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

[1989] HCATrans 14

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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

Macdonnell

MASON CJ

BRENNAN J

DEANE J
DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 FEBRUARY 1989, AT 2.16 PM

Copyright in the High Court of Australia

ClT14/l/SH 1 14/2/89

MR H.C. WILLIAMS, QC:  May it please the Court, I appear with

MR M.F. BLUE, for the plaintiffs. (instructed by

Thomson Simmons & Co)

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

If the Court pleases, I appear with MR M. WALTERS,

for the State of South Australia. (instructed by

the Crown Solicitor for South Australia)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court pleases, I appear with my learned friends,

MR J. WELLS and MRS. GAEGLER, for the Commonwealth.

(instructed by the Australian Government Solicitor)

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

If it please the Court, I appear with my learned friend, MR J. McKECHNIE, to intervene for the

Attorney-General for the State of Western Australia.

(instructed by the Crown Solicitor for Western Australia)

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

Court pleases, I appear with my learned friend,

DR I. HARDINGHAM, for the Attorney-General for the

State of Victoria. We intervene in the interests

of the defendants. (instructed by the Crown Solicitor

for Victoria)

MR W.C.R. BALE, QC, Solicitor-General for Tasmania: May it

please the Court, I appear with my learned friend,

MR M. STODDART, on behalf of the Attorney-General

for Tasmania, intervening in the interests of the

defendants. (instructed by the Crown Solicitor for

Tasmania)

MR K. MASON± QC, Solicitor-General for New South Wales: May it

p ease the Court, I appear with my learned friend,

MR L. KATZ, for the Attorney-General for New South Wales,

intervening also for the defendants. (instructed by

the Crown Solicitor for New South Wales)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:

May it please the Court, I appear for the

Attorney-General for the Northern Territory of Australia,

intervening in the interests of the defendants.

(instructed by the Crown Solicitor for the

Northern Territory)

MR G.L. DAVIES, ~C: May it please the Court, I appear with my

learne friend, MR J. McGILL, to intervene for the

Attorney-General for the State of Queensland to

support the first defendant. (instructed by the

Crown Solicitor for Queensland)

MASON CJ:	Mr Williams.
MR WILLIAMS:	May it please the Court, in this matter the plaintiffs

are seeking to resolve certain questions as a matter of

constitutional principle. There may be some peripheral

ClT14/2/SH 2 14/2/89

Macdonnell

arguments that are available to my clients but
in so far as there are criticisms that can be made

of the arrangements that we are dealing with that

could be simply fixed up in the ordinary course,

we do not want to pursue matters of that nature.

(Continued on page 4)

ClT14/3/SH
Macdonnell	14/2/89
MR WILLIAM (continuing):	The Court has before it two arrangements;

the first arrangement which was made some time ago

and the second arrangement which was made at about

the time that this case was due to come before this

Court. And the second arrangement, we say, as it were,

fixes up some criticisms that could have been made

of the first arrangement and really, in that sense,

the first arrangement will become a dead issue before

the iliurt except in so far as a matter of background

certain matters which will flow through as a matter

of argument into the second arrangement, I will be

pointing to the terms of the first arrangement.

I have handed up to the Court yesterday some

notes of argument which I asked to stand - at least

the first four pages of them - as representing the

summary of argument which would be handed up in the

ordinary course. Whilst my clients seek to argue

this matter as a matter of a general principle,

nevertheless the general principle must be related

to a factual situation and I would wish to simply
take the Court to the factual situation and explain

it before I move into my argument proper.

To enable me to develop my submissions I have

placed in the hands of the Court copies of a plan

which has been prepared to blow up plan C to

the special case. Plan C to the special case shows

an area in the south-east of South Australia but

we are particularly concerned in this case with the

area around Port Macdonnell.	So I have taken the
Australian chart, number 348.	I have placed certain

marks on it and I hand to the Court - they are

available to the Court - two copies for each of

Your Honours of a photostat.

