would seem that the Court must

ultimately be left with examining the particular

situation and deciding, in effect, the law which

ought to prevail in the circumstances. My submission

would be it is getting very close to the sort of

nexus argument which I am seeking to put before this

Court.

However, in my submission, we never really get

to that situation because I accept that before Federation

there is no doubt that the individual colonies could

have passed laws on the face of it which impose

conflicting obligations on a citizen. It may be

unfortunate but one Act might impose an obligation

based on domicile, another Act impose a conflicting

obligation based on residence.

It may be that, in those circumstances, if a

court were faced with a factual situation it might

try to lessen the nexus in a certain way to alleviate

the situation but, in principle, I accept that there
is the possibility for that conflict. I would say, though, that the Court in a situation such as this,

quite apart from considerations of Federation, would
construe legislation in a way so as not to give it

an extravagant area of operation and that in itself

would alleviate the problem.

But if the problem is not thereby alleviated,

and I say this situation that we are faced with today

is one which can simply be resolved by limiting the

States in terms of a non-extravagance doctrine, it

would be possible to solve it by then moving into

the Federation sphere and applying section 118 of

the CONSTITUTION where the Court, in my submission,

would have to spell out a doctrine which would be
not dissimilar to the nexus doctrine for which I

am advocating. (Continued on page 50)

C1T2/1/SDL	49	15/2/89
Macdonnell

MR WILLIAMS (continuing):  The learned Solicitor-General

for the Commonwealth, Dr Griffith, overnight has

handed me a plan which I understand he will make

available to the Court later, which shows the

equidistant boundary, as I have described it, between

South Australia and Victoria in terms that are

slightly more accurate than shown on the

lines ABCDEF that I have mentioned. Now, I am

quite content, for the purposes of my argument, to
accept the amended line as being more exactly

equidistant. It does not look to me to be more than

a mile or so - perhaps a little more than that -

involved in the adjustment, but certainly if that
adjustment were made it would tend, if anythin& to

move - yes, it has been handed to me on the basis

that I may hand it up, which I do.

MASON CJ:	Thank you.
MR WILLIAMS:	We will see on the right the line,

"Adjacent Area Boundary", which I have described, and

a line put generally slightly to the left or west

of that showing an "Indicative Equidistance South

Australia/Victoria". On that footing the

jurisdiction of South Australia would be slightly

less overall than the area for which I am contending

but it really in principle makes little difference

in terms of the principle. While I am talking about

adjacent areas, there is one further point that

I should also make by reference to the COASTAL WATERS (STATE POWERS) ACT. In discussing that

yesterday, section 5, I perhaps should have drawn
the attention of the Court in section 5 to three

different concepts which are apparent in

section 5(a), (b) and (c). Section 5(a) is dealing

with the coastal waters of the State themselves:

The legislative powers ..... extend to the

making of -

made by virtue of those powers if the

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

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,
and the airspace above, the coastal waters
of the State.

-

(Continued on page 51)

ClT3/l/HS	50	15/2/89
Macdonnell

MR WILLIAMS (continuing):  So there we are dealing, in my

submission, with the coastal waters themselves but

are limited within the adjacent area boundaries

that I have previously discussed.	Then in (b) we
have a different area:

laws of the State having effect in or in

relation to waters within the adjacent area

in respect of the State but beyond the outer

limits of the coastal waters of the State, -

and that is the concept -

including laws applying in or in relation
to the sea-bed and subsoil beneath, and the
airspace above, the first-mentioned waters,
being laws with respect to -

(i)   subterranean mining from land within the

limits of the State; or

(ii)  ports, harbours and other shipping

facilities, including installations, and

dredging and other works, relating thereto,

and other coastal works

Now, that is a grant of power with respect to the

adjacent area itself. We have first of all dealt
with the coastal waters limited so far as their ends

are concerned by the limits of the adjacent area

boundaries. We are now dealing in (b) with the

adjacent area itself and (c) deals with:

laws of the State with respect to fisheries

in Australian waters beyond the outer limits

of the coastal waters of the State

Here, significantly, there is no mention of 11within	the adjacent area in respect of the State 11 , so it
might be said, how can my argument in (c) apply?
Well, the fact of the matter is that the limitation
in (c) is in respect of Australian waters and in terms
of this case, of course, we are limited to an area
that only goes out to 200 miles. Now, we are simply
not looking at the same concept at all. The adjacent
area, of course, as I indicated in my argument
yesterday - if I can just turn up the limit of it - yes, the adjacent area I mentioned yesterday goes
down to 44 degrees south.

ClT4/l/BR	51	15/2/89
Macdonnell

MR WILLIAMS (continuing):  Now my submission therefore is that

what is intended here in (c) is to limit the State

in an ambit that has got~ relation~hip to the

coastal waters of the State and requiring that those

laws be with respect to fisheries in Australian waters

beyond the outer limits and I have already given my

argument as to what that means, namely moving further

to seaward and not towards a neighbouring State. Now

with those remarks out of the way, I would turn finally

to the application of the COASTAL WATERS (STATE POWERS) ACT

and it is my submission that that Act, which is

purported to be justified by section 51 (xxxviii) of

the CONSTITUTION is in fact not so justified. It is

my submission that properly construed the placitum was

intended merely to remove certain disabilities suffered

by the individual colonies, as at Federation. In

KIRMANI's case, 159 CLR at page 372, the reference is

on my reading list, Mr Jw=:tice Gibbs said:

the Commonwealth Parliament could, at the
request of the State of New South Wales, exercise

the power which could have been exercised in

1901 by the United Kingdom Parliament to repeal

Pt VIII of the MERCHANT SHIPPING ACT in so far as

it is part of the law of New South Wales.

The typical case, in my submission, to which this case

must be seen as referring is, and I am going to take

simply as my example a case which arose in South Australia,

the argument was ultimately unsuccessful but that is -

beside the point to demonstrate the point of the argument.

The case of GILBERTSON V SOUTH AUSTRALIA, (1978) AC 772.

The question arose and was dealt with by the

Supreme Court of South Australia. Two judges, Justice Wells

and Justice Zelling accepted the argument which was

put in that case. The remainder of the court dismissed

the argument as did the Privy Council.

(Continued on page 53)

ClT5/l/SR	52	15/2/89
Macdonnell

MR WILLIAMS (continuing):  But the point at issue is

nevertheless demonstrated by that case because
the case, in my submission, ultimately turned
on a question of statutory interpretation of the
relevant statutes that were before the court and

not upon the basic principle for which the

plaintiff was there contending.

The argument which was point in essence

was this, that the Supreme Court of South Australia
was being invested by an ELECTORAL BOUNDARIES

COMMISSION ACT with a power of review of the job

done by an Electoral Boundaries Commission. This,

it was argued, was not a judicial function, having

regard to when one saw the way in which the

commissioners had to go about their job. The argument

was that there could be no power of appeal to the
supreme court in such a matter because the Supreme

Court of South Australia was limited to a judicial

function. This was not a case in which it was sought

to impose upon the judges of the court a power

personae designatae individually to deal with a

particular situation; it was a right of appeal

given to the court itself. Now, the argument goes

like this, that the Supreme Court of South Australia

was set up in accordance with an imperial statute.

That ultimately was a question of debate at the

end of the day whether in fact it was an imperial

statute in terms of the ordinance which established
it. But it was established as a court of judicature
and as a court of judicature, it was constituted
having a particular character and that that character

could not be changed subsequently by the Parliament of South Australia. In could not ingraft on to the character of the court anything that was other than the character of fulfilling a judicial function.

Now, I simply make the point that the argument

was accepted by two judges of the supreme court.

It showed the sorts of arguments which could still,

in my submission - are reasonably arguable whether

they are right or not. Mr Justice Wells, at the

end of the day, decided that the legislation was

severable and could take effect without the

appeal provision. Mr Justice Zelling, on the

other hand, decided it could not.

Now, if there are these fetters which are

still alleged to apply to the States, my submission
is the way of removing them has been two-fold:

either for a request to be made by the relevant

State to the Imperial Parliament for legislation

removing the fetter, or; since Federation, to make

a request in accordance with placitum (xxxviii).

It is my submission that placitum (xxxviii) is a

valuable adjunct to the status of Federation as

we see Australia growing into nationhood and that

CIT6/l/JM	53	15/2/89
Macdonnell

we might regard it as a situation developing where
a State might regard it as being demeaning to be

quite appropriate for the request to be made to the Commonwealth Parliament.

required to make a request to the United Kingdom

(Continued on page 55)

CIT6/2/JM	54	15/2/89
Macdonnell

MR WILLIAMS (continuing): It is my submission that

placitum (xxxviii) does have potentially a

valuable job to do within the Federation to

ensure that the whole range of powers exercisable

within the Connnonwealth are effectively distributed in totality between the States and the Connnonwealth

and it is my submission that it is only that limited

way in which placitum (xxxviii) should be given effect

to.

The Court will recall the ramifications that

past through South Australia as a result of the

judgments of Mr Justice Boothby and my submission

is, although the Constitutional Debates certainly

do not refer to it, that those who were dealing with

that situation must have had that in the back of their

minds. Indeed, it may be that the issue, even at that

time, was so sensitive that it was not brought forward

as the subject of debate because the Constitutional

Debates say very little on the topic at all. Indeed,

there is a discussion amongst those present at the

debates as to what it meant.

It is my submission that when - the

placitum (xxxviii) reads as follows:

The Parliament shall, subject to this

CONSTITUTION, have power to make laws for

the peace, order, and good government of the

Commonwealth with respect to -

(xxxviii) The exercise within the Commonwealth,
at the request or with the concurrence of the

Parliaments of all the States directly

concerned, of any power which can at the

establishment of this CONSTITUTION be
exercised only by the Parliament of the
United Kingdom or by the Federal Council of

Australasia.

We know, of course, that as at the time of the

establishment of the CONSTITUTION, the Federal Council

of Australasia had, in fact, been formally abolished

under the covering clauses of the CONSTITUTION whereas

the CONSTITUTION itself, of course, was established in

terms of covering clause 4:

The Conunonwealth shall be established and

CONSTITUTION of the Conunonwealth shall take

effect,on and after the day so appointed.

But then by section 7 of the coverin~ clauses:

ClT7/l/SH	55	15/2/89
Macdonnell

The FEDERAL COUNCIL OF AUSTRALASIA ACT, 1885,

is hereby repealed, but so as not to affect

any laws passed by the Federal Council of

Australasia and in force at the establishment

of the Conrrnonwealth.

(Continued on page 57)

ClT7/2/SH 56 15/2/89

Macdonnell

MR WILLIAMS (continuing):  In fact, that drafting hiatus

was noted in, I think, the 1898 debates but nothing,

apparently,was done about it. The Federal Council

of Australasia had given to it certain enumerated

powers - I have included in the reading list

the Act itself establishing it - but it also included such powers as might be referred to

it by the British Parliament. It may be that

in the course of the drafting and settling of

the CONSTITUTION that there could have been further

powers referred to the Federal Council and it

may be that those who were drafting the CONSTITUTION

were, perhaps, dealing with the possibility that

by the time the CONSTITUTION came into force

the Federal Council may have been given some

power to remove disabilities of the nature that

I have mentioned.

MASON CJ:  You mentioned 1'referred to the Federal Council

by the Imperial Parliament", you mean by the

legislatures of two or more colonies, do you

not? Section 15(i)

MR WILLIAMS:  I had in mind, if the Court pleases, section 15(h):

the Council shall have legislative authority

in respect to the several matters following:-

(h) Any matter which at the request of the

legislatures of the colonies Her Majesty

by Order in Council shall think fit to refer

to the Council.

MASON CJ:	Yes.
MR WILLIAMS:	So it may be that if there had been a particular

disability concerning one or more of the colonies,

and it would probably be a common problem if

it in fact had occurred anywhere, there was at

least the possibility that during the course

of the drafting process some additional power
might have been given to the Council.	We must

remember that we are dealing with a situation

in the 189Os where, obviously, it would take

a lot longer to communicate than now and it would

not be unreasonable to think that the draftsman

was trying to deal with all contingencies when

that was drafted.

(Continued on page 58)

C1T8/l/SDL	57	15/2/89
Macdonnell

MR WILLIAMS (continuing):  In terms of the words "the

exercise within the Commonwealth of a power", in

my submission the exercise within the Commonwealth

must be viewed in the same way as those words

appear later in the placitum:

any power which can at the establishment
of this CONSTITUTION be exercised only

by the Parliament of the United Kingdom. Now, in the same way as the Parliament of the United

Kingdom then had the power to legislate for England

and for the colonies abroad, and exercise its power

both at home and abroad, it exercised its power from

Westminster within United Kingdom, but ~lso

exercised a power within the colonies, ~d that is

the manner in which I suggest that the ,, rds "the exercise"

in the opening words of placitum (xxxviii) should be

construed. In this way the exercise withi~ the

Commonwealth requires that the exercise be in such
a manner so that the law operates within the

Commonwealth.

It has been said that the phrase "within the

Commonwealth" is a geographic limitation upon the

extent of its operation and I refer to a comment by

Mr Justice Williams in LAMSHED V LAKE, 99 CLR 151,

to page 152:

Where the Commonwealth Parliament has power

to make laws for the peace order and good

government of the Commonwealth, as it has

by the opening words of ss. 51 and 52

of the CONSTITUTION, it can make its

legislation upon the subject matters there

enumerated operative throughout the whole
of Australia and Tasmania, unless the
language conferring the power imposes some

geographic limit upon the extent of this

operation as it does, for instance in pars.

(xxxiv.), (xxxvii.) and (xxxviii.) of s. 51.

Now, in my submission, the exercise of power in this
instance is not within the Commonwealth.	The

Commonwealth, in this instance, in my submission,

ends at the low water of the States and it is

intended to operate clearly beyond that.

(Continued on page 59)

ClT9/l/HS	58	15/2/89
Macdonnell

:MR. WILLIAMS (continuing):  The particular power in question

is a power to confer a power and it is a power

that has to be - that is the placitum (xxxviii) -

a request has to be made at the request of the

Parliaments of all States directly concerned.

So it would appear that the placitum is limited to

circumstances where there is, in fact, at least one

State that has a direct interest in the exercise of

the power.

It is my submission that the placitum, of course, is to be read subject to the opening words

of section 51 subject to this CONSTITUTION which

itself distributes power between the States and the

Commonwealth and it is my submission that this placitum cannot be used to simply redistribute that
power. In my submission, the appropriate course

is, if the Commonwealth is not prepared or does not

wish to exercise power over the offshore waters, the

appropriate way of securing a constitutional amendment

is by going to the people.

The only other matter which I wanted to mention - and I am moving to a different topic - is that it is

my submission that the Commonwealth legislation in

terms of the FISHERIES ACT providing for an arrangement,

we note that the FISHERIES ACT amendments providing

for these arrangements to be made were made concurrently

with the introduction of the STATE POWERS ACT being

respectively the act 75 and 80 and 86 of 1980. It is my

submission that when section 12H(4) says that:

The Commonwealth may make an arrangement with a State -

Parliament must have had in mind the effect of that

arrangement and the effect of the arrangement would be in terms of the STATE POWERS ACT to immediately

trigger a jurisdiction because section 5(c) of the

STATE POWERS ACT triggers the jurisdiction when an

arrangement exists and, in my submission, the

fully the operation of the arrangement and rather	Commonwealth must have intended to be laying down	than simply leave it to State law to say how it
would take effect because if we do not rely upon the
COASTAL WATER (STATE POWERS) ACT the only other way
of spelling out the effect of the arrangement is to leave it to the FISHERIES ACT of South Australia where
section 14 spells out the effect of the arrangement.

(Continued on page 60)

ClTl0/1/BR	59	15/2/89
Macdonnell

MR WILLIAMS (continuing):  Now thet"e is no guarantee, of course,

that a State will not, even during the course of an

arrangement, alter section 14 of the STATE FISHERIES

ACT and in my submission,the intention of the

Commonwe~lth Parliament must have been to create a framework for these Acts to operat0 an<l a framework

which was complete rather than relying upon, in some

sense, the whim of the South Australian Parliament.

Those are my submissions if the Court pleases.

McHUGH J: Before you sit down, Mr Williams, can I just ask

you this? When the Commonwealth purports to exercise

its powers under sectian,Sl(xxxviii) of the

CONSTITUTION, assuming that it -b&s invalidly exercised

those powers, can the Act. nevertheless, be supported

by a reference to some other head of Commonwealth power?

MR WILLIAMS: In my submission, and I am speaking generally,

the answer is, no, and I have not developed this

argument because I put it in my notes of argument and

the reason which I give is simply to turn to the notes

of argument and say that they speak for themselves.

Point 5 of my notes of argument says: apart from

the request power, other provisions of the Australian

CONSTITUTION (for example, the Fisheries power or

External Affairs powers are insufficient to support the COASTAL WATERS (STATE POWERS) ACT so as to clothe

a State with an independent jurisdictioP. The

reasoning of DIGNAN, 46 CLR at pages 101-102 and

pages 119-120 is to be applied; the COASTAL WATERS ACT

is not to be characterized as a Commom·ieal th law with

respect to fisheries or external affairs but as a law

authorizing the exercise of a power.

I was hoping not to simply read great slabs, if

the Court pleases out of judgments but this point

having been raised I would like to just turn to what

Mr Justice Evatt, I think it was, said in DIGNAN's

case. On page 119 of 46 CLR Mr Justice Evatt said,

half-way down the page:

But this is for a_ reason quite different and

distinct from the absolute r~striction upon

parliamentary action which is supposed to result

from the theory of separation of powers.

The matter may be illustrated by an

an example. Assume that the Commonwealth

Parliament passes an enactment to the following

effect:  "The Executive Government may make

regulations having the force of law upon the

subject of trade and commerce with other
countries or among the States." Such a law would

confer part of the legislative power of the

Commonwealth upon the Executive Government, and

those who adhere to the strict doctrine of

ClTll/1/SR	60	15/2/89
Macdonnell

separation of powers, would contend that the

law was ultra vires because of the implied

prohibition contained in sections 1, 61 and 71

of the CONSTITUTION. For th~ rensons mentioned

such a view cannot be accepted.

(Continued on page 62)

ClTll/2/SR	61	15/2/89
Macdonnell

MR WILLIAMS (continuing):

At the same time, I think that in

ordinary circumstances a law in the terms

described described would be held to be

beyond the competence of the Commonwealth

Parliament. The nature of the legislative

power of the Commonwealth authority is

plenary, but it must be possible to
predicate of every law passed by the
Parliament that it is a law with respect to
one or other of the specific subject matters
mentioned in secs. 51 and 52 of the CONSTITUTION.

The only ground upon which the validity of

such a law as I have stated could be affirmed,

is that it is a law with respect to trade and

commerce with other countries or among the

States. But it is, in substance and

operation, not such a law, but a law with
respect to the legislative power to deal with
the subject of trade and connnerce with other
countries or among the States. Thus, sec. 51(1)
of the CONSTITUTION operates as a grant of
power to the Commonwealth Parliament to regulate
the subject of inter-State trade and commerce,
but the grant itself would not be truly described

as being a law with respect to inter-State trade

and commerce. Sec. 51(1) is, however, correctly

described as a law with respect to the powers

of Parliament, and it finds it proper and

natural place in a CONSTITUTION ACT.

Now, I would say in this case, if the Commonwealth

sought to justify the STATE POWERS ACT under, let

us say, the FISHERIES ACT, my submission is that

under the fisheries power placitum (x), in my

submission, that would not be a Commonwealth law

with respect to fisheries. It would be characterized

as a law authorizing the State to enact its own

legislation and, in my submission, the only laws

which could take effect under the other placita,

apart from (xxxviii), would be Conrrnonwealth laws.