Now, that photostat is in fact of the same

chart but one is longer than it is wider. In other

words, it was more convenient to show the latitude

on one print and the longitude on the other print

but the Court will see by looking at the compass rose

that, in fact, one can be superimposed upon the

other. It is the same chart we are looking at. (Continued on page 5)

ClTlS/1/BR	4	14/2/89
Macdonnell

MR WILLIAMS (continuing):  Now if the Court would look at the

chart which I might say goes sideways rather than the

one that goes vertically.	I will call the first one I
have referred to "chart l".	The Court will see that we

are looking at Port Macdonnell up in the north-western

corner of Discovery Bay and to the north of Port Mactlo~nell,

of course, is Mount Gambier. That does not show on that

particular plan. On the other plan which goes further

north we will see the Blue Lake which, of course, is on the

outskirts of Mount Gambier. T.•!e are concerned with

Discovery Bay which runs between Cape Northumberland on

the west and Cape Bridgewater on the east. Cape Bridgewater

has inside it Cape Duquesne and in the course of my

remarks I will not be seeking to distinguish, really,

between those two capes which form part of the same

gen0ral headland.

There is marked on this chart the closing line which

I have called PQ of the points between the two

headlands. Point ~S shows a line drawn three nautical

miles offshore from P~. Now if the Court would look

at the second plan my remarks might be easier to follow

from this. The point A shows where the South Aust:-ralian/

Victorian boundary hits the coast. The line AZ shows

the continuation south of that point and in this case the

State of South Australia is claiming a legislative jurisdiction up to the line AZ .

(Continued on page 6 )

ClT16/l/SR	14/2/89
Mac cl.onnell

MR WILLIAMS (continuing): Slightly to the right of

the line AZ, that is to the east of it, is

the longitude 141 east which represents the

nominal boundary of South Australia and Victoria,

but, of course, as we know, it has been established

on the ground slightly to the west of that point.

But the significance of mentioning longitude 141

is that in the past, up until the matters that have

given rise to these proceedings, the Commonwealth

in its administration of the relevant waters has

treated longitude 141 as being the zone boundary

between various classes of fishermen, in other

words, the southern zone, in terms of the Commonwealth's

administration has stopped at longitude 141.

The points, B, C, D, E and F have been

plotted in accordance with a reference which is

contained in the COASTAL WATERS (STATE POWERS) ACT.

The CAOSTAL WATERS	(STATE	POWERS) ACT, in section 3,
refers to:

"adjacent area in respect of the State" means,
in relation to each State, the area the

boundary of which is described under the

heading referring to that State in Schedule 2

to the PETROLEUM (SUBMERGED LANDS) Act 1967.

That schedule contains in Schedule 2, headed,

"Area that includes the adjacent area in respect

of South Australia".

(Continued on page 7)

CIT17/l/JM	14/2/89
Macdonnell

MR WILLIAMS (continuing):  That is included in the book that

has been handed up to the Court, and the area in

question commences at a point that is at the

intersection of the coastline at mean low water by

the boundary between the States of South Australia

and Victoria, thence runs southerly along the

meridian through a certain point - I will not

recite them all - but the points shown in that

schedule have been plotted out so far as the first

five co-ordinates are concerned.

MASON CJ:  Where do we find that description in the

materials that you have handed up to us, Mr Williams?

MR WILLIAMS:  There has been put before the Court - and

the Commonwealth is prepared to this - a book

that has all the legislation that is relevant bound

up together - - -

MASON CJ:  Yes. Whereabouts in that book?

MR WILLIAMS:  It has the heading "Extract Petroleum Act 1967",

Commonwealth, and immediately before that is the

COASTAL WATERS ACT that incorporates that reference.

MASON CJ:	Yes, I follow that.
MR WILLIAMS:	Now, this line, or something close to this line has a relevance to my argument because
the Court will be asked to look at this case in
two ways, one in relation to the power which is
supposed to have been conferred on South Australia under the COASTAL WATERS (STATE POWERS) ACT and
I will be saying that there are certain limitations
geographically imposed upon South Australia by
reference to the line which I have just mentioned, but irrespective of that there may be another path
which the Court will want to follow which has nothing
to do with that line at all.  It may be that
questions of general nexus will arise in relation
to South Australia.  It may be that the Court
will be concerned simply in terms of proximity
as to whether certain waters are closer to South
Australia or to Victoria and in other contexts for
the - I am talking now of international contexts -
for the purposes of solving problems as between
adjoining States. One method which might be adopted
is to move offshore equidistant from the two States
concerned and allow - and recognize a jurisdiction
by each State up to that point.

ClT18/l/HS	7	14/2/89
Macdonnell

MR WILLIAMS (continuing): Now, I started to draw this out for

myself one weekend and as I did it, I suddenly

realized that the job had been very substantially

done for me by the draftsman of the schedule that

I have just referred to. And whilst there may be some slight inaccuracies in the way in which that

has been put together it is close enough for the

purposes of my argument.

Now, the Court will see proceeding south at

point A to B - at that point the line AB is generally

equidistant from South Australia and Victoria. One

would need a compass to check that with and the same

applies with point C. It will touch the coast at A

which is the nearest point of land so far as South

Australia is concerned and also touch the land

somewhere over in the long swamp area in Victoria.

Point D, as we move offshore, has been constructed

so as to be equidistant between point A and Cape

Duquesne and the Court may see faintly outlined on

the chart a compass line which I have swung with the

point of the compass on D and passing through Cape

Duquesne. Now that line, that compass circle if

it is extended, will touch Cape Duquesne and exactly

touch point A. So it would appear that the draftsman

of this particular schedule - it seems more than
coincidence that he had that in mind.

When we move out to point E, that has been done

- been_ constructed by swinging the compass point on

E and then taking a line which is then equidistant

between Cape Duquesne and Cape Northumberland. Now,

I need not move further offshore than that. It would

appear that point F has been constructed in a slightly

different way because DE is at right-angles to the

closing line PQ, whereas EF - Fis slightly more to

the south-east. The line as it moves offshore is

going further to the south-east, and that appears

to be at right-angles to the general coastline

beyond Cape Northumberland, taking a line between

Bridgewater and the coast more to the west of

Northumberland.

(Continued on page 9)

ClT19/l/BR	14/2/89
Macdonnell
MR WILLIAMS (continuing):	So that WP say that a line drai:~rn

along that line would represent the sort of boundary that

one would recognize if it was to be said that certain
waters are nearer to South Australia and therefore have

a nexus or rather have a greater nexus to South Australia

because of proximity than they would have to Victoria.

But we see, looking at the Plan 2 whi~h is the vertical

line, that the area for which South Australia is

claiming jurisdiction moves further east than the line

A, B, C, D, E, F, and encompasses a body of water to

the east of that line up the line AZ . Now my submission

will be that that body of water, which I will simply call -

and it is not a triang1-1lar body bvt I will call it that

for the present purposes, is clearly beyond the jurisdiction

of South Australia.

Before I move into my argument there are certain

other points which perhaps ought to be identified. There

were two arrangements made which are before this Court.

The first arrangement is cxp~essed to be made in respect

of the waters which are adjacent to South Australia. There

is no geographical area denoted in the arrangement and

in the memorandum which I handed up I suTim1arized the

sections of the Commonwealth FISHERIES ACT and the
conclusion which I ask the Court to reach is that iris

necessary for an ar~angement to be made for waters to be

specified and in the absence of that specification my

submission is that there is no irrelevant arrangement. Now

that will have a background relevance to what I am coming

on to say later. The second arrangement has its south

boundary in latitude 40 degrees south, because that is what

it says - I will come to the arrangement in a moment and

it has its east boundary in the southern prolongation of

point A that I mentioned. Perhaps I can take the Court

to the relevant arrangements.

(Continued on pagelO)

ClT20/l/SR	14/2/89
Macdonnell

MR WILLIAMS (continuing): Arrangement A to the special case

was the first arrangement which was expressed in paragraph 1 to be an arrangement in respect of -

and I am reading it now:

The fishery to which the Arrangement applies

is the fishery in the area of waters adjacent

to South Australia for crustaceans.

2. The fishery is to be managed in accordance with the law of South Australia.

The second arrangement which is arrangement B to the

special case starts off with paragraph 1 and I invite

the Court to read paragraph 1 as if it were separated

from the rest of the arrangement or, alternatively, was put
as the last clause rather than the first clause because·

it says:

The arrangement entered into between the

Commonwealth and the State in relation to

rock lobster fishery -

and that was the one I have just mentioned -

is terminated.

Then it goes on:

2.      The fishery to which this arrangement

applies -

and this is referring to a new arrangement, not to
the arrangement referred to in paragraph 1 -

The fishery to which this arrangement applies is the fishery for crustaceans -

that is, rock lobsters -

taken with the use of rock lobster pots -

et cetera -

in the area of waters adjacent to the States

bounded by a line.

(Continued on page 11)

ClT21/l/SH 10 14/2/89

Macdonnell

So, here, the arrangement has been fixed up.