But here we have - and any laws that flowed from it,

any delegations which flowed from a fisheries power

A~t would have to be in effect a delegation of

Conrrnonwealth power. If power was given, let us

say, to certain named officials in the State of

South Australia to do certain things in the name

of the Commonwealth, then, of course, that is

quite a different situation. It is a delegation of

power. But, in my submission, to do what Your Honour

has said and to do it as has been intended here

would amount to an abrogation of power, not the

exercise of fishery power.

McHUGH J: Yes.

MR WILLIAMS:  That is my short reason. I would apply the

same answer to any other section such as the

external affairs power. Those are my submissions.

CIT12/l/JM	62	15/2/89
Macdonnell
MASON CJ:	Thank you, Mr Williams.	Yes, Mr Solicitor

for South Australia?

MR DOYLE:  Could the outline of submissions be handed

up, if the Court pleases?

MASON CJ:	Yes.
MR DOYLE:	If the Court pleases, the first part of the

outline deals primarily with issues of
construction and it is the second part of the

outline which deals with the issues of validity.

Just beginning with the issues of construction

in section 12H(4) of the FISHERIES ACT, that

provides that:

The Commonwealth may make an arrangement

with a State with respect to a particular

fishery in waters adjacent to the State.

"Waters adjacent to a State" are in turn defined

in section 12A(2) as meaning:

the coastal waters of a State or States

and waters within the Australian fishing

zone that are adjacent to the coastal waters

of the State or States.

If Your Honours could just keep a finger there,

"coastal waters" are in turn defined in section 4A,

and they are:

(Continued on page 64)

CIT12/2/JM	63	15/2/89
Macdonnell
MR DOYLE (continuing):

The part or parts of the territorial sea of Australia that is or are adjacent

so the word "adjacent" being used again and, also,
waters to the landward of the territorial sea which
are adjacent to the State - same word again - but
not within the limits of the State and so, in effect,

waters which are contained between where it occur8

a baseline for the measurement of the territorial

sea and a point which marks the limit of the States

and an illustration of that can be seen on the large

coloured plan. As Your Honours no doubt know, in

RAPTIS V SOUTH AUSTRALIA, it was held that, in

relation to the gulfs, the limits of South Australia

were to be drawn by lines across the base of the

gulfs. I am not too sure precisely where but roughly

from Port Lincoln across to the York Peninsula and

then across the bottom of the other gulf. So, between

the territorial sea and those closing lines, there will

be an area which answers the description in 4A(b):

Any marine or tidal waters that are on the landward side of ..... the territorial sea

..... adjacent tQ -

South Australia -

but ..... not within the limits of -

South Australia.

So, Your Honours, when we come back then to

section 12A to determine what are waters adjacent

to the State and to subparagraph (2) in particular,

what the draftsman has sketched out for us is, in

my submission, a dual concept. First of all, we look

at the coastal waters so we have to bear in mind that

strip that is coloured purple on the coloured map

and any waters landward of it between that strip and

the line which marks the limits of the State, they

will be coastal waters of the State and then he has

referred to waters within the Australian fishing zone

that are adjacent to the coastal waters and, as
Your Honours have heard from my learned friend, the

Australian fishing zone and, as the plan indicates,

extends 200 miles out. So, section 12H(4), looking
at it through section 12A(2), refers to these two

bands of water, first of all, the coastal waters and then the waters of the Australian fishing zone which

go out 200 miles. I do not want to go into details

of definitions but when Your Honours look in due course

at the definition of the Australian fishing zone

Your Honours will see that it goes out 200 miles.

It is, in fact, measured from the base line from

which the territorial sea is measured but, because

ClT13/l/SH	64	15/2/89
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the Australian fishing zone does not include waters

that are not proclaimed waters, when you, in turn,
look at what are proclaimed waters, you find that they, in turn, exclude coastal waters, in effect.

So there is a continuous spread, first of all.	You
can, in effect, say what section 12A applies to,
looking out to sea, is waters which start at the
limits of the States and then the first band goes

out to the extremity of the territorial sea and

then the second band goes out to the 200 mile line,

although both bands are measured from the same base

point, that is, the base line by reference to which

the territorial sea is measured.

I should just add for completeness that the

draftsman~ for reasons not clear to me, has referred

to base lines from which - and I am now looking at the

definition of the Australian fishing zone - he has

referred there to base lines from which 'the territorial

limits of Australia are defined for the purposes of

international law". One might have thought he would

have referred to the base lines from which the

territorial sea is measured but, in my respectful

submission, first of all, as a matter of connnon sense,

he certainly would have meant the same base lines and, secondly, in the case - which is in paragraph l(a) of

our outline - those words "the base line by reference

to which the territorial limits of Australia are
defined", were treated in that case as referring to

the base lines from which the territorial sea is

measured and, on that point, I refer, in particular,

to the judgment of Mr Justice Gibbs, as he then was,

that is pages 193 to 195 where it emerges most clearly

the he and other members of the Court were treating the

base lines all as one and the same.

DAWSON J: Is there any difference?

MR DOYLE: Well, no, in my submission, there is not. It is just

that one wonders initially why has the draftsman

used - - -

DAWSON J: That expression.

MR DOYLE:  - - - that expression rather than the one we would

have expected the base lines from which the territorial

sea is measured.

DAWSON J:  But the base line from which the territorial sea is

measured is the base line for international purposes.

MR DOYLE:  Yes.

DAWSON J: Yes.

ClT13/2/SH	65	15/2/89
Macdonnell

MR DOYLE:  So, Your Honours, we start with section 12A and

12H(4), in my submission, with that picture in our

mind of those two bands of waters. Then we have

to consider what are the lateral limits to those

bands and my respectful submission is that the word

"adjacent" was used deliberately to give a measure

of flexibility and that my learned friend's submission

that the lateral limits are to be determined by

reference to this line of equidistance is not

correct.

(Continued on page 67)

C1Tl3/3/SH	66	15/2/89
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MR DOYLE (continuing): First of all, just looking at it as

a matter of the draftsman's intent, he was dealing

here, in this part of the Act, with a situation

which was causing practical problems, that the

Commonwealth under section Sl(x) had control

in relation to fisheries of all waters outside
the territorial sea and the States inside, and so

the division of responsibilities. It is clear the

intention was to produce a more practical and

workable arrangement and, in my respectful submission,

it is unlikefy - bearing in mind that the draftsman

is looking, as it were, at the Commonwealth's

ability to control a band of water running right

around Australia - it is unlikely when directing his

mind to more efficient arrangements that he would

have intended to fetter the Commonwealth in working

out more efficient arrangements by requiring it,

nevertheless, to pay close regard to precise lateral

boundaries.

One would think, in my respectful submission,

he may well have been thinking indeed, or envisaged

that there may be situations when, to use my learned

friend's illustration, it would be far more efficient

for South Australia to look after crayfish off
Portland, or crayfish off some point near the
Western Australian border, than for the Western

Australian fisheries authorites. So, in my

respectful submission, just approaching this

legislation in terms of what it was doing, there

is no particular reason to anticipate that the

draftsman would have intended to draw precise

lines and, in my respectful submission, it is for

that very deliberate and sensible reason that he has

chosen the word "adjacent" and so he has required

that there be some proximity between the State and
the relevant waters, but his requirement is no more

precise than that.

In my respectful submission, he has not, by

using the word "adjacent", produced a situation

in which the waters have to be closer to one State

than they are to any other State before they can be

said to fall within the seciton. In my respectful

submission that, as a matter of practical approach,

would not have been a sensible thing to do and

if that had oeen his intention to say, in effect,

that we are dealing here with waters that are closer

to one State than they are to any other State, he

would have chosen some far more precise terminology

to achieve that effect. So I do submit that the

word "adjacent" is to be read flexibly and not to

be read as indicating what can conveniently be

called a line of equidistance.

The other thing to bear in mind, Your Honours, 1s that when we look again at section 12A(2) there

ClT14/l/HS	67	15/2/89
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are these two bands:

the coastal waters of the State.

Now, we know from section 4A that they are the

part of the territorial sea adjacent to the State -

there is obviously an element of proximity in that -

but the second band, which is the really important

one going up further is:

waters within the Australian fishing zone

that are adjacent to the coastal waters.

So, in the first part of 12A(2) the reference via

section 4A is to territorial sea adjacent to the

State, but in the second part it is just waters

of the Australian fishing zone that are adjacent

to the waters, and in my respectful submission, that
indicates a further element of flexibility and to
try to put it in pictorial terms, in my respectful
submission, he may well have had in mind that in

relation to the territorial sea the notion of

adjacent sea would be a more limiting one and it

would be very difficult to call the territorial

sea, let us say - the map does not go far enough -

but somewhere to the east of Portland. It would not
be easy to call that part of the territorial sea
adjacent to South Australia, but when we think of
the bigger band of waters, the Australian fishing

zone, he may well have had in mind a picture of

something fanning out like that and there would be

no reason at all for one to say, looking at the plan,

that waters to the right of the red line, which 1
think runs on the 141st parallel, there is no

reason that once you get further out to sea to say
that waters to the right of that line are not

adjacent to the coastal waters of South Australia.

They may also be adjacent to the coastal

waters of Victoria but, in my respectful submission,

there is no reason to think the draftsman had in mind the drawing of that sort of precise and inconvenient distinction. So our submission is

when we begin with section 12H(4) that it is

dealing with those two bands of water which are
continuous and that in terms of lateral limits

the only requirement is that of adjacency, that

that is to be read flexibly, it may be somewhat

more confining in relation to the territorial sea

than it is in relation -

McHUGH J:  Mr Solicitor, do you accept the concept of

equidistance in respect of the territorial sea

waters?

ClT14/2/HS	68	15/2/89
Macdonnell

MR DOYLE:  Your Honour, I do not but, in my respectful submission,

we do not need to trouble ourselves with that here

because as I understand the maps - and I am just a

bit uncertain in the light of the further plan
overnight which does suggest that the line of
equidistance diverges from the prolongation of the

boundary right at the low water mark. Can I put it this way: if there is a problem and if the line of

equidistance is valid in relation to the territorial

sea, then the only problem is that there is a very

little sliver of the territorial sea that the

arrangement purports to apply to and cannot. My

submission would be, even if you apply the line of

equidistance to the territorial sea, it does not

affect my submissions as to the waters of the

Australian fishing zone that their adjacency is to

be given the greater measure of flexibility. Although

I do not acknowledge that the line of equidistance is the right line for the territorial sea, I acknowledge

that if it is the right line then there appears to be

a little sliver of territorial sea that the arrangement applies to but probably cannot in terms of section 12H.

So, Your Honours, I begin then with section 12H(4) and I submit that it provides for the making of an

arrangement that applies to those waters. In

paragraph l(c) of the outline I would simply note,

so it is not overlooked, that in section 12H(4) the

Conrrnonwealth Parliament is dealing with waters that
are not within section Sl(x) - and it is desirable
to bear that in mind when, considering the validity

of section 12H(4). Section Sl(x) gives power to make

laws with respect to -

Fisheries in Australia waters beyond

territorial limits -

and because coastal waters are not waters beyond

territorial limits therefore in so far as

section 12H(4) applies to coastal waters, or

provides for the making of an arrangement which

relates to coastal waters, it is dealing with waters

that are not what I will call Sl(x) waters. The

balance of the Act, that is, apart from Part 4A,

does not deal with coastal waters for the good reason,

in my submission, that the balance of the Act is

dealing directly with the regulation of fisheries and
so confines itself to waters that are section Sl(x)
waters.

But it is my submission that nevertheless section 12H(4) is a valid law under section Sl(x)

because what it provides is, in effect, that where

there is a fishery in the coastal waters and the

section Sl(x) waters - and then we look at

subparagraph (b) -if the fishery is wholly or partly

in the section Sl(x) waters then the Conrrnonwealth

ClTlS/1/BR	69	15/2/89
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may make an arrangement with the State for management

of that fishery. In my respectful submission, that

is clearly and obviously a section Sl(x) law. The

Commonwealth is simply saying,in effect, when there

is a fishery which is wholly or partly in Sl(x) waters

we may make an arrangement for the management of that

fishery by a State. And the underlying implication is,

presumably, that we are doing it because it is more

convenient and efficient to do so. Now, in my

respectful submission, although as I have indicated

that subsection deals with waters that are not Sl(x)

waters nevertheless, in my submission, section 12H(4)

is a valid law under section Sl(x).

So one then gets to the situation that section 12H ( 4) - if that submission is accepted and

it is valid - provides for an arrangement with respect

to a particular fishery in waters adjacent to the

State and then if the fishery is wholly or partly in the section Sl(x) waters for management in

accordance with State law and then one finds that

if such an arrangement is made, what section 121 does

is simply, in my submission, retract the Commonwealth

law from that particular fishery with the proviso that

the Commonwealth law continues to apply in relation

to foreign boats.

So it is our submission that section 121 is

simply a retraction law and that it leaves a space

then into which the State law may come unimpeded by

section 109 and that it needs to do no more than that

and does no more than that. It might be convenient

if I just mentioned here what I understood my friend

to submit this morning that these provisions - and

perhaps the COASTAL WATERS (STATE POWERS) ACT indicate

the draftsman was envisaging that the arrangement

would be in a form in which it spelt out itself all

its details. I.am not sure if I understood my

friend's submission correctly but it appeared to me

that that was his submission that a valid arrangement

could not be one which simply said, State law

applies to this fishery, it must say in what respects

and spell out the content. Our submission is that that was not intended and that the draftsman, when

he referred to management in accordance with the law

of the State, simply meant that: management in the

ordinary way. Obviously, if they in some way

wanted to vary the general application of State law

they could do so but, in my submission, he was not

intending to provide that the management arrangement

must spell out the content, he was leaving the

draftsman of the management arrangement free to simply

invoke the State law generally if he saw fit.

ClTlS/2/BR	70	15/2/89
Macdonnell

MR DOYLE (continuing):  So, Your Honours, they are our

submissions as to the validity of section 12H(4)

and what it provides for. The next step, in

our submission, is to look at the arrangement

and see whether it appears to be an arrangement

falling within section 12H(4) - and that is part B

of our submissions.

Your Honours, the coloured plan again conveniently

indicates the extent of the arrangement by that

green line and the arrangement itself, if I can

just focus on the second arrangement, is at page 48

of the special case. First of all, we note in
paragraph (a) of the recital and clause 2 of

the arrangement that it is with respect to a

particular fishery because it refers in particular,

in clause 2 of the operative part, to the fishery

for a particular species of fish and taken in

two different ways, "pots or by diving" or, in

fact, three - "or self-contained underwater breathing

apparatus".

So it defines what in our submission is

a particular fishery and there is no requirement

under the Act that a fishery be defined in terms

of area. It may be; it need not be. So, in

answer to the point Your Honour Justice Brennan

raised yesterday, we submit that the draftsman

again has deliberately left an element of flexibility

here and that, really, a fishery is, under this

statute, just an activity and you cannot say

much more than that about it - and it is a pretty

vague sort of activity - but that is all it is;

just an activity.

DEANE J: Mr Solicitor, can I take you back for a moment.

You say section 12H(4) is a valid law under

subsection (x)?

MR DOYLE:	Under section Sl(x), yes.
DEANE J: But, does that mean that on your submission

section 121 does not represent a withdrawal from

territorial waters?

MR DOYLE:  It would not need to withdraw from territorial

waters, Your Honour, because State law would

validly be applying in them, anyhow. It only

needs to retract the Commonwealth law from the

waters which are seaward of the coastal waters.

DEANE J: That is because under other legislation it is

only State law operating within the territorial

seas?

ClT16/l/SDL	7 1	15/2/89
Macdonnell

MR DOYLE: It is complicated and I am not sure, in my

submission, I can always keep it clear in my

own mind, Your Honours, but section Sl(x), the

fisheries power, only starts to operate for

the Commonwealth from the outer limit of the

territorial sea.

DEANE J:	I was looking more to the FISHERIES ACT and why
you restrict that to extraterritorial sea waters?
MR DOYLE:	Because, although it appears to talk in terms

of the waters of the Australian fishing zone,

and it does, waters are not within the Australian

fishing zone if they are not proclaimed waters

and when you look at the definition of proclaimed

waters, they do not include waters that are within

territorial limits and, therefore, by that complicated

route, we find that the FISHERIES ACT does not

generally apply to the territorial sea and, in

our submission, could not validly apply to it but does not attempt to anyhow - and it could not because of section Sl(x).

DEANE J: That answers my question. But why, under

section Sl(x), would not the Commonwealth have

legislative power?

MR DOYLE:  Because its power is only in Australian waters

beyond territorial limits, which means beyond

the territorial sea.

DEANE J:	The States won the SEAS AND SUBMERGED LANDS case,
after all, did they?

MR DOYLE:  No, Your Honour. It would be good news if we

did but I do not think we did. In my submission,

Your Honour, that is because section Sl(x),

in effect, is to be read as a restriction and

so although, in light of the SEAS AND SUBMERGED

LANDS case the case is that the States end at the low water mark, the power as to fisheries

contains an inbuilt restriction that, looking	at it from out at sea, it stops when you get
to the beginning of the territorial sea - and
query whether other powers may mean that in another
way you can bring fisheries in but hopefully
we will not have to go into that today.

(Continued on page 73)

C1Tl6/2/SDL	72	15/2/89
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MR DOYLE (continuing):  So corning back to the arrangement,

Your Honours, and the question of whethe~ it is then an arrangement within section - could I just add one

other point on section 121 so I do not forget it.

The FISHERIES ACT is still, by virtue of section 121

operating in these waters in relation to other

fisheries. I perhaps did not make the point clearly

enough that section 121 only retracts the

Cormnonwealth Act in relation to the particular fishery,

so it does not retract it from the area, only in

relation to the fishery. So in relation to other

fisheries the Cormnonwealth Act will still be operating

in those waters. So going to the arrangement then:

it is, in my submission, when one looks at the terms

of it,with respect to a particular fishery. We know
from the facts that the fishery is partly in waters
on the se~Nard side of the coastal waters of the States

and so the arrangement is with respect to a

particular fishery and subject to the question of

lateral limits, it is a fishery in waters adjacent to

the State and the fishery is, in terms of section 12H(4)(b)

partly in waters on the seaward side of the coastal

waters of the State and so descripitively it appears

to be an arrangement within section 12H(4). And then when we look at the limits of the arrangement we find

that going seaward it does not at any point go beyond
the limits of the Australian fishing zone and so it

does not go too far seaward. When we look at the

lateral boundaries we fj_nd that it is on the prolongation

southwards of the border and so it is subject to
the point about the line of equidistance in relation
to the territorial sea, it does not go too far east or

west.

There is one very small doubt which might be

raised, which again I just mention so it is not
overlooked. At page 48, the 8rrangement in clause 2

having spelt out the metes and bounds in subparagraph (f)

says that the relevant line then runs:

. easterly and soutp-easterly along that shore

to·the point of cormnencement.

Now if you run that line literally along the shore

you will go within the limits of the State because you

will go up the gulf and the section 12H(4),referring
to coastal waters and waters outside them, clearly does

not refer to waters that are within the limits of

the State. But, in our submission, the draftsman

has introduced all this, in clause 2 in the last two

lines before the lettered subparagraphs, with that

expression:

in the area of waters adjacent to the State.

So, in our respectful submission, what he means is

one of two things: either he means the line runs along

ClT17/1/SR	73	15/2/89
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the shore, but when there is a closing line it is to

run along the closing line or,alternatively,his concept

is, it is an area of waters within this whole boundary,

including the shore, but only waters which are
adjacent and so because waters within the limits of
the State are excluded from adjacent waters he still
is not attempting to apply the arrangement to waters

within the limits of the State.

BRENNAN J:  Mr Solicitor, can I just ask you about the effect of

section 121 that you have spoken of before as being

the withdrawing effect and therefore it is a withdrawing

of Commonwealth legislative control of a class of

activities?

MR DOYLE:	Yes, Your Honour.
BRENNAN J:	How does one discover whether a particular act

committed or done at a particular point on the seas

is an act which is exempted from Commonwealth control?