(a) Cormnencing at the intersection of the

southern shore of Australia with the meridian

of Longitude which passes through the southernmost

point of the boundary between the States of

Victoria and South Australia;

(b) Running thence south along that meridian

to its intersection with the parallel of

Latitude 40° South;

(c) Thence west along that parallel to its

intersection with the Outer limit of the

Australian fishing zone;

(d) Thence north-westerly and south-westerly

along this outer limit to its intersection with

the meridian of Longitude which passes through the southernmost point of the boundary between

the States of South Australia and Western Australia;

(e) Thence north along that meridian to its

intersection with the Southern shore of

Australia;

(f) Thence easterly and south-easterly along

that shore to the point of cormnencement.

So, basically, we have an arrangement which starts

at point A on my plan and proceeds south to 40 degrees south.

Now, in passing, I simply make the observation

that in my submission there is no justification for

simply proceeding south. The line of the South Australian

and Victorian boundary does not - if we put a ruler on

it - proceed dead north and south. It is a couple of

degrees off that. The Court would need to check that

with a ruler and, perhaps, it may need to have available

to it the original chart from which these observations

were taken and, perhaps, if the Court pleases, I could	leave with the Court officials a copy of Australian
chart 348, if the Court wishes to get any further detail
from it.

MASON CJ: Are you providing us with one copy of that or seven

copies?

MR WILLIAMS: Well, the chart happens to be out of print at the

moment, Your Honour. I have got two copies available

to me and we have ordered more. That is all I can say

at the moment.

MASON CJ: Well, if you leave one with us, and then if, at a

later stage, you could provide us with seven, so much

the better.

ClT21/ 2/SH	11	14/2/89
Macdonnell
MR WILLIAMS:	Thank you, Your Honour.	For present purposes,

the eastern boundary of the second arrangement - the

Court will see this by observation from the chart - is, according to my calculations, in 140 degrees

57.8 minutes e~st. That is, just short of the

longitude 141 which was the nominal boundary.

In accordance with the second arrangement,

South Australia has implemented certain regulations

to·control the management of the rock lobster fishery

and it has established a zone. I mentioned, in the

material which I handed up to the Court, I supplied

the actual co-ordinates from the regulations to

demonstrate the boundaries of that zone but the

significant point, for present purposes, is that

that zone has been laid out with no eastern or

southern dimension to it.

(Continued on page J3)

ClT21/3/SH	12	14/2/89
Macdonnell

MR WILLIAMS (continuing):  The regulations were passed

before this arrangement was made and this in

itself will be one of the more unsatisfactory

matters which I will be mentioning as I

develop my argument because we have a situation

of a set of regulations which were properly passed,

submitted to Parliament so that each House would

have the opportunity to disallow them. The

regulations have taken effect on the footing of

South Australia having, presumably at that stage,

a certain offshore boundary and it may be that

the extent of South Australia's right to control

that fishery did not go more than about three

miles or so offshore. But now we have a

situation where if the new arrangement takes

effect, and if the arrangement has the result of

giving a new force to those regulations, it may

now be that they will be construed in quite a
different way from the way in which they would

have been originally construed when they were

laid on the House of each table of Parliament for

disallowance. There is now no mechanism for

challenging those regulations in the ordinary

democratic way.

My clients, and I do not want to develop

the reasons that they challenge this arrangement,

acknowledge that there must be regulation of the

fisheries for efficient management. But they

challenge in fact the way in which this has been

done and they certainly complain that the way in

which it has been done takes away from them what

one might say was their normal democratic right

to go to their member of Parliament, make

submissions as to their complaints as to the scheme

and have the opportunity to have the regulations

debated and disallowed if necessary.	I just make
that point in passing.

Other relevant boundaries will be the

Australian fishing zone, which is fixed as

200 miles offshore and that has been shown on a

plan which the Commonwealth have been good enough

to prepare for us. That is this plan; I understand

it was made available to the Court recently by

the Commonwealth.

(Continued on page ll~)

ClT22/l/JM	13
Macdonnell

MR WILLIAMS (continuing): It did need some amendment and I

understand that the relevant amendment has been

stuck on it by the Connnonwealth. But the Court

will there see the Australian fishing zone some

200 miles offshore. The Court will also see that

running right down to - it goes down to latitude
45 degrees 6 minutes 15 seconds south and

141 degrees east is what I might call the south-eastern

boundary of proclaimed waters in the relevant area

under Connnonwealth law so far as South Australian

zone Sis concerned. So that in this respect the

Connnonwealth regulations have established a zone

which goes beyond the Australian fishing zone.

Nothing turns on that matter for the purposes of

this case but I simply observe that that does happen.

We also have proclaimed waters under the

Connnonwealth FISHERIES ACT and that proclamation

is annexed to the special case and the general

proclamation of proclaimed waters is 200 miles

offshore. The last point which I wish to mention

is the line shown on the Connnonwealth's large

chart. It shows an adjacent area boundary. Now,

this is the line which I was discussing earlier in
terms of the first plan which I handed in. I have

drawn on my plan an enlargement of that line close
inshore but the Court will see on this plan how the

adjacent area boundary moves away offshore from

South Australia generally at a line which is

perpendicular to the closing line of the coast.

However, the point should be made that the

adjacent area boundary as shown on this plan does
not end at the Australian fishing zone. It

proceeds on considerably further and I note that

there is a turning point for that adjacent area at

44 degrees south on a co-ordinate with 136 degrees

29 east. That will be found in that schedule to

the adjacent area which I took the Court to before.

The chart also shows a boundary between two zones,

zone Sand zone N, for the purposes of the Connnonwealth

legislation - this is under the crayfish regulations -

and a line which we see marks the southern zone of

the South Australian regulations.

So as I see it, southern zone and zone S has

the same western boundary under the Connnonwealth

and State administration. Under the State

administration the zone has no eastern or southern

limit.	Now, it is against that background that I
wish to make my submissions to the Court.	The key

to the argument, at least as to how the Court deals
with the matter is probably contained in section 121
of the Connnonwealth FISHERIES ACT and as to the

Court's view of the manner in which that operates.

121 says:

ClT23/l/BR	14	14/2/89
Macdonnell
MR WILLIAMS (continuing):

Where there is in force -

and I emphasize those words "in force" because they may be

the critical words -

an arrangement under this Division that provides

that a particular fishery is to be managed in

accordance with the law of a State, the provisions

of this Act other than this Division do not apply

to or in relation to that fishery except in relation

to foreign boats in proclaimed waters.

And then section 12H should be read in conjunction with

that. Section 12H(4):

The Commonwealth may make an arrangement with a State with respect to a particular fishery

in waters adjacent to the State, not being a

fishery to which an arrangement 11ndPr snb-sect-ioD ( 1)

applies -

this is a joint arrangement:

(b) that the fishery (being a fishery wholly or

partly in waters on the seaward side of the

coastal waters of the State) is to be managed in

accordance with the law of the State.

So that in my submission it is quite clear that the

effect of section 121 is that once the arran2ement in

question is in force the COMMONWEALTH FISHERIES ACT

otherwise ceases to have application. So it may be that

section 12L simply operates as a trigger for the

Commonwealth in the relevant respect to withdraw from

the field. Now so far as the first arrangement is

concerned, because the arrangement was not wit-h rPspect to

a particular fishery, the trigger was never operated

because the circumstances for that did not apply.	But
there are two ways of applying section 12L.	The Court
could simply say that section 12L is simply a mechanical

means for the Commonwealth to vacate the field and to

leave the field at large for the State to operate in and

that in those circumstances the State law will stand or

fall on its own merits and questions of general nexus will

then have to be looked at to see whether or not the

particular law can stand up in the offshore area.

Now that is one way of looking at the case and I

will certAinly be developing an argument then directed to

a question of nexus on the assumption that that may be one

way of looking at the matter. On the other hand,my

primary submission will be that section 12L forms part of

a legislative scheme and that the arrangement cannot be

said to be in force unless the arrangement gets its

force by virtue of Commonwealth. law. In other words,

ClT24/l/SR	15	14/2/89
Macdonnell

the arrangement, in my submission, is intended to

do more than merely be a vacation of the field, it

is intended to be a means whereby legislative

jurisdiction is carried through to the States by

means of the COASTAL WATERS(STATE POWERS) ACT.

BRENNAN J: Will anything turn on whether the words "a

particular -Fishery" requires a metes and bounds

description?

MR WILLIAMS:	Your Honour having raised it, I will simply - - -
BRENNAN J:	No, l just want to inquire whether anything does

turn on it?

(Continued on page 17)

C1T24/2/SR	16	14/2/89
Macdonnell

MR WILLIAMS:  It only turns on it in terms of the invalidity of

the first arrangement. I mean, that is something

that obviously can be fixed up and therefore I am not

really very interested, with respect, in arguing it.

But, yes, that is the only significance of the

particular fishery but, on the other hand, I suppose

sornE:thing does turn on it in this sense, that a particular

fishery provides an ambit to the extent to which the

State is given power by virtue of the COASTAL WATERS

(STATE POWERS) ACT.