MR DOYLE:	By asking oneself, in my respectful submission, whether that Act is in relation to a fishery the
subject of a management arrangement and if it is then
the Commonwealth law is withdrawn from it.

BRENNAN J: That is asking oneself whether it is an activity

with respect to an activity by way of fishing?

MR DOYLE:  Yes, Your Honour.

(Continued on page 75)

ClT17/2/SR	74	15/2/89
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MR DOYLE:  Yes, Your Honour.

BRENNAN J: I do not understand that. If one finds, for

example, that somebody is picking up a craypot

in one of the areas close to one of the lines

that we have been looking at here, how does one

discover whether the picking up of that craypot

is covered by Federal law, or by State law?

MR DOYLE:  In my respectful submission, if I could come

to it this way, one would look to see whether

State law in relation to the management of

crayfish applied to the act that was done and

if it did, then, in my submission, one can say,

"Well, this is an act in relation to the fishery

in the sense that it is one of the acts which the

law purports to subject to a licence requirement

or to prohibit absolutely", and therefore, one

says, "It is an act in relation to that activity".

So, while it may be a little circular, one does

have to look to see what the law does by way of regulating the activity to decide if the act is

one in relation to the activity. So, my first

answer to Your Honour might ha~e been too general

in the sense that perhaps the mere fact that you

can say, in a sense, the act is in relation to the

activity is not enough, in my submission, it has to be
an act which is one of the activities governed by

a body of law via the management arrangement.

McHUGH J:  But supposing you had a Commonwealth law operating

in the area and a State law operating in the area

and an arrangement made under 121, how do you answer

Mr Justice Brennan's question then?

MR DOYLE:  The only way I can answer that, Your Honour, is

to say that when 121 says:

Where there is an arrangement under this

Division that provides that a particular

fishery is to be managed -

et cetera, here we have such an arrangement.	Then,
when the Act goes on to say:

the provisions of this Act other than this

Division do not apply to or in relation to

that fishery -

in my respectful submission, it must mean to the

extent that the management arrangement and the

State law itself applies in relation to the fishery.

If I can explain a little more clearly, just say

that somewhere in the FISHERIES ACT there was a

provision that said no boat shall be driven in the

Australian fishing zone at a speed in excess of

CIT18/l/JM	75	15/2/89
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30 miles an hour. Now, it wuuld not follow,

in my submission, that that had been retracted

from the fishery, assuming the State provision~

in relation to the fishery just said nothing at

all about speed limits. It may be difficult

sometimes, I acknowledge, to be sure if a

particular provision has been retracted. But,

in my submission, one can say reasonably

confidently that what section 121 does is provide

that in relation to matters that the management

arrangement purports to regulate in relation to
matters as to which State law is invoked through

the management arrangement, then in any of those

things the Commonwealth law is withdrawn. But

I would not want to be taken as asserting chat there

may not be some occasions when it might be a

bic difficult to tell.

DAWSON J:  The difficulties would be only in construction;

they would not go to validity?

MR DOYLE: No, that is my point. It is a construction problem

and I know it may seem easy to try to pass it off

that way, but, in my submission, there is a

sufficiently cleart as it were, core of application

for 12L for one to say this is a construction

problem and not one that goes to validity.

So, Your Honours, subject to that point about 12L

and subject to the point I raised about the line

running along the shore, it is my submission we can then say step two is this arrangement is an arrangement authorized by section 12H(4). Then

one has to go to the provisions of the COASTAL

WATERS (STATE POWERS) ACT because tc the extent

that that is relied upon we then have to see

whether what the arrangement does meshes in with

the provisions of section SC of the STATE POWERS ACT

because if there is some disconformity between

what that provides for, or the waters to which that

relates and the waters covered by the arrangement,

there may be a difficulty.

(Continued on page 77)

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MR DOYLE (continuing):  Could I just depart slightly from the

order of the outline and deal with paragraphs 6 and

7 first, outer and inner limits, before I come to

lateral limits.

Section 5(c) of the COASTAL WATERS (STATE POWERS)

ACT provides that the legislative powers of the State extend to the making of certain laws and, first of

all, they have got to be:

Laws of the State with respect to fisheries - and, secondly, they have got to be -

In Australian waters beyond the outer limits of the coastal waters of the State -

but its powers are extended only to the extent to which

those fisheries or that fishery is to be managed under

an arrangement. So we do, in the end, have to come

back and see whether the arrangement is an arrangement

for the management of such a fishery in such waters

because, if it is, then the legislative powers of the

State will be extended.

Now, in my respectful submission, in section 5(c),

"Australian waters" is, again, to be read in the sense

in which is it used in section 5l(x) and so, in my

submission, one can say that "Australian waters" as

defined in the FISHERIES ACT, that is, going 200 miles

out to sea, are Australian waters in the sense used

in this subparagraph and I do not wish to read from

BONSER V LA MACCHIA but, at the page references given

in the outline, in that case members of this Court accepted that, in relation there to a proclamation

which took waters 200 miles out from the eastern

coast of Australia, they were Australian waters and

the approach to it was that this was, really, an issue

of adjacency or propinquity and whether Australia had

a sufficient interest in the waters.	It was not a
precise notion and all members of the Court said that

one could say certainly'Australian waters"in

section 5l(x) would go out as far as 200 miles.

So, my first point is that the arrangement, then,

does not go further out to sea than subparagraph (c)

contemplates. Secondly, subparagraph (c) is referring
to:

Australian waters beyond the outer limits of the coastal waters of the State -

and, in my respectful submission, that means beyond

the territorial sea. Now, the arrangement does apply to waters within the coastal waters of the State but,

ClT19/l/SH	77	15/2/89
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in my respectful submission, that does not give rise

to any problem because what subparagraph (c) is doing

is extending State legislative powers out into what I

have called section Sl(x) waters. There was no need

to do that in relation to the inner band and, in my

respectful submission, the fact that the arrangement

relates to that inner band does not, in any sense,

mean that it ceases to be an arrangement of the sort

referred to in section S(c).

So, the second point is that, as to - even when one looks at the inner limits - still we have an

arrangement of the type contemplated by subparagraph (c).

Then we have to look again at the lateral limits and

here we find that all the section provides is that the
waters have to be Australian waters and have to be

beyond the outer limits of the coastal waters of the

State.

Now, it is significant, in my respectful submission,

that the draftsman has moved away in subparagraph (c)

from the much more precise language we find in

subparagraph (b) where he picked up the adjacent

area as defined in the PETROLEUM (SUBMERGED LANDS) ACT.

So, it can be said, first of all, that he has apparently

deliberately moved away from a concept of a defined line

and that adjacent area boundary is shown on the coloured

are beyond the territorial waters of a particular

plan. Andall he is required in S(c) is that they be

State. So, once again,in my respectful submission,

if I read the section correctly, there would be no

reason to suggest that in this provision, again, he

is saying there is a definite lateral limit to be

measured by the line of equidistance. All he requires
is that the waters answer that much more general
description of being, first of all, Australian and
secondly, beyond the outer limits of the coastal waters
of the State but he has not even incorporated here the

notion of adjacency.

Now, it may be said, "Well, that is an unrealistic

reading of the section'because it means that literally

under this, the State's powers could, as it were, spread
up right the southern and then the eastern and western

coasts of Australia because there are just no lateral

limits at all.

(Continued on page 79)

ClT19/2/SH	78	15/2/89
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MR DOYLE (continuing): But, in my submission, the answer to

that is that subparagraph (c) itself requires
that there be an arrangement and so the draftsman

has addressed his mind to this and he has so

structured it that there will be an arrangement

and, no doubt, he anticipates that in the arrangement

will appear whatever seems to be the most convenient

lateral line and presumably we can then say,

"And when we go to section 12H(4) we find that

there the sort of arrangement you can make is

restricted by the notion of adjacency."

So, in truth, there is a limit there that

prevents that problem, as it were, of the unlimited

So that is why, in my submission, section S(c) should be read again in that flexible manner.	sidewards spread of State legislative power. is, in fact, an arrangement of the type envisaged
by subparagraph (c) and so we have a situation
where subparagraph (c) would appear to apply.
Then the next question is, "Is it valid?"

BRENNAN J: Section S(c) is supported, as I understand

it, under section Sl(xxxviii), is that true?

MR DOYLE:  Yes, Your Honour, it will be.

BRENNAN J:  So that the effect of section S(c), in your

submission, is to extend the territorial limits

of State legislative power without lateral boundaries

as between the States whose powers are thus extended.

MR DOYLE:  Not quite, in my respectful submission, Your Honour.

Without lateral boundaries - perhaps I should say, Yes, but controlled by the requirement that there be an arrangement which is in turn, as

we find, controlled by the requirement of adjacency.

BRENNAN J:  In the event controlled by the requirement

of adjacency.

MR DOYLE: Yes, in the event. But, in my respectful submission,

the draftsman here was almost certainly aiming for,

at this level of section S(c), maximum flexibility

and, in my respectful submission - or as I will

submit - could validly do so.

On the basis of those submissions,

Your Honours, we then conclude in paragraph 8

that the arrangement is authorized by section 12H(4); that section 12H(4) is valid and that the arrangement is an arrangement of the type contemplated by

section S(c) of the STATE POWERS ACT and so that

section is, as it were, brought into play.

ClT20/l /SDL	79	15/2/89
Macdonnell

DEANE J: Well, it is a good thing it had, is it not, otherwise

every power it had would be taken out of

section Sl(xxxviii) in that every power it had

was also exercisable by the United Kingdom Parliament

and the subsection would be a nonsense.

MR DOYLE:  Yes. Your Honours, in my submission, we do

approach this though 1900 eyes and, in my respectful
submission, in 1900 - and this harks back to

paragraph 12 of the outline - the Commonwealth

Parliament was not a law which was able, generally,

to legislate extraterritorially and nor were
the State Parliaments, or the colonial Parliaments.

The Commonwealth Parliament had certain specific powers which enabled it to legislate

extraterritorially. Section Sl(x) is the simplest

illustration. But in 1900 the approach to its

powers was that unless one could find, either

by express terms or necessary implication in

a head of power, an indication that that power

enabled the making of laws with extraterritorial
operation, then Commonwealth laws were confined
perhaps to Australia, perhaps out to the edge

of the territorial sea but that is the widest

ambit generally of its legislative powers. And,

in my submission, the same in 1900 applied to

the States.

In my respectful submission, a law with

respect to the exercise of the power to legislate

extraterritorially is a law which, at the establishment

of the CONSTITUTION, could be made only by the

Parliament of the United Kingdom. So, if section S(c)

can be characterized as a law with respect to

the exercise by a State Parliament of the power

to legislate extraterritorially, then it is a

law which could be made only by the United Kingdom

Parliament in 1900 and so does fall within

section 5l(xxxviii).

It is my submission, as is put in paragraph 17

of the outline, that section S(c) is such a law

because it is a law saying that in certain

circumstances the laws made by a State Parliament

may have an extended operation in waters which

are clearly extraterritorial. It is not, of

course, a law saying "they always will", it is

a law saying "they will in a particular situation".

But, nevertheless, that is a law with respect

to the exercise by a State Parliament of that

broader power or ability to legislate

extraterritorially.

C1T20/2/SDL	80	15/2/89
Macdonnell

MR DOYLE: Well, perhaps, assuming I am still on my feet at

lunch-time, Your Honour, I could think that through a

bit more carefully, but my submission is, as best I

have been able to think it through, that if the

Commonwealth power does begin at lower water mark that

nothing alters. All it means, in practical terms, is

that the Commonwealth could make its Act apply in

waters to which it has not tried to make it apply so

far. Your Honours, that then really completes the

construction argument based on the Commonwealth Acts
and the arrangements. Before I go just briefly to
the State FISHERIES ACT, it might be convenient here if
I deal with the submission that the first arrangement

was bad for uncertainty because it simply referred to

a fishery in the area of waters adjacent to South Australia.

In my respectful submission, it is not bad for

uncertainty or for any other reason. First of all, as

I have already submitted to the Court, there is no

requirement that a fishery be defined in terms of metes

and bounds, so one cannot say that has to be done

because of the nature of a fishery. What the draftsman

has done is refer to a fishery in an area of waters

and inconveniently has not given us precise boundaries

to them. But if he drew a boundary, as he has in the

second arrangement, the issue can still be raised, does

this boundary so lie that waters inside it are adjacent

to the State? The issue will arise, if it is decided,
presumably the line will be found to be correct or not,

if it is not correct the arrangement will be trying to

go further than it can. What he has done by the way

he worded the first arrangement is produce the

inconvenient result that each time a fisherman has a legal requirement imposed on him, under State law he

could say, that bit of water was not waters adjacent

to South Australia. So it is inconvenient, but it is

the very same issue as arises when we look at an

arrangement drawn as the second one is. You still have

to decide whether the arrangement is applying in waters

are adjacent, it is just that when you have a line

you have no line drawn you will have to decide on a case	drawn you can, in effect, decide once and for all. When
by case basis. So, in my respectful submission, no
different issue arises, it is simply a matter of
approaching it in an inconvenient fashion and so the
first arrangement was valid.

Your Honours, going then to the State legislation,

still on the construction approach, if we have got to

the stage of saying that we have an arrangement that

falls within section 12H(4) and the STATE POWERS ACT,

then in section 13(1) of the State Act is the provision

that:

The State may, in accordance with

section 12J of the Commonwealth Act, make an

arrangement referred to in section 12H.

ClT21/l/SR	81	15/2/89
Macdonnell

And so if the first lot of submissions are good then

it is an arrangement referred to in section 12H and

there is no issue on whether it was in accordance with

section 12J. So once the arrangement is made, then

section 14 provides that if there is an arrangement

that provides for a fishery:

to be managed in accordance with the law of
the State, the provisions of this Act apply to

and in relation to the fishery -

with again that exception for foreign boats which is

found in section 121 of the Commonwealth Act. Now

that then, in our submission,as a matter of construction

is a law falling within section S(c) of the STATE POWERS

ACT, because it is a law with respect to fisheries

in Australian waters beyond the outer limits of

coastal waters to the extent that the arrangement makes

it apply to such waters. And then finally in

relation to the State Act we have section 5(6)(c) - - -

BRENNAN J: Are you saying that section 12L is more than a

withdrawal provision or not?

MR DOYLE:  No, Your Honour, I was not intending to, no. And

then in section 5(6)(c) of the State Act is the further

assertion of application of State law relying both on

the COASTAL WATER (STATE POWERS) ACT and on any other

basis available to the State. And so, in my respectful

submission, it can be seen, as it were, as picking up

the grant of power given by section 5 but also saying,

if there is any other basis on which State law can

validly apply to the fishery then it is to be applied.

(Continued on page 83)

ClT21/2/SR	82	15/2/89
Macdonnell

MR DOYLE (continuing):  So, in our submission, that then completes

the descriptive picture and produces the situation in

which the State law is applying now to the management

of this fishery. My learned friend also yesterday

in his submissions in relation to the State law put
an argument to the effect that the regulations, that

is, the State regulations for the management of the

fishery, I think he said may now be construed

differently. Again, I am not certain that I fully

understood the submission by my submission is that

we simply now have the situation that the State

regulations are to be construed in the same way as

they always were but they simply now may operate through a greater area and so nothing other than

the area of application has changed and on the

coloured plan that zigzag line with "southern

zone" against it which runs off the coast and down

through the area of the arrangement now simply marks

for State purposes what is the boundary between the

southern zone and the northern zone. In my submission,

there is no problem about simply applying the State
regulations to the management of this fishery.

Could I then go, Your Honours, to part D of the outline which is the validity of the STATE POWER

ACT under section 5l(xxxviii). And just two

preliminary points: it is our submission that there

is a quicker way home to validity, but I simply start

with this one as a matter of convenience and because

my friend has put submissions on it; and secondly,

my learned friend the Solicitor-General for New

South Wales has prepared some materials drawing on

the Convention Debates in relation to

section 5l(xxxviii) and without saying anything on

the topic I would simply adopt the submissions which

I understand he will advance based on the convention

debates.

Turning then, Your Honours, to section 5l(xxxviii),

the first thing, in my submission, which is significant

to note about section 5l(xxxviii) is the shift of

language. In the preceding paragraphs of section 51

there are references either to entities or individuals
or activities which have generally been called

''matters", the subject of leg is lati ve power, and then

in subparagraphs (xxxvi) and (xxxvii) those words

"matters1-1 are again used, obviously referring to the

activity which will be regulated. And then in

(xxxviii) "matters" is not used and the words used

are:

laws for peace, order ...• _. with respect to

..... the exercise within the Connnonwealth

..... of any power

So it is a significant shift of language from "matters"

to a law "with respect to the exercise of any power".

ClT22/l/BR	83	15/2/89
Macdonnell

In my respectful submission, the draftsman had in

mind there not a !aw directly regulating an activity

but a law with respect to the exercise of a power

which, in our submission, is a law which says who can

exercise it and under what circumstances and when.	In
our submission, that is a law with respect to the
exercise of a power and the draftsman must have
intended something slightly different by that change
in language and so he must have envisaged laws about
how powers are exercised as distinct from simply laws
regulating a matter directly.	It may be that

under this provision the law could be passed first of

all saying how and when the power can be exercised and

then immediately exercising it. So it may be, in a sense, the division does not matter much but, in my

submission, that point does not arise in this

particular case because the relevant laws here are

simply, that is, the COASTAL WATERS (STATE POWERS) ACT,

are just laws about who can and when they can and do not

go on and purport to immediately exercise the power,

the exercise of which has just been dealt with.

So the first thing I do rely upon is that shift

of language as indicating that the draftsman was

talking about laws of the sort exemplified by

section 5(c). In my respectful submission, if he had

in mind with these words, the law relating to who can

exercise a power and when and how, he must surely at

least have had in mind, as the objects of such a law

or the recipients of the power, the Commonwealth and
the State Parliaments. It may be that this provision

envisages the conferring of powers on some other

entity but again, that does not arise in this case

because the relevant law is dealing only with State reasonably think that the draftsman here did have in

mind a -1aw ·whtdi::was identifying who can exercise

powers as well as when and how.

(Continued on page 85)

ClT22/2/BR	84	15/2/89
Macdonnell

MR DOYLE (continuing):  Now, if you get to there you can

also, in my submission, say that he certainly

has not said "the exercise by the Commonwealth';

so there is no basis for suggesting, again, that

State parliaments are not potential beneficiaries

from the exercise of this placitum. Then one

has to address the question of whether by "within

the Commonwealth" what he really meant was to fix

a spatial limit or a geographic limit to the area

of operation of the laws made bv the beneficiary

of the exercise of the power. Now, as to that, my first

submission is - and this is not a compelling

consideration - but that prima facie his concern

is with laws saying who can exercise the law, who

can exercise powers and when and his concern is

not with what they do when they exercise the powers.

So he does not seem, in this provision, to

be particularly concerned with area of operation

of the laws.	He is simply talking about who can
make laws and when and how.	It is my submission

that he has used the words "within the Commonwealth"

as meaning the exercise by the Parliament of the

Commonwealth, or by the parliament or parliaments

of a State or States;	in other words, words
s imi la r to those found in paragraph (xxxvii).	So that

he has chosen within the Commonwealth, as a

convenient distributive expression,and one reason

why he may have used "within the Commonwealth"

is that he may have had in mind that in fact the

recipient would not necessarily be the Commonwealth

Parliament or a State parliament but it might be

some other entity. So he may deliberately have

wanted to stay away from the form of words found

in sect ion (xxxvii).

I cannot suggest any other reason why he would need to or want to stay away from that set of words

except that if they were built in to section (xxxvii) the whole provision starts to get rather cumbersome,

because it would then have to say something like

or by the parliament or parliaments of any State or	"the exercise by the Parliament of the Commonwealth
States, at the request or with the concurrence of the parliament of all States directly concerned",
and he may have just been looking for a more precise
way of saying it.

So my first submission is that, putting the

matter affirmatively, it looks as if what he was

doing was making a law about who can exercise a

power and when and that he was endeavouring to

indicate that certain entities which he was
indicating by the words "within the Commonwealth"

were the potential beneficiaries of such a law and, in my submission, the prime candidates and possibly

only ones, are Commonwealth and State parliaments.

ClT23/l/HS	85	15/2/89
Macdonnell

Putting it negatively, if he had intended

to indicate geographic limits to the operation
of the laws made he almost certainly would have
used the expression "within the limits of the

Commonwealth'', and in my submission, when we look
through the CONSTITUTION we find that when the

draftsman wants to indicate, as it were, maximum

area, or a limit beyond which you cannot go, that 1s

the expression he uses. When he is, as it were, sitting at the centre and looking out in terms of spread of laws he tends to use "throughout the

Commonwealth", or "every part of the Commonwealth",

or an expression like that, but when he fixes limits

which are the stopping point, the expression he does

use is "limits of the Commonwealth". Could I just

go briefly to the provisions referred co in the

outline.

DEANE J:  Mr Solicitor, you talk of who can exercise a power and when and how. There is nothing in this

Act that confines Commonwealth power, is there?

MR DOYLE:  Nothing in which Act, Your Honour?

DEANE J:  In the STATE POWERS ACT. I was not stating

it. I was asking you.

MR DOYLE:	No, Your Honour, I think not.
DEANE J:	Which means it would be more accurate to say,

would not it, that what has been exercised is a

power to extend or confine the constitutional

legislative powers of the States?

MR DOYLE:  Yes, Your Honour. In my submission section S(c)

is a law about who and when because it says State

parliament can do it when there is a fishery

arrangement. Its actual application in this case

is to extend the law of a State, and in another

situation it might conceivably, su9ject no doubt,

to arguments I and others would try to advance,

try to retract or stop State laws operating, but

it is still a law about who and when and how.

It is just that in this particular case its answer

is the States and they have extra powers in

relation to fisheries.

DEANE J:	But if you put it in terms of who and when you may get into difficulties in subsection (xxxviii) that
do not arise if it is extending or confining State
legislative powers.

ClT23/2/HS	86	15/2/89
Macdonnell

MR DOYLE:  Yes. Well, that may be, Your Honour.

DEANE J: Particularly because of the introductory

words of section 51.

MR DOYLE:  Yes.

In a sense those introductory words could cause problems, but one could link them to (xxxviii)

as saying it is for the peace, order and food government of the Commonwealth to sort out as

between the Commonwealth and the States this

division of powers by conferring them on the State.

So, in my submission, you do not really in the

end, at least in this case, run into problems with

those introductory words.

DAWSON J:  You are referring to peace, order and good

government not subject to the CONSTITUTION or

are you referring to earlier?

MR DOYLE:  I was referring to peace, order and good government.

Was Your Honour Justice Deane referring to

"subject to the CONSTITUTION"?

DEANE J: Yes.

MR DOYLE:  Yes, well, in this particular case, if I can

just jump ahead, it is our submission that there

are no particular problems, but I acknowledge

that in other cases there could be, putting it

the way I have, if things were done - yes, I

accept that, Your Honour, they could - - -

DEANE J: There may be an easy answer, but it avoids the

question whether at the time of the establishment of the CONSTITUTION anyone had power to limit the

legislative powers to be conferred on a

Commonwealth which did not then exist. It does

not exist in relation to State legislative powers.

MR DOYLE:  Yes. Your Honour, any path that lessens the

problems of this enigma shrouded in mystery would

be welcome.

Your Honours, I was going to the question

of whether the draftsman would have used limits
if he had in mind geographic extent. Covering

clause 5, in the third line of my print, talks

of laws being binding on courts and judges and

people of every part of the Commonwealth. That

is what I would call, as it were, an outward-spreading

type provision and then in the latter part just

talks of ports "in the Commonwealth". So there,

he is not, as it were, trying to draw that line

saying "Beyond this you shall not go". There did

not appear, on my reading, to be any other provisions

where this sort of issue would arise until you get

to section 51. Then what we find is in section 51 (iii)

CIT24/l/JM	87	15/2/89
Macdonnell

he uses "thoughout the Commonwealth" in relation

to bounties as indicating, as it were, the

spreading approach. In 5l(x) though, he has

used "limits" as indicating, in our submission,

a line to be drawn, be it at the low water mark

or the extremity of the territorial sea. In (xx)

he has referred to corporations formed within
"the limits of the Commonwealth", apparently again

referring to the place within which they are formed.

In (xxiv) he has used service and execution

"throughout the Commonwealth", again in that
spreading sense. In (xxv) again it is "throughout

the Commonwealth". There are no others that I

could see in section 51.

The next section I found that seemed to

possibly be relevant to this argument was section 92.

I assume one cannot make use of side notes in

interpreting the CONSTI'!UI'ION but I simply make the point

that he has used "within" there, but he is not,

in my respectful submission, using it again in the

sense of drawing a line around the thing because

he is referring to the content of section 92 which

deals with trade and commerce "among the States". similar to the way in which I read it in (xxxviii)

because he uses "within" as meaning "as between"

and in a sense in a distributive way. Then,

section 101 which again uses that word "within",

but it would appear to be in the same sense as
the side note to section 92 and not as attempting

to draw a line around the area of operation because

it is dealing with the interstate Commission

and having powers for the maintenance within the

Commonwealth of the provisions relating to trade

and commerce and bearing in mind that those

provisions primarily are section 5l(i) which is

"trade and commerce with other countries and among

the States".

(Continued on page 88)

CIT24/2/JM	88	15/2/89
Macdonnell

MR DOYLE (continuing):  So, when the draftsman is talking

of execution and maintenance within the Commonwealth,

of those provisions, he is talking of provisions

relating to things happening as between the States

and that is the sense in which "within the Commonwealth"

is used there.

Finally, section 118, which again has a spatial

sense, there the expression used is "throughout the Cormnonwealth" and again it is clearly used there in

that spreading sense and not in the sense of trying

to set a limit. Then, when one looks at provisions

relating to the States, one also finds that when there

is an intention to set a limit, that that word "limits"
is used. If we could go back, Your Honours, to

section 51, in section 5l(xiii), we find "beyond the

limits of the State concerned"; in 5l(xiv) it is

"beyond the limits of the State concerned" and,

if Your Honours will just pardon me, I am not sure

if I found any other - yes, subparagraph ~xxv),

again, "beyond the limits of any one State";
section 123 "altering the limits of the State" and
section 128, towards the end of the penultimate

paragraph, again, "the limits of the State" and

so the negative submission is that when the draftsman

has seen fit to, as it were, draw a line as indicating

this is the point beyond which something shall not

happen, he has fairly consistently used that expression

"the limits" and one would have expected him to use

that in section 5l(xxxviii) if that is what he had
in mind.

So, it is therefore my submission that for that reason one should not read 5l(xxxviii) in a

sense of setting the limit to the area of operation of

the laws. A further reason is, in my respectful

submission, the draftsman would have seen, in any

event, a territorial limit to the laws as being

contained in section 51 and so, if in some way, he

thought it was necessary to have a territorial limit

in this provision, he would have been mindful that

in the light of received thinking in 1900, the opening

words of section 51 would, in any event, have been

seen as imposing a territorial limitation on the

exercise of Commonwealth powers and I do not seek

to read from the cases in section 12 of the outline.

They are simply a few of the many cases, in my

submission, supporting the proposition that in 1900

the Commonwealth was regarded as having limited

powers of legislation extraterritorily and so the

draftsman would have considered that there was

already a limit built in in those opening words

of section 51 and one might also say why would he,

therefore, have added a limit again in 5l(xxxviii)

and possibly a stricter one, that is, the physical

ClT25/l/SH	89	15/2/89
Macdonnell

boundaries of Australia not even including the

territorial sea which, in those times, was regarded

as something in relation to which the Commonwealth

and the States could legislate to some extent and

to a greater extent than they could waters beyond

the territorial seas.

So, for those reasons, I submit that

section 5l(xxxviii) should not be construed through
those words "within the Commonwealth" as limiting,
in any sense, the area in which laws made in exercise

of that power could operate.

BRENNAN J:  Does that mean that at the commencement of the

CONSTITUTION 5l(xxxviii) contained a provision

which was potentially susceptible of exercise so

as to confer on the repositories of the power under

that paragraph a territorial jurisdiction wider than

that of the Federal Parliament?

11R DOYLE: Potentially, yes, Your Honour, but at that time any

exercise of the power in 5l(xxxviii) would itself

have been subject to such limits and would have been

seen by the draftsman as subject to such limits as

lay in the opening words of section 51 and, furthermore,

at that time, any exercise of the power would have been

subject to the element of control through repugnancy

to imperial legislation because, until the statute

of Westminster was passed, repugnancy was still a
fetter - if I can use that term - on the exercise of

any power in section 51, including 5l(xxxviii), and

so, in my respectful submission, was the unclear

and gradually eroding notion of limits on territorial

competence.

(Continued on page 91)

ClT25/2/SH	90	15/2/89
Macdonnell

BRENNAN J:  But would it not be implicit in your argument

that repugnancy would not have run against an exercise

of a power under section 5l(xxxviii)?

MR DOYLE:  No, in my respectful submission, the power in

section 5l(xxxviii) was subject to the same limits as

the other powers and so also subject to repugnancy.

DAWSON J:  The repugnancy could have been removed by the use

of section 5l(xxxviii)?

MR DOYLE:  Not in my respectful submission, I hope I am not

starting to go in an ever diminishing circle, but in

my submission, the power given by section 51 was in

1900 subject to the fetter of repugnancy. After the

Statute of Westminster - well in a sense the need had

gone, but that fetter was removed, but until then it

was still there and so a law under section 5l(xxxviii)

attempting to remove the fetter of repugnancy, it

would be a law, exercising a power which could only be

exerc1sed by the Parliament of the United Kingdom, but

it would be exercising it in a way which, until the

Statute of Westminster it could not be exercised.

So the content remained the same, but there was still

that external fetter on the power. And, in my

submission, the same does apply to all the other powers

in section 51. Until the Statute of Westminster was

passed, any exercise of those powers was subject to
repugnant imperial legislation. Afte.rwards the

content of the powers remained the same, but that

fetter on their exercise was removed and in my

submission the same reasoning is to be applied to

section 5l(xxxviii) and that is why it would not have

been seen at the time as enabling the sort of

dramatic thing to which Your Honour Justice Dawson

refers and that is why, post the Statute of Westminster

the ability to use the power had expanded, although

as it were descriptively, its content remained the same.

BRENNAN J:  Mr Solicitor, could I ask you a further question

about section 5l(xxxviii) and lateral boundaries? If

one had the concurrence of the Parliament of

South Australia for a relevant law which was then

implemented in the way in which we are concerned with

here, would the State of Victoria be a State concerned

with the exercise of power to extend the powers of the which might, as it were, overlap something in the nature of a lateral boundary?

MR DOYLE:  In that particular example, Your Honour, in my

submission, probably not. I note the word "directly

concerned" and while if it was an attempt to alter, say,

the State land boundary, clearly, yes. In my respectful

submission, if we are talking of altering State

powers in waters off Victoria it is, in my submission,

probably not a State directly concerned, if the argument

ClT26/l/SR	91	15/2/89
Macdonnell

is that it is directly concerned because this

expansion of South Australian power now brings it into

an area in which the Victorian Parliament ha.s an

interest in the broad sense, because it has in the

past been applying its laws there. But, Your Honour,

it may be that that is a question that could only be

determined on fairly precise facts, because it may be

if what the Commonwealth Parliament was doing was to

quite clearly displace existing Victorian laws, one

might then conclude that it is directly concerned.

But, if I can put it negatively, in my submission, it

would not be a State directly concerned, simply because

in a non-technical sense this law could be seen as

bringing South Australian legislative power into waters

in which Victoria had just a broad interest. So, ~

think my answer is, perhaps, that that is a quest.:. ;,n

which it is difficult to answer generally and you

might have to know quite precisely what the law was

doing and what were the circumstances under which it

was operating before one could say whether or not

another State was directly concerned.

BRENNAN J:  Can I take it from your answer that the directness

of concern may be a function of the distance from
the land mass of the State out to the waters in

question? In other words, in the instance we are

speaking of, South Australia is directly concerned

but Victoria is not directly concerned?

(Continued on page 93)

ClT26/2/SR	92	15/2/89
Macdonnell
MR DOYLE:	No, Your Honour.	In my submission, in that sort

of situation South Australia would be directly
concerned not because of the physical position

of the waters but because its powers were being

extended - that is why it would be directly concerned -

and Victoria may well not be directly concerned

because nothing is being done directly to its
powers and the mere fact that this is an area

of waters as to which the Victorian Parliament

might notionally say, "Well, we might want to legislate out there some day", that would not be enough for one to say, in my submission, that

it is directly concerned. But I acknowledge

you might get a different answer if you could

see, examining the facts, that what was in truth

being done was to displace right then and there

existing Victorian laws applying in those waters.

I do not assert, Your Honour, that, going

back to the South Australian side of the equation,

South Australia is directly concerned because

of where the water is. It is because of the

fact that it is the recipient of the enlarged

power.

Your Honours, my submission then is that section 51(xxxviii) did have those limits built

into it, that is, repugnancy and the unclear limit as to extraterritorial operation found

in the opening words of section 51, but that
those limits having been removed from the Commonwealth
by the Statute of Westminster, any exercise of
the power today is to be tested according to

the position today. Again, just as any exercise

of any other power in section 51 is tested obviously

in the light of constitutional development today,

so is section 51(xxxviii) but - and I am moving

now to paragraph 15 of the outline - when we

come to identify the relevant power, namely to

ask ourselves, "Well, is this a power which can,

at the establishment of this CONSTITUTION be

exercised only by the Parliament of the United

Kingdom?", we look at that, in my respectful

submission, through the eyes of 1900. We do

not say, "Well, today both Commonwealth and States

can legislate extraterritorially", and we do

not say, "Therefore a law dealing with the exercise

of extraterritorial powers is not within

section 51 (xxxviii)."

We have to answer that content question

through the eyes of 1900, in my submission, and

so what we have to ask ourselves is, "What powers

in 1900 were regarded as capable of being exercised

only by the Parliament of the United Kingdom?",

and I am leaving the Federal Council out because

I accept what my learned friend said, that it

had already gone out of existence.

C1T27 /1/SDL	93	15/2/89
Macdonnell

DEANE J: Mr Solicitor, to what extent does this depend on the

assumption that Commonwealth legislative power

does not extend to territorial fisheries?

MR DOYLE:  Not at all, Your Honour. In my submission,

if, in truth, the dicta in BONSER V LA MACCHIA

are wrong and section Sl(x) starts at the low

water mark, then the Commonwealth has an additional
area of power but, in my submission, it would

not in any way damage the submissions I am putting.

It might then cause us to say some slightly different

things but, perhaps generally only to say the

Commonwealth, in most of its FISHERIES ACT has

not tried to go as far towards the shore as it

could.

DEANE J: Section 12L still would not apply in respect

of territorial waters because of the definition

of "proclaimed waters", is that so?

MR DOYLE:  Yes, Your Honour. I think, if I could put it

this way, the operative provisions of the Act,

which section 12L retracts, do not apply in the

territorial sea because, as Your Honour said,

of the definition of "proclaimed waters".	So,
the other parts of the Act do not purport to apply in the territorial sea so although

section 12L might only retract Commonwealth law

outside the territorial sea it is not, in any

event - that is Commonwealth law - trying to

apply inside the territorial sea. So you would

not get - if this is what Your Honour had in

mind - the awkward situation of there being a

retraction outside the territorial sea and no
retraction inside it. That will not arise because

it does not, in any event, at the moment, purport

to apply inside.

DEANE J:	What I really had in mind was your references
to RAPTIS in paragraph 7 are to the judgments
of Mr Justice Gibbs and Mr Justice Stephen. I
would have thought what was said there would
require consideration of the effect, for example,
of ROBINSON and I was just wondering whether
one can simply disregard those references or what part they play in the argument.

(Continued on page 95 )

ClT27/2/SDL	94	15/2/89
Macdonnell

MR DOYLE (continuing):  It is conferring one aspect of,

one might say, the broad power. It is saying,

"You can do this in these circumstances". So,

on that part of the argument my concluding submission

is that section S(c) of the STATE POWERS ACT does

answer the description given to us by

section Sl(xxxviii) and that therefore it is a

law within section Sl(xxxviii). It is also my

submission that no particular problem in this case

arises under section 106 of the CONSTITUTION or
arises by virtue of an argument based on a

Commonwealth law in some way altering the Constitution of a State quite apart from section 106.

In my respectful submission, the reason for

that is the reason that was advanced in REG V FOSTER

which I refer to in the outline in relation to

the Statute of Westminster and the Commonwealth Parliament. I do not want to read from it, but could I just give Your Honours three page references

which I overlooked including in the outline;

pages 300 to 301, Mr Justice Menzies, pages 305

to 309, Mr Justice Windeyer, and especially

page 305 point 1 and pages 267 to 268 - I am afraid
I have not noted the name of the judge - but there,

Your Honours, the Court alluded to the Statute of Westminster and, in my submission, took the view

that the Statute of Westminster had not altered
the Commonwealth CONSTITUTION when it provided

that the Commonwealth Parliament could henceforth

legislate with full extraterritorial effect, and

it was not saying that that is because CROFT V DUNPHY

had already achieved that result. It was saying,

"This is not an alteration of the CONSTITUTION.

It is merely removing a particular obstacle to the

spread or extent of Commonwealth legislation"

and so, by a parity of reasoning, I would submit

that section 5(c) of the STATE POWERS ACT is not

altering the State Constitution. It is simply

giving to certain of its laws an added area of

operation. So while some other law, it might be

said, is an attempt to alter the Constitution of

a State, and depending upon what section 106 means

might run up against it, it is my submission that

this particular law does not for applying the

reasoning that has been applied to the Statute

of Westminster in relation to the Commonwealth.

ClT28/l/HS	95	15/2/89
Macdonnell

DAWSON J:	What about section 107?
MR DOYLE:	Your Honour, in my respectful submission -

one could perhaps argue this at length - but

the power does continue even though the

Corrrrnonwealth has said, "Well, in this situation

your laws may have an added operation." I

acknowledge it could be said to me, "That really

is a change of the power", but, in my submission,

the intent of section 107 is really, as it were, to hold the line, not to prevent some additional operation being given to a State law, but to

prevent powers from being taken away from a State.

DAWSON J:  So it would operate to prevent cutting down

of the powers?

MR DOYLE:  Yes, and so my argument may seem a little facile

in that I say, "Well, when you give us something

that is all right and if you try to take it away

you can't". In my submission, you have to look

at these sections in their context and they were

clearly what one might call preserving or saving

sections, not sections directed to the situation

we are looking at here. Again, I am not saying

that in no situation could it be said that a

law under 51 (xxxviii) ran up against sections 106

and 107. I am simply submitting that in this

particular case, looking at what has been done,

that problem does not arise.	I apply the reasoning
in REG V FOSTER.

So, for those reasons, Your Honours, it is

my submission that the COASTAL WATERS (STATE POWERS)

ACT, at least as to section 5(c) is a valid law

under section 5l(xxxviii) and if those submissions
are sound, well then we have at least finally

found an instance of the actual use of the section,

although I notice Your Honour Justice Brennan,

in- I am not sure what case it was, but suggested

that the GENEVA CONVENTIONS ACT of 1937 was another

instance of the sort of law that might have been

enacted under section 5l(xxxviii), that being a

law of the Imperial Parliament relating to the

use of the International Red Cross symbol. It

may have been in KIRM.ANI, I just cannot remember.

BRENNAN J:	KIR}fANI, yes, I think it was.
MR DOYLE:	Your Honours, they are my submissions as to the

COASTAL WATERS (STATE POWERS) ACT. Could I then go to

part E of the outline, Your Honours, and this is
now a different approach to the situation. It is

our submission that if we start with section 12L

of the Corrrrnonwealth FISHERIES ACT again, that

provides that:

CIT29/l/JM	96	15/2/89
Macdonnell

Where there is in force an arrangement under this Division ..... the provisions of this Act other than this Division do not

apply in relation to that fishery -

So all that requires, in my respectful submission,

is that there be an arrangement under the division

and while that probably would require that

section 12H(4) be valid, so that you do have an

arrangement under the division, my submission is

that is valid under section Sl(x):  we do have

an arrangement and so the Commonwealth law is

retracted from the fishery.

(Continued on page 98)

CIT29/2/JM	97	15/2/89
MacDonnell

MR OOYLE (continuing):  Now, it is my submission that that

having happened, section 109 is no longer an obstacle

to the operation of State law in relation to that

fishery and it then simply becomes a question of

whether the application of State law to that fishery is for the peace, welfare and good government of the

State of South Australia and, Your Honours, the word

"welfare" is the relevant word for South Australia.

That is contained in the Australian CONSTITUTIONS

ACT of 1850. For South Australia it is not'brder'.'

We were thought to be orderly enough as it was and

just needed help with our welfare.

Your Honours, I am not going to go to the cases of peace, welfare and good government. Perhaps it

can just be said in a nutshell that the current

approach taken by this Court is that those words

are to be construed liberally and not in any sense

narrowly or restrictively. Before I go to the facts

of the matter in support of the submission that the

application of State law to this fishery is for the

peace, welfare and good government of the State, could I deal, first of all, with the submission

which was implicit in my learned friend's submissions,

I think, that, at least in relation to fisheries or

in relation to fisheries in waters offshore, the

notion of peace, welfare and good government require
that there be an exclusive nexus and that the
subject-matter of the legislation be only of interest
to South Australia because, as I understood him, the

implication of his submissions was this: that the

line of equidistance to which he referred was the

relevant boundary line, not just as a matter of

construction - I have dealt with that - but also as

a matter of power because, if South Australian laws

went over the line of equidistance, they were now

applying in waters which were closer to Victoria

than to South Australia and that it could not be

for the peace, welfare and good government of our

State to apply its laws in waters which were closer

to Victoria than they were to South Australia. That

was, in effect, the submission which I understood him

to make.

Now, in my respectful submission, it has never

been suggested in the cases so far that a law is
for peace, welfare and good government of a State
only if it deals with a matter when outside the State

which is not of equal or some interest to another State

and so, in my submission, he was really endeavouring

to erect what would be a pragmatic solution to what

everyone can see is a potential problem, namely,

Victorian and South Australian laws trying to apply

to the same fishery. He was erecting a suggested

pragmatic solution to that problem into a constitutional

principle limiting the power of the respective legislatures.

ClTJ0/1/SH	98	15/2/89
Macdonnell

MR DOYLE (continuing): In my respectful submission, first of

all there is no authority in support of that approach

but secondly, in principle, it is not an appropriate

approach. Obviously, conflicting State laws applying

to an activity offshore is a highly undesirable

situation but, in my respectful submission, the notion

of peace, welfare and good government does not have

any concept of exclusivity built into it and there

is simply no reason to say that it cannot be, for

the peace, welfare and good government of South

Australia, to legislate in respect of an activity

happening just off the coast near Portland in

Victoria. It may or may not be, depending on the

facts, but the mere fact that those waters are far

closer to Victoria than South Australia is in itself

neither here nor there.	It is just one of the matters
to be borne in mind.

So going then, Your Honours, to the facts of

the matter, it is my submission that it clearly is

for the peace, welfare and good government of

South Australia that it legislate in respect of

this fishery not because it is the only one with

an interest in it but because the facts show that

there is a very~ignificant connection between this

fishery and the State of South Australia and that

that suffices to make the laws valid and,in a

nutshell, the connection is that - and I hope I do
not, in trying to abbreviate things,state any facts inaccurately - but it appears the vast majority of

fishermen in the fishery are South Australian

residents and working from South Australian ports.

It appears that the bulk of the catch in the fishery

is landed at South Australian ports. It is processed

at treatment plants in South Australia. Around those

treatment plants have arisen subsidiary industries

employing other people. And then the other thing is

that this is a finite resource and unless properly

managed there is a danger of the resource becoming

insufficient to maintain itself.

Now, that latter point, of course, does not

help choosing between South Australia and Victoria.
That point merely enables one to say it is desirable

that someone should manage this fishery but, in my
respectful submission, the facts in the special case

clearly provide a sufficient link to South Australia

for one to say it is for its peace, welfare and

good government to purport to manage the fishery.

So if that is accepted then, in my respectful

submission, even if section 5(c) of the COASTAL

WATERS (STATE POWERS) ACT is not valid as a law

under section 51(xxxviii) we can still say by what I

submitted in t11e outline was the shorter route home,

that we have a valid arrangement under section 12H(4);

section 12L has retracted the Commonwealth law from

the fishery and the State nay then as it asserts in section 5(6)(c) of its own Act, legislate in respect of the fishery in these waters not now pursuant to the STATE Pa.JER. ACT but under the or otherwise

provision at the very end of that section.

C1T31/1/BR	99	15/2/89
Macdonnell

MR DOYLE (continuing):  And so on that basis, in my submission,

State law can apply to this fishery quite independently

of the earlier submissions. Could I then go,

Your Honours, to part F of the outline and my first

submission is that it is not necessary for the Court to

consider the external affairs power in this case, that

validity for the scheme can be fnunded on either or

both of the arguments already advanced. However, if

as a result of the submissions of my learned friend,

the Solicitor for the Commonwealth, the Court decides

that it should or must, then in brief mv submissions

are these: first of all that section 12H(4) is not a

law with respect to external affairs because it simply

provides for a circumstance in which the State and
the Commonwealth may make a certain arrangement. Its
direct legal operation is not in relation to

matter which answers the description of external

affairs. The consequences of it may move into that

area, but in my respectful submission, section 12H(4)

itself is not properly so characterized. But perhaps

that is not the real candidate for external affairs,

presumably the real candidate is section S(c~ of the

STATE POWERS ACT. And I have dealt with that in

paragraph 24 of the outline.

Our submission is that section S(c) again cannot

be characterized as a law with respect to external

affairs. It is a law with respect to the competence

of a State Parliament or the exercise of extraterritorial

legislative power by State legislature or the words

could probably be changed around in slightly differing

ways. But however one approaches it, in my submission,

the long and short of it is, again using what I
understand to be the favoured approach to characterization,
the direct legal operation of section S(c) is on the

powers of a State Parliament and it matters not that

the consequence may be that we have some laws applying

outside Australia, it is properly characterized, not
as a law with respect to external affairs, but as a law

with respect to an internal matter, an aspect of the

powers of a State Parliament or an aspect of the operation

of its laws and the mere fact that the relevant aspect

is extraterritoriality does not turn it into a law

with respect to external affairs. If the Court was against
me on that, my submission would be that if section 5(c)

is a law with respect to external affairs it is not such

a law simply because it has effects in areas geographically

external to Australia, it is such a law because the thing

it is dealing with is a matter of international interest

and concern and no ~oubt, to shorten this part of the

submissions, the Court can see that what I am, in effect

edging towards, is submitting to the Court that in this

case it should not see it as necessary or appropriate to

deal with the issue of whether in fact the external

affairs power is i~voked by the mere fact that the

relevant thing is geographically external to Australia.

ClT32/l/SR	100	15/2/89
Macdonnell

MR DOYLE (continuing):  In my submission,it is not necessary

to go to that issue but furthermore, in my submission,
in the present case there are plenty of other

factors which could provide a basis for saying this was an external affair on the approach of international interest and concern in, namely,

the exploitation of marine fisheries which are
of ereat international interest and concern

witness the fact that section 12L itself still

leaves the Commonwealth dealing with foreigners

fishing in a fishery the subject of a management

arrangement.

So, Your Honours, my submission is that the

Court does not need to go to external affairs,

that S(c) cannot be characterized as such a law

but if it can it is for reasons other than

mere externality. The final point, Your Honours,

is that, in my submission, in no sense could it be

said that the STATE POWERS ACT alters State limits.

Your Honours, I think I have completed my submissions

but if the Court was going to adjourn now could I

just look over them over the lunch hour in case

there was any other point?

MASON CJ:  Yes, certainly, Mr Solicitor, and you might tell

us what answers you would advocate to the particular

questions in the stated case.

MR DOYLE:  Thank you, Your Honour.

AT 12.45 PM LUNCHEON ADJOURNMENT

ClT33/l/MB	101	15/2/89
Macdonnell

UPON RESUMNG AT 2. 18 PM:

MASON CJ:	Yes, Mr Solicitor.
MR DOYLE:	If the Court pleases, just one very short point

of clarification:  although I argued this

morning that the line of equidistance should not

be accepted as a matter of power or construction

I may have left the impression that I was accepting

that the furthest the State could go was the

southward prolongation of the border, that is as

far as it has gone. My submission is that under

the Acts it arguably could go further, but certainly

it can go as far as it has in a lateral sense,

an1 that was the only additional point I wish to

raise.

Turning to the questions raised in the case,

Your Honours, at page 45, in our submission the

answers should be as follows; question 1, yes,

question 2(a), yes, question 2(b), yes,
question 3, yes, question 4, no, and question 5,

either shortened to stop after "Australia" in the

fifth line or going for its full length - perhaps

in the shortened form, yes, and we agree it is

not necessary to go into the second part of it.

If the Court pleases.

MASON CJ:  Yes, thank you, Mr Solicitor. Mr Solicitor

for the Commonwealth.

MR GRIFFITH:	If I could hand to the Court our submissions.
MASON CJ:	Thank you.
MR GRIFFITH:	If the Court pleases, we do have some

supplementary materials, if I may hand them also

to the Court.

MASON CJ:  Certainly. Yes.

MR GRIFFITH:  As an exercise in co-operative federalism,

we are somewhat disappointed at the appearance

announced by my learned friend,Mr Davies,wherein

he announced he was appearing to support the first
defendant only, but if we could indicate to
the Court that we would concur with the submissions
of my learned friend, the Solicitor-General for
South Australia as to aspects other than issues
of power of the State with which we do not intend
to engage in our submissions, and as is implicit in

our contentions, we leave that matter for my learned friends the various Solicitors-General and Mr Davies

to cover.

ClT34/l/HS	102	15/2/89
Macdonnell

MR GRIFFITH (continuing):  So, on that basis, to refer to

the matter last mentioned by my learned friend,

Mr Doyle, we would answer the questions as proposed by him other than we would have no submission to make on 2(b) and would otherwise concur in the

modifications that he proposed, for example, with

question 5. We doubt that it is necessary to answer

4 but the answer would be no.

My learned friend, Mr Williams, handed to the

Court a photocopy plan this morning which had plotted

indicative equidistance lines. We do not seek to rely

on that with any particularity but, perhaps, in answer

to the point raised by Justice McHugh to my learned
friend, Mr Doyle, could we refer to the sliver of
land that one picks up from that map, the triangle

between the line of indicative equidistance and the

line marking the adjacent area boundary by reference

to the PETROLEUM ACT definition. Of course, that

line, in so far as it passes beyond the three mile
limit, coincides with the meridian at the land border

between Victoria and South Australia but we would

submit that there is no problem area about the sliver

of this sort or any other area within the area of

territorial sea.

When one looks at map 1 and map 2 that my

learned friend,Mr Williams handed to the Court

yesterday, one sees a closing line drawn across

Discovery Bay and there plotted - that is the line QP -

the line RS being a three mile distance seaward of

the line PQ but, of course, there is no closing line

drawn pursuant to the SE.ASAND SUBMERGED LANDS ACT

provisions with reference to Discovery Bay. Perhaps

if I could just indicate to the Court briefly the

position as to the base lines in South Australia,

the Court will recollect that the provisions of the

SEAS AND SUBMERGED LANDS ACT made provision for the

drawing and proclamation of base lines and that one

of the provisions of the Act, section 8, enabled

declaration of historic bays and historic waters to

be made by the Governor-General when he was satisfied

that a bay is an historic bay and, in fact, by

proclamation of 31 March 1987, various bays in

South Australia such as Encounter Bay, Lacepede Bay

and other bays were proclaimed as historic bays and

new base lines proclaimed in respect of those bays shore in respect of that bay.

but there was no such proclamation in respect of

(Continued on page 104)

ClT35/l/SH	103	15/2/89
Macdonnell

MR GRIFFITH (continuing):  But it may well be, as my learned

friend suggested, that some such lines as he has

drawn have been used as reference points when drawing

the line for the purpose of the PETROLEUM ACT but

we would submit that is by-the-by. So far as the

triangular area identified landward of the three mile

limit on this plan is concerned, we would comment

that section 6 of the SEAS AND SUBMERGED LANDS ACT

provides that the sovereignty in respect of that area as with other areas of territorial sea lies

with the Commonwealth so that we would submit when

one has regard to the territorial sea round Australia,

there is really no relevance to consideration of

issues as to where are the boundaries of the

territorial sea between adjacent States.

Now, in respect to particular matters it may be that particular areas or particular lines are

chosen for purposes in respect of marking off

boundaries for the exercise of jurisdiction by one

State or another. One example of such a boundary, of course, is that which is drawn under the

PETROLEUM ACT which is charted	on my learned
friend	Mr Williams' plan and has also been charted
on our plan.	And we would say the significance of

that is that for the purpose of that Corn.rnonwealth

legislation there is a particular line in that part

of the territorial sea which indicates the point

which is dividing the area of interest of one State

with another.

For other purposes, other lines may be drawn.

For the purpose of the arrangement which is under

consideration in this case, the line has been drawn

which is the meridian 140 degrees 57 minutes 8 seconds,

I think is the precise meridian, but that coincides for a distance of about 7 miles with the line which

is that provided in the PETROLEUM ACT and which

coincides with the vertical line here and, of course,

is the line which one picks up from the blue map.

We would submit that other lines may have been

chosen for particular purposes but it is just a matter
of inquiry in a particular case to see what is the

relevant valid legislative scheme making provision

as to boundaries. But it is our submission that

there is no principle as between States;that one

might apply the same rule which could apply between

international states and go for a line of equidistance

in the absence of some other agreed boundary line.

So that it would follow from that, in our submission,

there is no inhibition upon South Australia exercising

jurisdiction which otherwise it may have in respect

of an area which might be represented by the
prolongation of the meridian rather than the line

of equidistance which is calculated.

ClT36/l/BR	104	15/2/89
Macdonnell

MR GRIFFITH (continuing):  I think my learned friend, the

Solicitor-General for South Australia,did in his

submissions make it clear to the Court that his

~ubmissions would embrace the possibility of the
South Australian jurisdiction moving beyond the line

of equidistance and we would concur with that submission.

BRENNAN J:  Does that leave the situation thus, that under

between the application of the laws to neighbouring the CONSTITUTION there is no machinery for distinguishing of each State has exercised its power?

MR GRIFFTTH:  Your Honour, it would depend on the legislation.

I think my learned friend, the Solicitor-General, made

a submission that one could have regard to circumstances

to decide the extent of an adjacent area which may

have a sufficient connection with the State to justify

State legislation applying to it. Now that could be

an issue of fact, Your Honour, as to the particular

matters, for example, that are covered by the case

stated and we would submit, Your Honour, it is to be

resolved by reference to particular issues which arise
in the circumstances to be considered, rather than some

general principle, for example, saying in the absence

of some valid provision that it is equidistance or

something of that sort. It can be a different place for

a different purpose, Your Honour, and it could well be

that in some circumstances one State validly could

legislate in respect of activity which is in the

territorial sea immediately adjacent to another State

It depends on the circumstances.

BRENNAN J:  And both may legislate with respect to activity

in that place?

MR GRIFFITH: Yes, that would follow, Your Honour, yes.

BRENNAN J:	And then?
MR GRIFFITH:	Your Honour, it would be a question in respect

of the purported application of any one of those

legislations as to whether it was within power. If

it was immediately adjacent to State, well probably

there would be no difficulty. If it was a connection which was more tenuous, well then we would suppose it

would be a question of the particular circumstances.

BRENNAN J:  Docs your answer assume that it is impossible for

a particular proscribed act to be within the legislative

power of two States?

MR GRIFFITH:  No, it does not, Your Honour, one could have the

same act proscribed by two States.

ClT37/l/SR	105	15/2/89
Macdonnell

BRENNAN J:  And if it is, is there any mechanism by

which one law prevails over the other?

MR GRIFFITH: We would suppose not, Your Honour. Perhaps

if I could hesitate and say this is an aspect
where, as we indicated, we do not in our
submissions tend to make primary submissions
because we would hope, Your Honour, to confine

our submissions to issues relevant to validity

of Commonwealth laws. The matters that Your Honour

engaged me on are areas of the extent of

extraterritorial jurisdiction of the States and

whilst conceding this general principle, Your Honour,

that there is such jurisdiction, the Commonwealth

does regard it as a matter of particularly State

concern to defend the metes and bounds, if you like,

of the exercise of that jurisdiction. We would

regard the matter Your Honour raised as going into

that area.

BRENNAN J:  And you are not concerned to propound any

section of the CONSTITUTION as bearing upon

that subject?

MR GRIFFITH:  Your Honour, I suppose in some circumstances

full faith and credit might enter into it. It

would depend on the circumstances. There might

be some implications from the nature of the

Commonwealth itself, Your Honour, that could be

drawn. At the end, Your Honour, we would suppose

that it would depend upon the particular circumstances

that a State relied upon as giving it a valid

legislative reach which on the face of things would

seem to be extraterritorial, but none the less

a State justifying in the circumstances of that

breach. Of course, Your Honour, really it is for

the State to matk out why it would say in the

circumstances it does have that extraterritorial

power. Of course, after the AUSTRALIA ACTS

Your Honour, there is an extraterritorial power

and questions of the ultimate reach of that

perhaps should be explored as the occasion arises.

We would submit in principle, Your Honour, there is no inhibition on States separately legislating

in respect of activity in the one geographical
area external to the coastline. That does not take

with it an implication that the legislation must

be valid, Your Honour, but it depends.

(Continued on page 107)

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BRENNAN J:  I will just delay you with one further question.

It is not any part of your submission that the

extraterritorial power of the States is limited

in any respect with respect to fisheries or the

exploitation of other seaborne resources?

MR GRIFFITH:  Your Honour, it was intended to be our submission

that we had no submissions to make about the

extraterritorial power of the States.	We intend
to leave that to them, Your Honour.	Anyway,

we would regard it as a voluntary interference,

Your Honour, if we seek to articulate in that

matter of State interest what the States, we

would suppose, are able to articulate for themselves.

So that leaves it as a negative, Your Honour,

but we would submit that that is an issue for
State submissions rather than Commonwealth submissions.
This issue here, Your Honour, is not one of clash,
as we see it, Your Honour, where there is a

Commonwealth interest to limit the State but,

of course, it may have consequences on another

day, Your Honour. But for the moment we do not

seek to make substantive submissions on that

issue.

Your Honours, may I deal with another matter of fact which Your Honour Justice Brennan raised

with my learned friend, Mr Doyle. I think

Justice Deane also referred to it. That is the

question of whether potential fishermen, or

fisherpersons, would know which law would apply

to them absence a defined line of boundary as to the area which might be the subject-matter of arrangement.

We would say as to that, Your Honour, that

the position would be clear for those who potentially

might be affected. Firstly, Your Honour, prior

to the arrangements all fishermen were required

to hold State or Commonwealth licences. The

South Australian Director of Fisheries was able

to advise all fishermen in writing of the new

arrangement and that appears in the special case

page 37 paragraph 7 and that is also referred

to in the statement of claim on page 12 of the

case stated. That was a letter addressed to

all the fishermen who were involved in the area.

I am instructed that the Department of

Primary Industries and Energy, the Commonwealth department, has provided a sketch map widely

distributed showing the area subject to South

Australian jurisdiction and also, of course,

the area subject to Victorian jurisdiction.

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MR GRIFFITH (continuing):  The rock lobster fishery is, as we

know from the facts in the case stated, a major

commercial enterprise, that appears in paragraphs 8 and. 9

of the amended special case. The average wholesale

catch is $100,000 per licence. Licences are restricted

and may be transferred and they have a very high

transfer price. So, we would submit, Your Honour, that

it becomes a matter of obvious inference that licenae
holders who have this valuable. franchise are aware

of the State fishery requirements, have been specifically

made aware of the arrangements and have specifically

been made aware of the areas by reference to which those

arrangements operate. Now,as to persons who are not

law which ~re that you cannot go fishing with

licensed fisherrren within that defined category, of the

lobster pots, et cetera, for crayfish in these areas.

The only permitted activity, I gather, is an amateur

swimmer catching them by hand and not for sale. So that

as a matter of reality, we would suppose that there is

no practical difficulty as to someone engaged and

possibly affected by the arrangement knowing, subject

to issues of validity, how the operation of the

arrangements do affect them.

Your Honour, perhaps before we leave this question of any boundary between operation of State laws applying

extraterritorially, oae could suppose in the event

that there were,_, what might be termed,an unacceptable

clash in purported operation of State laws, there

would be scope for Commonwealth legislation to resolve

that conflict. For example, under - one could suppose

external affairs power would be one obvious source or

possibly under section Sl(xxv) dealing with recognition

throughout the Commonwealth of the laws and public

Acts of the States. So that there would seem to be

a mechanism, but it is one that hitherto there has not

been occasion to exercise it. Before turning to the

primary issue, as we address ourselves, of the validity

of the Commonwealth Act, we would like to make a few

observations on my learned friend, Mr William's

submissions, as to the meaning of "beyond" in section S(c)

of the Commonwealth Act, as being restricted somehow
to a relationship to the nearest coastal waters, this
concept of equidistance. My learned friend said it is

a matter of no consequence that the petroleum line,

when plotted accurately in relation to the line of

equidistance, does not coincide, was his first

submission; but we would submit that this plotting and

counter-plotting is merely indicative of the fact

that there is really no significance in particular

lines when one is considering what is the meaning of

"beyond"in this context.

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J:1R GRIFFITH (continuing):  Our submission is "beyond" means

just that: beyond. Of course, it is a matter

of obvious observation that whatever a person in a

boat with accurate navigation equipment might consider

is his position, the crayfish underneath the water

knows no boundaries. These lines mean nothing

to them. This obvious enough point is one which can

be established as having influenced the course of

the enactment of the legislative scheme which is

now being considered. If I could take the Court

briefly to the extracts of Hansard dealing with the

FISHERIES AMENDMENT ACT. That appears in the

materials, in particular Hansard 23 April 1980 at

pages 37 and 39 of the materials I have handed to

the Court. At page 37, about the middle of the

right-hand colunm, the then Prime Minister in

referring to the Fisheries Amendment Bill makes

the point that:

Flexibility is the keynote of the proposed

legislation. The measures have a practical

objective - to provide a sound legal and

administrative basis for a practical approach

under which a particular fishery can be

regulated by one authority under one set of

laws, without regard to artificial jurisdictional

lines.

And this point was spelt out by the minister on page 39

in the second reading speech to the Fisheries

Amendment Bill. There, referring to this legislation,

the minister said, in the right-hand colunm:

The Bill creates a legal and administrative

structure, the objective of which is to

rationalise the roles of the Commonwealth

and the States in managing Australia's

fisheries. The Bill will depend for its

success heavily on close and co-operative

relationships between the Commonwealth and

the States.	But given those, the Bill has the
potential to eliminate many of the artificial

lines on the sea that fishermen have been

required to observe hitherto even though the

fish do not. It offers also the prospect of

liberating fishermen from the need to hold a

multiplicity of licences in order to comply

with Corrnnonwealth and State fishing laws.

The Government regards as important the

way in which the Bill enshrines the federal

nature of fisheries jurisdiction and management
in Australia. It provides mechanisms for the

Commonwealth and a State or States to consult and agree on management of a particular

fishery and then for one or the other to apply

its laws to implement the agreed measures

ClT41/l/BR	109	15/2/89
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throughout the fishery, whether adjacent

to one or several States, whether within
or beyond the three-mile limit. I emphasise
the words 'consult and agree' which form the

basis of the actions contemplated not only

by this Bill but also by the complementary

Bills which all the States and the Northern

Territory are to enact.

The provisions of the Bill have been the

subject of long and detailed consideration by

the Standing Committee on Fisheries and the

Australian Fisheries Council. They have each

met several times to review its progress and

direct the next stages. So too have the

Standing Committees of Solicitors-General and

Attorneys-General. Of course, it has been on the

agenda for the last three Premiers' conferences.

As a result, the Bill has already had long and

careful scrutiny by all governments and I ask

the House to note accordingly that the Bill

is very much a national exercise and not merely

a Commonwealth one.

This aspect perhaps is reflected also in the observations

of the then Chief Justice in BONSER V LA MACCHIA,

122 CLR 177, at page 193. Others of Their Honours'

judgments in that case have made similar points but

at page 193 His Honour said:

There may have been much to be said for the

view that the legislative power with respect

to all fisheries in all Australian waters

should have been vested in one authority,

particularly as those waters wash the shores
of all the States and no "inter-State"

boundaries in the waters around Australia are

readily definable in a practical sense by those

who fish in the sea.

(Continued on page 111)

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MR GRIFFITH (continuing):  Now, that might have been taken

as an indication that one possibility might have

been for Commonwealth jurisdiction to exercise

indiscriminately over all areas but, of course,

the result of the legislative scheme which has been
enacted is to provide for the effective participation

by the States and, we would submit, on the basis of

flexibility rather than artificial lines drawn by

reference to State boundaries by reference to

equidistance or any other criteria.

In BONSER V LA MACCHIA, the judgment of

Justice Kitto at page 206 to page 207 is, we would

and "waters adjacent to the territory" in the

submit, consistent with this general approach.

FISHERIES ACT 1952 to 1966, His Honour said:

must necessarily be interpreted as

referring to waters which lie in such

a physical relation to Australia in the

one case and to a Territory in the other

that by reason of that relation the

regulation of fisheries in those waters

is relevant or incidental to the government

of Australia or the Territory.

We would propose that this supports generally the line of approach which was submitted by my learned

friend Mr Doyle as indicating that there is a firm

intention in the provisions, particularly of

section 5(c) of the Commonwealt½ Act for there

to be flexibility as to boundaries, we would submit

certainly not any tie to requirement of

jurisdiction limited to the physically nearer State

at any given point, and one sees from our little

chart, if nothing else, that a line of equidistance
is a difficult line. It is not a straight line.

It is one which has to be plotted.

One sees at the bottom of the chart several

plotting lines in the course of just a few nautical

miles to take account to the offsetting effect that

one might have of adjacent land masses. The

particular movement to the east in the line is,

I gather, caused by the increasing effect of

Cape Nelson as one goes offshore and if one goes

further offshore it might end up that even

Wilson's Promontory could have an effect

compared with the nearest line of the South

Australian coast.

Turning then to the question of validity of

the COASTAL WATERS (STATE POWERS) ACT 1980, our
first proposition, of course, is obvious and usual

enough. It is one, of course, that commonly the

Commonwealth refers to in respect of various of

ClT42/l/HS	111	15/2/89
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the powers in section 51 and it is not necessary
to remind the Court, for example, of the manner

in which Justice Brennan in the COMMONWEALTH V

TASMANIA, 158 CLR 1, at pages 220 to 221, commented

on the application of the JUMBUNNA principle and

how that was discussed in the SOCIAL WELFARE case,

but the point we make as to this principle here

is that we would submit that placitum (xxxviii)

presents the strongest possible case for application

of that principle of construction because it involves

no element of competition with the States, that

we would submit there is no scope for any

implication to restrict the broadest view of what

was intended, we would submit, to be a plenary power

exercisable by the Commonwealth, but at the request

of States affected by its exercise.

Of course, there is no issue here but that

the exercise has been enacted at the request of all the parliaments of the States, and we list the various Acts without going to them which make

that request, and we submit that a law with respect

to the exercise of a power encompasses both a law

which enables the exercise of a power and a law

which in itself is an exercise of that power.	For
the nature of the powers which may be exercised under the section it is necessary, as my learned

friend Mr Doyle did, to refer to the relative

positions of the imperial and colonial parliaments

immediately before the coming into force of the

CONSTITUTION.

The uniqueness of the power of the United

Kingdom Parliament and, up until its abolition, the

F:S:DERAL COUNCIL OF AUSTRALASIA, by reference to the

powers of the colonies of Australia, fall to be
judged at that date, but we join with my learned
friend's submissions that that examination does not
entrench the limits of Commonwealth power as they

might have been immediately after the establishment

of the CONSTITUTION, but by reference to limits
which have since been removed.	So that it is clear,

of course, that whereas regard to the Commonwealth

Parliament on its establishment may have been limited in its power as to legislation extraterritorial to it, or as to the repugnant

legislation, those limits have been removed and at

least no later than the Statute of Westminster

there is no relevant limitation, in our submission,

so far as exercise of Commonwealth power is

concerned.

ClT42/2/HS	112	15/2/89
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TOOHEY J:	Mr Solicitor, how do you identify the power which you say has been exercised in terms of
placitum (xxxviii)?

MR GRIFFITH: In this case, Your Honour?

TOOHEY J:	Yes.
MR GRIFFITH:	Your Honour, perhaps it can be done two

ways, but, Your Honour, it can be done on the

basis that it is the exercise of a power to

confer extraterritorial legislative competence

on the States. We say that is what is done

by section 5(c) and we would submit, Your Honour,

that - I do not know whether my learned friend

Mr Williams really contended to the contrary -

that that was not a power which the States had

in 1900. But, Your Honour, whether one says the

effect of section 5(c) is to be characterized

as enabling the exercise of extraterritorial

legislative power by the States or is an

exercise of power to confer extraterritorial

legislative competence on the States, we would

submit, one gets to the same result of saying

it is within the words of the placitum.

We submit that in 1900 it was generally

considered that the Imperial Parliament had

plenary and exclusive power to legislate

extraterritorially and to confer legislative

competence on colonial legislatures in relation

to extraterritorial and territorial legislation.

The CONSTITUTION was, as my learned friend

Mr Doyle submitted, framed in the context of the

traditional view that colonial legislative powers

were confined by the strict territorial limitations

by reference to principles as to the extraterritorial

operation of laws. As Your Honour Justice Deane

referred to in BREAVINGTON V GODLEMAN. particularly

in 80 ALR, 362 at page 409, this historical fact

is not altered by any subsequent recognition

of the weakness of the view or the fact, of course,

that there have been changes as to the position

of the States as to extraterritorial legislation put

beyond, of course, contrary assertion by the

provisions of the AUSTRALIA ACTS. But that

remains the historical perception no matter how

one now looks back on it and seeks to engage in

argument that other views might have been tenable.

In our materials at pages 21 and 22 we

contain an extract from Quick and Carran and

at page 650, which appears on page 21, Quick and

Carran state that "there were three classes of

power which in 1900 were exercisable only by the

United Kingdom Parliament". They say, "(a) Power

to enact laws repugnant to imperial legislation,

(b) Power to enact extraterritorial legislation,

CIT43/l/JM	113	15/2/89
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and (c) Power to enact legislation regarding

certain matters that were excluded from State

legislative power by virtue of the Constitutions

of those States."

My learned friend, Mr Williams, referred to the judgment of Justice Gibbs in KIRMANI,

159 CLR, 351 at pages 372 and 373, where His Honour
suggested that placitum (xxxviii) could have

been used to repeal Part VIII of the MERCHANT

SHIPPING ACT in so far as that was part of the

law of New South Wales. There has already

been some reference to the difficulty in

applying this placitum in relation to the powers

of the FEDERAL COUNCIL OF AUSTRALASIA because it

was abolished by covering clause 7 before the

CONSTITUTION was proclaimed. This difficulty was

specifically pointed out firstly by Sir Isaac Isaacs.

which one picks up in the Convention Debates at

page 18 of these materials, at the foot of the

right-hand column on page 18 and Edmund Barton

made specific reference on page 19 of the materials,

beginning at the bottom of the left-hand column

to this issue and indicated that attention would

be given to it.

(Continued on page 115)

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MR GRIFFITH (continuing): Well, it seems that their attention

might have been given to it but the conundrum was not

resolved. But it would seem that this was a problem

which, at least, was not seen as one which affected

what otherwise would be the operation of this

provision.

Of course, as we have seen in the FEDERAL COUNCIL OF AUSTRALASIA ACT as annexed in these materials,

commencing at pag2 1, under section 15(c) the Federal

Council had legislative authority in respect of

fisheries in Australasian waters beyond territorial
limits. As to that, we would - well, perhaps, I

will refer to territorial limits in a moment but we

would submit that,when one has regard to the expression

"within the Commonwealth", the words "within the

Commonwealth" naturally, in our submission, read as

referring to the place of exercise of the power.

In some sense, of course, one could characterize

the exercise of power in this case as not dealing with

the exercise of the power under placitum (xxxviii) in

an extraterritorial manner at all in that if one

regards the exercise of the power to be the conferring

of the power on the States to legislate, then that

power is conferred on the States, on any view, within

Australia. But, of course, it is a power which is

contemplated to be exercised in a manner which may

have extraterritorial effect but, if that is regarded

as having any significance, in our submission, the

words "within the Commonwealth" in this placitum

are to be read not in a geographical sense. The
exercise of a power within the Commonwealth, of

course, contrasts with the exercise of a power at

Westminster in the case of the Parliament of the

United Kingdom or in any of the Australian colonies

including .three Australasian colonies, including Fiji and

New Zealand in the case of the FEDERA.i... COUNCIL OF

AUSTRALASIA ACT. That is within the definition of

section 1 and section 7 of the FEDERAL COUNCIL OF

AUSTRALASIA ACT.

The Convention Debates indicate that this meaning

of "within the Commonwealth" is clearly what the

framers had in mind. The phrase "within the

Commonwealth" were in the original draft of the text

presented by Sir Samuel Griffith in the 1891 convention.

The various drafts appear in extracts commencing on

page 7 of our materials. But, in 1891, in speaking

of the draft as a whole, Sir Samuel Griffith, at

page 13 of the materials, made reference to this

aspect. On page 13, right-hand column, having set

out the provision as it was then drafted, he said:

Cu.44/1/SH	115	15/2/89
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We are aware, sir, that there are many

things now upon which the legislatures and

governments of the several Australian colonies

may agree, and upon which they may desire to

see a law established; but we are obliged,

if we want that law made, to go to the

Parliament of the United Kingdom, and ask

them to be good enough to make the law for us;

and when it is made we will obey it.	I
contend, for myself, as I have had an

opportunity of saying before, that after the
federal parliament is established anything
which the legislatures of Australia want done
in the way of legislation should be done

within Australia, and the parliament of the

commonwealth should have that power. It is

not proposed by this provision to enable the
parliament of the commonwealth to interfere
with the state legislature; but only, when

the state legislatures agree in requesting

such legislation, to pass it, so that there

shall be no longer any necessity to have

recourse to a parliament beyond our own shores

when once this constitution has been passed by

the Parliament of the United Kingdom.

We, of course, would refer to that generally as supporting our first proposition as to the general

approach in construing the ambit of this power.

In the 1898 Convention, Mr Isaacs expressed

some puzzlement of the words. However, at page 225

of the proceedings of 27 January 1898 which appear on page 18 of our materials, just about the middle

of the column, he said:

(Continued on page 117)

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MR GRIFFITH (continuing):

The effect of the whole matter may extend

beyond, but the exercise of the power is

to be within the Commonwealth, and it is

to be exercised at the request or with the
concurrence of the Parliaments of the states

concerned.

So that would seem to be in anticipation by

Mr Isaacs, as he then was, of this issue, and

indicating a firm view as to how he saw the meaning.

As we noted, he also went on to question the

ambit of this clause and if one turns over to

page 19 of the materials, he questioned whether

the clause was not so wide as to cause the Imperial

Parliament to reject it. In the end it was not

rejected but one can see why he was concerned

about that because of the obvious effect which

was foreseen by Sir Samuel Griffith and also

by Mr Isaacs and, one would suppose, the other

delegates.

The extract of Quick and Carran to which

I have referred in the materials, at page 21,

indicate that when the bill went before the Imperial

Parliament the clause was referred to as "raising

a doubt as to the application of the COLONIAL

LAWS VALIDITY ACT". However, the conclusion was that, I think, an opinion was given that

it did bind the Commonwealth and the matter was
not taken any further.

At page 650 the learned authors in Quick and Garran conclude that the words "within the

Commonwealth" exclude a construction which would

enable the Commonwealth Parliament to enact

extraterritorial laws. We would submit, with

respect, that this conclusion made is one which

does not seem to be supported by any reference

to context, any reference to what one might

perceive as the intention of the framers and,

indeed, was seen to be quite inconsistent with

the references we have just made as to relevant
discussions.

In concluding this narrow view, also, the authors admit that if one adopts it it effectively

robs placitum (xxxviii) of any substantive operation.

It may well be that it did not have a substantive

operation for the first four score years of the
Commonwealth but, in our submission, the issue of basic construction is one which is to the

contrary of that which was predicted on page 650

by the authors in Quick and Garran.

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Whatever might have been the position in

1900 we would submit that certainly since the

Statute of Westminster Adoption Act there can

be no reason in principle for failing to give

the words the broad, natural meaning. This is

an issue discussed by Professor Zines in the

second edition of his "High Court and the Constitution".

We have extracted the relevant part of a discussion,

page 23 and following of the materials, and,

with respect to the author, we would adopt the

approach which he there makes.	On page 29 of
the materials, he concludes:

The words "within the Commonwealth" point

up the fact that any conferred law-making

power can be given to a legislature within

the Commonwealth - that is either federal

or State - whereas hitherto it had only

been capable of exercise by the legislature

of the United Kingdom.

We submit that one can comfortably give meaning

merely to the association of the words "within

the Commonwealth" as referring to the Commonwealth

or the State legislatures contrasting to legislature

outside the State, in particular the Imperial

legislature - in a rather ineffective way, the

Federal Council.

Your Honour Justice McHugh asked my learned

friend, Mr Doyle, before lunch, whether, if there were any
difficulty in supporting, I think it was section 5,

by reference to placitum (xxxviii), it would be

permissible to seek support elsewhere. I think

we understand the drift of Your Honour's question.

We would say there is no difficulty about that.

Firstly, the COASTAL WATERS (STATE POWERS) ACT

does not purport to rely solely upon this head

of power and may be supported, we would submit,

by any available head of power.	And even if
it did nominate a particular head as a source

of power, we would submit it is a general principle

applicable to all matters of constitutional power

that an act purporting to be done under one power

may be supported under another.

One finds that general principle in LOCKWOOD

V THE COMMONWEALTH, (1954) 90 CLR 177, but we

would submit it is quite clear in the case of constitutional validity. Indeed, it might be the obverse of the Communist Party problem that

just as one cannot, we submit, recite oneself

into power in a preamble in an act, we would

submit that an erroneous recital cannot be regarded
as reciting one out of power. It is a question

for the Court to do the best as it can in considering

C1T45/2/SDL	118	15/2/89
Macdonnell

issues of validity. It may on some occasions have

to inform itself as to fact but, we would submit,

as to issues of whether there are powers to

support legislation any relevant power may be

relied upon and, of course, if the parties, for

one reason or another, choose not to rely upon

a relevant head of power, we would submit, it

is permissible for the Court to consider

relevant heads of power which may support

the result.

(Continued on page 120)

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MR GRIFFITH (continuing):	So	for that reason we would

submit that section 5(c) comfortably falls within the

operation of plactium (xxxviii). We make an

alternative submission in paragraph 3 of our contentions

by reference to the placitum (x) and as to that,

firstly, we would submit, a law which enables the

regulation of activity in accordance with a specified

system of law is itself a law with respect to that

activity. So that, we submit that the modern view at

least is that it is irrelevant for the purpose of

characterization that a law may also be described as a

law with respect to something else - that standing alone

might be regarded as falling outside constitutional

power . So that we submit that the approach which one

sees reflected, perhaps, in the judgment of

Justice Evatt in the DIANIN case, referred to by my

learned friend, Mr Williams, 46 CLR, pages 119 to 120,

does not accord with modern doctrine and perhaps we

could contrast the judgment of the present Chief Justice

in the TASMANIAN DAM CASE, 158 CLR, at page 151, where

Your Honour said:

It is now well settled (a) that a law upon a

subject-matter within Commonwealth power does

not cease to be valid because it touches or

affects a topic outside Commonwealth power or

because it can be characterized as a law upon

a topic outside power; and (b) that it is not
necessary to characterize a law upon one

topic to the exclusion of the other.

So we would submit it is a false inquiry to consider

whether or not one may characterize this law as a

law in respect, for example, of the exercise by a

State of a power. We say the relevant inquiry in

considering the operation of placitum (x) is whether

the law can be characterized as within that power.	And
if the answer is yes, we would submit that that is
sufficient to support the exercise of that power.	And
the - - -

BRENNAN J:  What is the mode of characterization or the technique

of it which is adopted in such a case?

MR GRIFFITH:  Your Honour, that itself is a question we would

see of open texture. It is necessary, we would submit,

to postulate the primary question which is here by

reference to the fisheries power in placitum (x) and

then it is a question for really the person engaged

in that inquiry to make a value judgment as to

looking fairly at that law, how may it be characterized -

is it a law with respect to fisheries. And, we

would submit, Your Honour, that plainly it is

because that is the subject-matter of the provision

itself. It says, in respect of this aspect, provision

is made; namely,we would extend to the States the

120

ClT46/l/SR	15/2/89
Macdonnell

power in respect to regulating this activity to be

enjoyed by them concurrently with the power that the

Commonwealth would have to make provision in respect

of fisheries. And it is a different issue, Your Honours,

as to whether or not that could be regarded as,say,

a delegation of law-making authority and we submit

that, no it is not, Your Honour, because it is not

a delegation of law-making authority, it is a matter

of conferring of the power on the States. But,

Your Honour - - -

BRENNAN J:  Does it have any operation other than the conferring

of power?

MR GRIFFITH:  Your Honour, it does have some operation, in that

it is necessary to have an arrangement, Your Honour.

BRENNAN J: Yes, what I mean is, when you have a law which

confers power with respect to a particular

subject-matter such as fisheries, does the law

relevantly have any operation other than the conferral

of the power - does it affect fisheries in any way?

(Continued on page 12~)

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MR GRIFFITH (continuing):  Your Honour, we would submit that

it does, Your Honour, because the whole intendment

of the law, Your Honour, is to make a provision

which was not previously there in respect of the

regulation of fisheries, the legislative regulation

of fisheries. Your Honour, we would submit that

as a step in that process, it is just as much an

exercise of the power as if it were a rolled up

provision which itself had provision as to detail

as a particular scheme of regulation either

generally, Your Honour, as a regime of regulation

or particularly, for example, if there were a

particular provision to regulate rock lobster

fisheries.

Your Honour, we make that submission in the context that we would submit that there should be

no operation of implications against such a broad

operation of power derived, for example, by reference

or regard to the proper functioning of the constituent

elements of the federal system_ and principles

possibly of that sort; that one could see, Your Honour,

in the case of a broad exercise of power issues

of that sort could arise but we submit that they do

not here, Your Honour. The provision in the_

Act,_ section 7B,makes clear, Your Honour, that the

Act does not derogate from any other source of

State legislative power.

It does not discriminate against the States. It

does not interfere with .their constitutional
functions. It accords with the - perhaps it is a

hackneyed expression but it is still a very fruitful

one in this area, we would submit, Your Honour - with

the circumstance that we have here, an exercise of co-operative federalism of the sort referred to in the second reading speeches to which I took the Court

and is designed to implement that, not as a matter of,

if one could put it that way, raw exercise of

Cormnonwealth power, Your Honour, but an aspect of the proper disposition of a system of regulation in

respect of fisheries given the recognition of the

obvious that fish do not know artificial boundaries.

And given, Your Honour, the circumstance that - and

we submit it is an appropriate one in the public

interest - that the regulation is to not be affected

by the Commonwealth alone but by the Commonwealth entering into these arrangements with the States.

So that we submit, Your Honour, that it cannot be said there is an abrogation or invalid delegation

of Cormnonwealth legislative power. There is a

conferral upon State Parliaments of a plenary

power to legislate on a restricted topic and we

submit, Your Honour, that in that way the matter

may be characterized as falling within the fisheries

power.

ClT47/l/BR	122	15/2/89
Macdonnell

Could we refer briefly to a matter that Justice Deane raised and that is a question of is there

any issue about the reach of the Commonwealth fisheries

power under placitum (x) within the three mile area

offshore. As to that, may we refer to a letter

written by Geoff Lindell which appears in our

materials page 31/32, (1978) 52 ALJ 397. Without

~aking the Court to the detail of that letter

which appears on page 31/32 of our materials, the

point there sought to be made by the author of the

letter is that it has not been determined that the

reach of placitum (x) commences no closer than the

three mile limit and we would endorse that analysis

but submit that it is an issue for another day.

But our submission would be that in so far it is

relevant that the power under placitum (x) would include the power to regulate fisheries from the

low ~a ter mark.

We feel that that letter sufficiently summarizes

the basic case as to why that should be regarded as,

to put it at its lowest, an open issue and not one

that has been foreclosed by any authority of this

Court. Of course BONSER V LA MACCHIA and RAPTIS

established the power extends from at least the three mile limit seawards for 200 miles and, we

would submit, that is sufficient to support section 5 (c)

in any event.

We make in paragraph 4 the submission which we

foreshadowed we would make to the Court yesterday

that the provisions of section 5 further may be

supported by the external affairs power. As to that

we would not see that this submission here is one

that we would submit is appropriate to open up the

broad issue as the extent to which it might be

postulated that it is sufficient merely from the

circumstance that an exercise of power is by

reference to matters external to Australia to support

in all cases such exercise by the external affairs

power.	I think my learned friend,Mr Doyle,referred
to that as the broader view and in his alternative

submission he perhaps briefly summarized the points

which can be made as to why it might be put that in
dealing with this issue of fishing in Australian waters immediately adjacent to the land mass of Australia, in areas where obviously the laws defining

a relationship between Australia and persons and

submissions, he put it to the Court that it was not necessary to go to the furthest possible extent of

things outside Australia but immediately outside

this power in dealing with an argument under the external

affairs power.

C1T47/2/BR	123	15/2/89
Macdonnell

MR GRIFFITH (continuing):  Our submission is that the section

is supported by the external affairs power although,

as we have submitted, it is also supported by the

fisheries power and by placitum (xxxviii), the

reference power, but in brief support of this

contention, could I hand the Court some notes

headed'The Development of Offshore Jurisdiction

in International Law'which make the brief point

which the Court probably is sufficiently aware of

the circumstance that it is now the case that in

international law exercise of State legislative

authority within a 200 mile zone at least of States
is accepted State practice even absent the coming
into force of the United Nations Convention on the

Law of the Sea which deals specifically with detail

by way of convention as to those matters and we just

make the point, on page 2 of these notes, that as at

1987, 72 States claim a 200 mile economic zone and
15 States, including Australia, Canada and the United

Kingdom claim a 200 mile fishery zone and we attach

a table which gives detail as to those claims and then

we note the present state of ratifications as far as the United Nations Convention of the Law of the Sea.

One picks up the text of the convention on the

territorial sea and the contiguous zone from the

schedule to the SEA AND SUBMERGED LANDS ACT which,

itself gives some indication as to what might be put
the exercise of power in respect of offshore areas

but this area of fishery is more the broader claim

by reference to the United Nations Convention and

beyond but we hand this to the Court as a matter of

general information to make the proposition that, in

this area, we would submit, there is a law which merely

enables matters external to Australia, fishing in

Australian waters, to be regulated or managed by a

specified system of law operating within Australia

and that, in so doing, we submit that the law defines

a relationship between Australia and persons and things

outside Australia.	As this enables regulation of
fishing in internationally conceded waters, it

facilitates the exercise of internationally conceded

authority and we submit that this is sufficient to

provide and external aspect to be supported under

the power and, perhaps, to shortly make that proposition

good, we would refer briefly to the judgment of

Justice Dawson in the TASMANIAN DAMS case, 158 CLR 1,

and pick up one or two of Your Honour's observations.

Firstly, at pages 298 to 299, Your Honour made

the point that in 1901 the external affairs power was not intended to extend to treaty-making because that,

as Your Honour pointed out, remained with the Imperial

Crown. Now, the Statute of Westminster, if nothing

else, removed any restriction upon that and upon

ClT48/l/SH	124	15/2/89
Macdonnell

legislation having extraterritorial effect but,

Your Honour, at page 300 in Your Honour's judgment,

noted that "affairs":

Is wide enough ..... to embrace the business of

government ..... "affairs of state".

And that the law can be valid:

Although ..... not made in the implementation

of any international obligation.

Your Honour referred to:

The determination of external boundaries -

as one of those aspects.

Perhaps it is, to some extent, a paraphrase of

Your Honour's approach ther~ we would say, to submit

that the regulation of fishing in internationally

conceded waters facilitating the exercise of

internationally conceded authority and thereby

re-enforcing what we say is the international
concession as to the right of an adjacent State to

exercise jurisdiction in these areas, provides

sufficient external aspect to make the subject-matter

within the external affairs power.

Now, having said that, perhaps we have done no more than paraphrase the alternative way in which my

learned friend, the Solicitor-General for South Australia,

put it and we would submit that that is sufficient so

that we do not now see occasion to invite the Court
to go further into some of the broader expressions

of support by reference to merely matters external

to Australia. We have given the accumulated page

references in our contentions as to those postulations

by various of the Judges of this Court but, for the

moment, we will not take the Court to those statements.

Now, we would submit that, if the matter is, then,

regarded within the external affairs power, there is no reason why the Cormnonwealth Parliament should not

be able to exercise its legislative power with respect

to external affairs with the assistance of State the States which have the sovereign status in

international law, we would submit that it does not

mean the expressions of that international status must

come exclusively from the Cormnonwealth Parliament.

Indeed, we say, on the contrary, it is open for the

Cormnonwealth Parliament and quite consistent with the

constitutional structure, to seek the assistance of the

States in dealing with external affairs and, for that

purpose, to pass legislation enabling the States to

give that assistance.

ClT48/2/SH	125	15/2/89
Macdonnell

MR GRIFFITH (continuing):  And, of course, section 5(c) of

the COASTAL WATERS (STATE POWERS) ACT does not hand

over to the States the Connnonwealth Parliament's

legislative power with respect to external affairs.

Rather, we would submit, it is an exercise of

the Corrnnonwealth Parliament's legislative power with

respect to external affairs under which State law is

selected in particular circumstances as a method of

managing external fisheries and the States are

assisted by being empo-:;.;ered to apply their laws in

nominated external fisheries and we submit this is

but an aspect of Australia's external affairs and

such legislative provision in relation to this scheme

agreed to between the Corrnnonwealth and the various

States and the Territories is, in its entirety, to

be regarded as supported by the external affairs

power.

My learned friend, Mr Doyle, submitted that section 106 and section 107 had no relevant application

and we would join with that submission. We submit

that there is nothing in the Commonwealth Act which

of the States entirely intact and merely removes

in any way affects the continued existence of

an overriding or extra-constitutional fetter on

State legislative power. At least before the

AUSTRALIA ACTS, such a result could not have been achieved by the simple alteration of State constitutions

in accordance with their terms. And, of course, it

would not be sufficient for the States to assert power

because to be effective it is necessary also for

there not to be inconsistent and valid Commonwealth

legislation which would exclude the operation of

State powers.

We would submit that as to section 106, the expression, "subject to the CONSTITUTION", means that

section 106, subject to the grants of the enumerated

powers to which the Commonwealth Parliament under

section 51 are declared to be supreme, and this was

the principle stated by the then Chief Justice in the

SEAS AND SUEMER.GEDLANDS case 135 CLR, at page 372.

There Sir Garfield Barwick said:

As States, they owe their existence to the

CONSTITUTION which, by sections 106 and 107,

provides their constitutions and powers

referentially to the constitutions and powers

which the former colonies enjoyed, including

the power of alteration of these constitutions.

Those constitutions and powers were to continue

by virtue of the Constitution of the Commonwealth.

But those constitutions and the powers of the
States were subjected to the Australian

CONSTITUTION. They were not the same as they

ClT49/l/SR	126	15/2/89
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had been before federation. The constitutions

were continued "subject to this CONSTITUTION".

The federal nature of the CONSTITUTION is seen

in the distribution of constitutional power

between the new Corrrrnonwealth and its constituent

States, specific legislative topics being

assigned to the Corrrrnonwealth and the residue

to the States, paramountcy being given to

Corrrrnonwealth laws where inconsistency with

State laws exists. That residue is only

discoverable when the full extent of Corrrrnonwealth

power has been elucidated.

And, of course, additional to that, my learned friend,

Mr Doyle, has made the point that here were are dealing with an issue, not of deregation of State

constitutional power, but the question of supplementing
that power.

The aspects of construction of the Commonwealth FISHERIES ACT, and also the comple.mentary construction

of the provisions of the State legislation, we would

submit, have been sufficiently dealt with in my

learned friend, Mr Doyle's submissions and we merely
refer to page 3 of our contentions which surrrrnarizes

our conclusions as to that. We have already indicated to the Court what we would propose as relevant answers

to the questions. Perhaps the only other issue is

whether, in the circumstances, it is necessary for

the Court to answer it all in respect of the first

arrangement. That is the first part of question 1. Perhaps that is a matter of discretion in the Court and in as much as that is answered we would adopt

the submissions of my learned friend, Mr Doyle, as
to the manner in which the expression of the relevant

area in the first arrangement, none the less we would

submit, is sufficient for validity.

One final matter is, if I could indicate to the

Court what was previously indicated to the Chief Justice

when this matter was before him for directions, and

that is that there is an agreement between the plaintiff and

the defendants that there should be no orders for

costs in this action, in any event. If the Court pleases.

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

Western Australia?

MR PARKER:  If it please the Court, I would pass up an outline

of our submissions.

MASON CJ:  Thank you.

ClT49/2/SR	127	15/2/89
Macdonnell

MR PARKER:  Your Honours may be encouraged when you

see them, but they limit themselves to what,

in our submission, is the short and simple

answer to all the matters that need

resolution in this case and that perhaps is

foreshadowing some of the care with which

my learned friends that follow me will take

to avoid repetition and duplication in the

matters that we would advance.

MASON CJ:	Yes.
MR PARKER:	Thank you, sir. In these submissions

we will speak of the legislative scheme of

a parliament as including executive acts

authorized and contemplated by that scheme,

not just the words of the legislation itself.

Could I commence by adopting the submissions

of my learned friend the Solicitor for South

Australia and the submissions of my learned

friend the Solicitor for the Commonwealth,

except to the extent that his submissions

sought to support the COASTAL WATERS (STATE

POWERS) ACT of the Commonwealth by reference

to provisions other than section Sl(xxxviii)
and except as to his submission about the

innner reach of section Sl(x). In respect of those two matters we would simply again adopt the submissions that have already been put to

Your Honours by my learned friend for South

Australia.

Our approach is to commence consideration of this case by considering the legislative

power of South Australia independently of any power that is sourced in the Commonwealth and

as a background to that consideration we would

simply remind Your Honours that firstly the

COASTAL WATERS (STATE POWERS) ACT of the

Commonwealth in section 7B expressly provides

that:

Nothing in this Act shall be taken to -

..... (b) derogate from any power existing,
apart from this Act, to make laws of a

State having extra-territorial effect.

So the Commonwealth Act was expressly intended
to supplement, or complement, to add to and

not in any way derogate from that which already

exists.

Whilst I am with legislation, simply to

remind Your Honours of the provisions of

section 5(6)(c) of the FISHERIES ACT of South

Australia which expressly asserted that the

CITS0/1/JM	128	15/2/89
Macdonnell

legislation was enacted in respect of:

any waters to which the legislative powers

of the State extend ..... whether pursuant

to section 5 of the COASTAL WATERS

(STATE POWERS) ACT 1908 of the Commonwealth

or otherwise.

So it is against that background that we come to

consider the legislative capacity of South Australia

in its own right.

It is almost trite these days perhaps to

remind Your Honours of the significance of fishing

in the waters adjacent to a body politic,

'Whether that be a colony, a State or a nation

and the significance of that to the people of that

body politic. The adjacent sea is and has ever been

a source of food and in more recent times, a source

of wealth for the people of the body politic.

As people have become more sophisticated and

as populations have grown, the need to regulate

those who fish in the adjacent offshore waters

and how they fish has become a matter of

increasing importance for the immediate and for the

long-term interests of the. people of the body politic.	Inter alia
such regulation is to keep order among

the people who are fishing in the adjacent ocean

in connection with their fishing and controls their

commercial exploitation of the resource of the

sea and, of course, today particularly, seeks to

preserve the resource itself by preventing

over fishing and protecting the breeding process

of the resource. That protection is both for the

benefit of those who actually engage in the

fishing industry and for the whole population of
the body politic because the fishery is one of its

sources of food and one of its sources of economic

prosperity as the benefits of the fishery in a

commercial sense indirectly spread beyond those

directly involved in it. (Continued on page 130)

CITS0/2/JM	129	15/2/89
Macdonnell

MR PARKER (continuing):  To those general considerations

there must be added in this case the particular

matters that Your Honours have already been referred

to as set out in paragraphs 8 to 16 of the special

case. That very brief exposition, in our

properly have been seen by the legislature of	submission, is sufficient to demonstrate why it may to regulate the fishery, the fishing activity here in question, conducted within the waters covered by the arrangement for the peace, welfare and good
government of South Australia.

McHUGH J: Mr Solicitor, the considerations to which you

point to there must authorize the State of Victoria

to pass a law in respect of this same fishery, must

it not?

MR PARKER:  It may do, ye& Although the facts of this

case do not concentrate on it from what we understand

of them·it may well, yes. Your Honours will

appreciate that, in addition to that, those same

considerations equally demonstrate why it could

properly have been seen by the legislature of the

Commonwealth necessary or desirable to regulate

this same fishing activity. The plenary nature

of the power of a State legislature to legislate

for the peace, order and good government of the

State and its extraterritorial operation has been

considered carefully by this Court recently in the

UNION STEAMSHIP case, now reported at 82 ALR 43.

I think, although I may mention some cases,

in the interests of brevity, it will be unnecessary

to directly take Your Honours to any of them.

We have given a reference to passages in that

decision at paragraph 2 of our outline and what we

say of the extent of the powers of the legislature

of a State in this connection is, of course,

equally true of the Parliament of the Commonwealth

under section 51. In paragraphs 3 and 4 of our outline we have set out references we hope that are of interest to the Court, commencing with

CROFT V DUNPHY, but otherwise references to decisions

of this Court in which the extraterritorial
competence of State legislatures have been examined

and confirmed, both within and beyond the

territorial sea, and in paragraph 4 the references
are particularly to fishing and further particularly
fishing in waters beyond the territorial sea.

A consideration of the references in those paragraphs 2 to 4, and particularly 4, leads in

our submission to the clear conclusion that there

was a more than adequate nexus for South Australia

validly to legislate to regulate the fishery, the

subject of this arrangement. In our submission,

ClT51/l/HS	130	15/2/89
Macdonnell

the scheme seized upon by the South Australian

legislature and the other legislatures, and 1

include in that both the Commonwealth and the

Victorian, was commendable for its practicality

and convenience, both to the industry and to those

seeking to administer it.

In our submission, no constitutional objection

can be taken to the fact that the legislatures each recognizing the existence of a measure of

legislative competence in the other, each

recognizing that in respect of this and other

fisheries there was a need to regulate and that a

number of factors could determine which was the

most convenient or appropriate means of regulation,

that between them there was established a

legislative framework to enable one of those means

of regulation one thought appropriate to this case,

to this fishery, to be applied, and the means relevant to the plaintiff and their fishering

activities was the application of the law of

South Australia to the fishery.

It is, of course, an unashamedly and openly

co-operative legislative scheme but in its

particular legal operation the part of it that is

material and actually operate~ it is the law of

South Australia. As a matter of legal form, in

our submission, the South Australian Act, in its

application to this fishery under this arrangement,

is valid as an exercise of the legislative

competence of that Parliament and that the nexus,

the connection with South Australia which justifies

that legislation supports South Australian

legislation applying in waters at least as far east as the southern prolongation of the South

Australian/Victorian boundary which is the limit

to which this South Australian law applies to this

fishery.

adverted to in the submissions of my friends and The problems that could arise that have been

some of the questions of Your Honours as to

competing legislative regimes have been avoided by

legislation each utilizing the common boundary of the southern prolongation of the Victorian/South

the process that is in place and which involves both

Australian border.

ClTSl/2/HS	131	15/2/89
Macdonnell

MR PARKER (continuing):  Those waters, in our submission,

the waters to the west of that prolongation on
the South Australian side, are waters proximate

to South Australia and sufficiently so to provide

ample nexus or connection with the legislative

capacity of the South Australian legislature.

In ordinary understanding, they are waters

off the coast of South Australia and adjacent

to it. It is submitted that it is competent
for the South Australian legislature to see the
southern prolongation of its State land boundary
as a sensible and appropriate limit to the fishery

regime which it sought to establish over this

fishery in which it had such an interest.

It makes sense in terms of State regulation

and a sense that would be apparent to the ordinary

person, it is submitted, as well as to the more

refined thoughts of the legislature. It is far

more practical for the industry which has the

relative simplicity of a single meridian of longitude

as the boundary, rather than any varying and

constantly changing line of demarcation such

as that which is inevitably produced by any sort

of attempt to plot a line of equidistance from

two land masses with all their varying configurations.

I need only add to that what practical

difficulties there would be for a fisherman or

an inspector, tossing in a stormy sea, to try

and plot such a varying line of equidistance

before dropping his pot into the water. In our

submission, it is even more sensible and appropriate

for the South Australian legislature to choose the southern prolongation of its land boundary

with Victoria when it does so in furtherance

of a co-operative scheme in which the Commonwealth

and Victorian Parliaments participate, so producing

certainty and simplicity and avoiding the problems

which could be foreseen if a State purported

to legislate more extensivelf in a lateral sense

without regard to the legislative scheme and

interest of its neighbouring State.

We all recognize that one day it may be

necessary to resolve a competition between offshore

legislation of two States although the obviousness

of the problem may well preclude that time ever arising: evidence the care taken here to avoid

it. Some principles reflecting geographic proximity or predominant territorial nexus - I think to

borrow a view expressed by Your Honour Justice Deane
in BREAVINGT0N V G0DLEMAN, 80 ALR, at pages 409

to 410 - some principles, such as one or other of those, having regard to internal geographic

ClT52/l/SDL	132	15/2/89
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divisions - not necessarily solely to them - may

need to be evolved to deal with such a problem.

But any such principle, when it has to be expounded,

in our submission, should accommodate the sense

and practicality for the Australian Federation

of the seaward extension of land boundaries as

opposed to some form of absolute geographic proximity
such as a line of equidistance.

Any such principle, we would anticipate, would be confined to the resolution of conflict or

competition between State laws otherwise supported

by traditional notions of nexus. Where such

conflict or competition has been avoided, as

here, there would, in our expectation, be no

need for the application of such a principle.

The South Australian law, being, as we have

submitted, valid, the question is whether it

is rendered inoperative by virtue of any inconsistent

Commonwealth law under section 109 of the CONSTITUTION.

The fifth paragraph of our submissions deals

with this. It is our submission that the sections

we have there mentioned of the Commonwealth

FISHERIES ACT, three of them, could hardly make
more clear the evident intention of the Commonwealth

Parliament as to their operation, which relevantly is that there being in force an arrangement under and in accordance with the scheme of the Act,

the Commonwealth fisheries regime in respect

of the fishery the subject of that arrangement

is retracted entirely.

(Continued on page 134)

C1T52/2/SDL	133	15/2/89
Macdonnell

MR PARKER (continuing):  The purpose of that retraction is

expressly stated in section 12H(4)(b) to be to
enable the fishery to be managed in accordance with
the law of the State. In our respectful submission,
the Connnonwealth FISHERIES ACT stands alone for
the purposes of its interpretation in this respect.

It is true that the COASTAL WATERS (STATE POWERS) ACT

in part was intended to support the FISHERIES ACT

but only if and to any extent necessary. Its

existence, the Commonwealth WATERS (STATE POWERS) ACT,

should not, in our submission, detract from the

proper evaluation of the State's own legislative

competence nor should it confuse the interpretation

of the provisions of the FISHERIES ACT itself.

The two Acts are not expressed to be read

together. Difference language is used in material
provisions. In our submission, read according to

their natural meaning and effect, nothing in the

relevant provisions of the Connnonwealth FISHERIES ACT

is conditioned on the operation or effect of the

STATE POWERS ACT and section 7B of that last Act

only serves to underline that. In our respectful

submission, as a matter of clear interpretation

and as a matter of valid operation the Connnonwealth

Act in its operation to this fishery is retracted by

the force of section 12(11). That being so, there

is no basis for the operation of section 109 in this

case. There is simply no legislative inconsistency.

There being an arrangement, only the South

Australian law applies to Australian boats engaged in
the fishery; only Connnonwealth law applies to

foreign boats. For those reasons, it is our submission

that is is really not necessary or desirable for the

Court to go beyond that analysis of the issues to

determine all that needs determining for the purposes

of this case. May it please Your Honours.

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

MR BERKELEY:  I. hand up the outline of our submissions,

Your Honour. If we go to section 4A of the

Connnonwealth FISHERIES ACT, the coastal waters of

a State are defined as:

the parts of the territorial sea ..... adjacent
to that State,

Now,"adjacene'can either mean nearby or can mean contiguous but in this section it must mean contiguous so that the northern boundary of the

coastal waters is the same as the southern boundary
of the State of South Australia. In this Act the
draftsman is dealing with the whole of the territorial

sea of Australia and the coastal waters of each State

and it cannot have been his intention that there

ClT53/l/BR	134	15/2/89
Macdonnell

should be an overlap or a gap between the coastal

waters of Victoria and the coastal waters of

South Australia. The northern boundary or the

southern boundary of South Australia goes from

Western Australia to Victoria and the whole of the

territorial sea south of that is part of the coastal

waters of South Australia and as far as the side

bits are concerned, we cannot say this expression

is meaningless, it has to have some meaning and

when the question arises for decision, this Court

or some poor stipendiary magistrate may have to

work out just where you draw the line and it may

be he will have to use the equidistant rule.

It is not necessary to decide in this case but we do say it is not a vague area which can

fluctuate from time to time. It is something

cap ab le - al though the word "adjacent" is used and

it is not defined by metes and bounds, it is

something which is capable of bei~g defined by metes and bounds, although it is n~.t necessary

for the Court in this case to say exactly how that

should be done. Then if we go to section 12A(2):

References in this Part to the waters adjacent

to a State or States shall be read as
references to the coastal waters of the State

or States and waters within the Australian

fishing zone that are adjacent to the coastal

waters

Now, we would say, with respect, that the word

"adjacent" there has to have the same meaning as in
the definition of "coastal waters", that is, the
northern boundary of that area is the same as the
southern boundary of the coastal waters and that
there was not intended to be an overlap between the
waters adjacent to Victoria and the waters adjacent

to South Australia.

(Continued on page 136)

C1T53/2/BR	135	15/2/89
Macdonnell

MR BERKELEY (continuing):  So that on the proper construction

of this Act, the whnle of the Australian fishing
zone is divided up between waters that are adjacent

to one State or another and there is no overlap or

gap anywhere. And if we are right in saying that,

then the two proclamations, which are set out in the

special case, are both valid arrangements within

the meaning of section 12H(4) becau3e the power

to make an arrangement there is limited to an

arrangement which takes place in respect of the

water adjacent to the particular State. And in the

first arrangement it is said to apply to a certain

fishery in the area of waters to South Australia.	And
if we are correct in what we have submitted, that is

an area capable of being defined by metes and bounds.

And the second prclamation, although on one Leading

it would be invalid, it can easily be read in such

a way as to make it valid, because that is defined

as applying in the area of waters adjacent to the

State, bounded 'uy certain lines. And it has been pointed out in argument that if one looks at those

lines, the area within those lines, one has an area

which may partly be outside the waters adjacent to

South Australia. But the expression can very well be

read as saying, "so much of the area of the waters

adjacent to a State as is within the metes and bounds

stated". And on that construction, this also would

be a valid proclamation, and in our submission, it

should be read in that way.

Now apart from the COASTAL WATERS (STATE POWERS) ACT, in our submission, the South Australian Act is

within power in two ways. Firstly, directly as a law

for the peace, order and good government of the

State with respect to fisheries. In BONSER's case

at page 207, Mr Justice Kitto, in a happy phrase

described the Australian waters - and that is the same case:

as homewaters in respect of the regulation

of fisheries.

And His Honour goes on to say:

The concept, at once political and

geographical, contains the notion that some
areas of the sea are, because of their

location, naturally to be considered objects

of exploitation by means of fisheries as
part of the primary production of Australia.

Now every consideration which makes this area part of the homewaters of Australia, that is the area we are looking at in this case, also makes it part of

the homewaters of South Australia. And every

ClT54/l/SR	136	15/2/89
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consideration which makes the fish caught there
part of th~ primary production of Australia, also

makes it part of the primary production of the

State. And none of what His Honour said depends upon

the status, in our submission, of Australia as an

independent nation in 1980 or whenever it was said

because one remembers that before Federation the

Federal Council of Australia legislated for a fishing zone which extended 140 miles east of

Queensland and 400 miles west Qt Western Australia and

there was certainly no Australian nation at that time.

(Continued on page 138)

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MR BERKELEY (continuing): That was a law for the peace,

order and good government of the colonies which

constituted Australia at that time and so we

would sa~ with respect, that the State Act in this

case is, on ordinary considerations, a law for

the peace, order and good government of Australia.

That point was made by Mr Justice Jacobs in

PEARCE's case, 135 CLR at page 527 where

His Honour puts that proposition as an

independent ground for holding that the territorial

laws operating in territorial fisheries were
laws for the peace, order and good government of

Western Australia. Now, it is true that that

case was limited to fisheries in territorial waters,
but the principle which His Honour states applies
equally to waters outside territorial waters

and the same sort of idea is expressed by

Mr Justice Gibbs at pages 519 and 520.

The second way in which this Act is an Act

for the peace, order and good government of the

State is this: in our submission, any scheme in

which all the States co-operate with the Commonwealth
for the peace, order and good government of the

Commonwealth is also a scheme for the peace, order

and good g)vernment of each State. That is, one

has to taRe into account the situation of the

States as separate parts of the Commonwealth

and the fact that there is a scheme for the
implementation of the sort of legislation which
one sees in this case which is joined in by the
Commonwealth and by all the States as part of the

Commonwealth provides a sufficient nexus with each

State for the implementation of that scheme by

each State to be for the peace, order and

good government of that State.

If I could turn then to the COASTAL WATERS (STATE POWERS) ACT, and, of course, the first

thing is to remember that it was passed with the

concurrence of all the States and, in our

submission, there is no difficulty about the

words "within the Commonwealth" within the
ordinary reading of paragraph (xxxviii). It
authorizes, or it enables, someone within
the Commonwealth to exercise, or someone within

the Commonwealth to be authorized to exercise

United Kingdom powers.

McHUGH J:  Does that mean you draw a distinction between

the exercise of the power and the place of its

operative effect?

(Continued on page 139)

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MR BERKELEY:  Yes, Your Honour, but we are saying that just

on the normal meaning of the words it does not say

anything about operative effect, and indeed
perhaps if the paragraph did not have those words

in it "within the Commonwealth" probably they

would be implied because obviously it does not

authorize, the Commonwealth could not by

legislation authorize somebody in Bermuda to

exercise United Kingdom powers, but they ::ire probably

put in from an abundance of caution, and if

there is any territorial limitation, that is

about operation, it is contained in the introductory

words, that is:

Subject to this CONSTITUTION the

Commonwealth may make laws for

peace, order, and goood government

of the Commonwealth -

and in 1900 that would have been understood as

having reference to the operation of Commonwealth

legislation.	Now, there are a few things to
remember.	On its face it authorizes the addition

of powers, not the taking away of powers and in

any even~ as Your Honour Justice Dawson point out,

section 107 of the CONSTITUTION continues existing
powers and section 51 is expressed to be subject to

the CONSTITUTION, and probably you could not, under this paragraph add to the powers of the

Commonwealth, because section 128 says how the

CONSTITUTION is to be amended and it might well

be inconsistent with that to add to the powers

of the Commonwealth Parliament.

So what it is talking about on its face is either adding to the powers of State parliaments

or establishing some joint authority to exercise

legislative powers. But section 106 itself is

expressed to be "Sub_iec t to this CONSTITUTION" and

all one can say is they cancel each other out.

You have it in section 51, you have it in section 106 and you just have to read them together

and try to give operation to both of them and we

would readily concede and I think we would be

forced to concede that paragraph 38 allows the

Commonwealth, with the concurrence of a State

to alter the State Constitution, that is to

add to the powers of State parliament.

C1T56/l/HS	139	MR BERKELEY, QC	15/2/87
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MR BERKELEY (continuing):  Now, that cannot be done either

under paragraph (x) in respect of fisheries or

paragraph (xxix) in respect of external affairs

because the legislative powers conferred by

section 51 are limited. They are subject to the

CONSTITUTION and it has been held at least once
and said often enough that the CONSTITUTION contemplates

so as to interfere with the organs of the States.

the continued existence of States as elements in the

For instance, in the DEFENCE case last week, EX PARTE

TRACEY, at least I think Your Honours Mr Justice Brennan and Mr Justice Toohey pointed out that the Commonwealth

has no power to interfere with the judicial power of
the States and the Commonwealth has no power to

interfere with the constitution of State Parliaments

either by adding powers or subtracting powers. It

is a necessary implication and all the paragraphs

of section 51 are subject to that limitation except
(xxxviii) which is sui generis. It expressly says

the Commonwealth can but where it does not expressly

say that, the Commonwealth cannot and, of course,

section (xxxviii) is subject to this limitation.

It has to be with the concurrence of the States

and it does not allow powers to take away.

If the external affairs power authorized the

Commonwealth to add to the powers of State Parliaments, it might very well authorize the Commonwealth to take away from the powers of State Parliaments. There is

no distinction of principle. The question is: is

this a law with respect to external affairs? Now,

that is in addition, I think, to the point Your Honour

Mr Justice Brennan made as to whether the Act itself

is a law with respect to fisheries. It is probably,

as Your Honour said, a law with respect to powers
and if, for instance, this power were conferred on
a Commonwealth minister, there was a Commonwealth

Act which says the Commonwealth minister may make

regulations with respect to fisheries, that would be

held not to be a law with respect to fisheries but a law with respect to power.

So that, in our submission, the COASTAL WATERS

(STATE POWERS) ACT is a valid Act. It can be supported

by paragraph (xxxviii). It cannot be supported by any

other paragraph. If the Court pleases.

(Continued on page 141)

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

for Tasmania?

MR BALE:	May it please the Court, by resisting the temptation to restate in my own words that
which has already been said I can perhaps say quite simply that in general terms I
adopt the submissions of my learned friends, the several Solicitors-General who preceded
me. I particularly embrace those submissions
which contend for the independent validity of
the State legislation without reliance upon the exercise by the Corrnnonwealth of any
legislative power in its right. Perhaps I
should also say that I would contend that the Court need not address the external affairs power
in order to determine the validity of the
Commonwealth legislation currently being considered.
May it please the Court.

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

New South Wales?

MR MASON:  I have never been good at resisting temptation,

but I will still endeavour to be short, if the Court pleases. May I hand up a precis of some

submissions.

MASON CJ:  Thank you. Yes?

MR MASON:  Could I just say something about the structure

of our submissions? We certainly put the submission

that the Court should take in preference the

short way home, looking at the matter through

State power eyes, particularly since this is the

issue which really has invoked the litigation

because the complaint of the plaintiffs is the
attempt by the South Australian Parliament to

apply the South Australian FISHERIES ACT to their

activities. (Continued on page 142)

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MR MASON·(continuing):  But it is also relevant to approach

it that way, in our submission, because

section Sl(xxxviii) is really only brought into

operation with respect to the facts of this case

if there is the absence of power in the State

Parliaments to pass the law which it has done.

Another way of putting that last proposition is to say that it is even theoretically possible

that section S(c) of the COASTAL WATERS (STATE

POWERS) ACT could be invalid if there is no work

for it to do if, in fact, State legislative power

with respect to fisheries extends to the full

extent of Australian waters and if section S(c)

of the COASTAL WATERS (STATE POWERS) ACT may

be properly characterized as solely relating

to State power then there would appear to be

no need and, on one view, no basis for applying

section Sl(xxxviii).

Nothing turns upon that in the ultimate analysis particularly since section 7(b) of the

COASTAL WATERS (STATE POWERS) ACT makes plain

its intention that State power, which arises

other than through section Sl(xxxviii) is engaged.

But it may have some bearing, perhaps, upon the

questions that perhaps might have been framed

and the answers which the Court may choose to

give to the questions if it accepts this particular

approach.

In paragraph 2 of our submissions we seek

to make the point that the two sections in the
State Act, section 5(6)(c) and section 14, appear
to independently extend the territorial ambit

of the State FISHERIES ACT in slightly different

terms, each of which is sufficient on the facts

of this case to give validity to the arrangements

and to the extension of the State legislative

power exercised through the FISHERIES ACT to

the areas which this Court is concerned with.

In paragraph 4 of our submissions we commence

the submission about the validity of the State

FISHERIES ACT in reliance solely upon State

legislative power. Paragraphs (a) and (b) repeat

material which has been dealt with already, stressing

the plenitude of the State legislative power

generally and with respect to fisheries in

particular.

In paragraph (d) we seek to refer to the

words "waters adjacent to South Australia" and

we put the submission that since the outer limit
of the first arrangement is waters adjacent to

South Australia and the outer limit of the second is the outer limit of the Australian fishing

zone, there is a sufficient spatial proximity

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to render section 14, in its operation upon the

arrangements, a law for the peace - it should

be "welfare" - and good government of South

Australia.

T59

The references to BONSER's case are added -

that case has already been referred to in argument -

and the passage in PEARCE, at page 527, is that

referred to by my learned friend, the Solicitor

for Victoria, the proposition being that if one

is dealing with Australian waters, then one is

equally dealing with South Australian waters, at least leaving aside the question about the lateral extent of the waters.

MASON CJ:  Mr Solicitor, would it be convenient to adjourn

now?

MR MASON: Certainly, Your Honour.

MASON CJ. We will resume at 10. 15 tomorrow.

AT 4. 17 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 16 FEBRUARY 1989

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