Well then that, perhaps, then identifies

a watershed in the case and it will be a question as

to which way the Court prefers to go in dealing with

that question as to how it may perhaps go about answering

the questions which are submitted. But in asserting

that it would appear that the State is making two

claims for iurisdiction, I note that in the

South Australian FISHERIES ACT which is simply an Act

of general application, we find in section 5(6): Subject to any limitations expressely prescribed

in this Act, this Act shall apply -

be managed in accordance with the law of the State
pursuant to an arrangement under Division III of (c) for purposes relating to a fishery that is to legislative powers of the State extend, with respect to that fishery, whether pursuant to section 5 of the COASTAL WATERS (STATE POWERS) ACT of the Commonwealth or otherwise.

"Or otherwise" are the important words and they put me

on notice,therefore, that my learned friend, the

Solicitor-General for South Australia might be

anticipated to advance an argument based on the

COASTAL WATERS (STATE POWERS) ACT, otherwise by

relation to a general nexus and it may be that there

would be other sections of the CONSTITUTION which would

be relied upon.

It is not really possible for me to stand here

and anticipate every argument that might be put forward.

I am going to make one general submission as to,

in general terms, why there could be no other clause in the CONSTITUTION that would assist my friend in -

no, I am sorry. No, my friend, the Solicitor-General

will, presumably, advance his argument under

section 5 of the COASTAL WATERS (STATE POWERS) ACT

or in terms of a general nexus. It may be said that

the FISHERIES power of the Commonwealth has some

limited application. For example, the FISHERIES

power might be relied upon to authorize the

Commonwealth to make the arrangement in 121, because

I would have to concede that the Commonwealth, if

it wants to, can pull out of the field. But I would

ClT25/l/VH	17	14/2/89
Macdonnell

be certainly asserting that the FISHERIES power

could not be relied upon as a basis for carrying

through the arrangement so as to confer a

jurisdiction on the State, that is, a legislative

jurisdiction on the State.

If there is any legislative jurisdiction to

be conferred on the State it will come, in mv

submission, section 51 (xxxvii) of the

CONSTITUTION which is clearly the power which has been relied upon by the Commonwealth, at the

request of the States, in enacting the

COASTAL WATERS (STATE POWERS) ACT. So that my

argument has really, therefore, got to face up to

this watershed and deal with the matter in the

two ways, depending upon how the Court construes

section 12L of the COMMONWEALTH FISHERIES ACT.

(Continued on page 19)

ClT25/2/VH	18	14/2/89
Macdonnell

MR WILLIAMS (continuing):  However, in the course of

following through an argument based on the COASTAL

WATERS (STATES POWERS) ACT there will be a

question of construction which arises under

that Act because, on the face of it, the

COASTAL WATERS (STATE POWERS) ACT does, on

its face, purport to authorize the Commonwealth

to make this arrangement with South Australia.

But I say that the arrangement which has been

made goes beyond what was envisaged by that Act.

The COASTAL WATERS (STATE POWERS) ACT refers to

an adjacent area in respect of the State, in

its definition in section 3, and I have taken

the Court to that.

It then has a definition of "coastal

waters of the State" which means:

in relation to each State -

(a) the part or parts of the territorial
sea of Australia that is or are within the

adjacent area in respect of the State -

they are the important words -

other than any part referred to in

sub-section 4(2).

I am not concerned with the definition (b) of
"sea that is on the landward side of the territorial

sea".

Then, when we come to section 5 of the

COASTAL WATERS (STATES POWERS) ACT we see that

section 5 says:

The legislative powers exercisable from

time to time under the constitution of each

State extend to the making of -

..... (b) 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 including laws applying in or in

relation to the sea-bed -

et cetera - I am sorry.	I was reading (b).	I
should have read (c):

extend to the making of -

..... (c) laws of the State with respect to

fisheries in Australian waters beyond the outer limits of the coastal waters of the

State, being laws applying to or in relation

to those fisheries only to the extent to

CIT26/l/JM	19	14/2/89
Macdonnell

which those fisheries are, under an

arrangement to which the Commonwealth and

the State are parties, to be managed in

accordance with the laws of the State.

So, S(b), which I started reading a moment ago,

gives a power to the State to have a certain

jurisdiction "in or in relation to waters

within the adjacent area". That area, the

Court will recall, goes beyond the Australian

fishing zone. But (c) gives power to the

State to makes laws of the State with respect to fisheries in Australian waters beyond the

outer limits of the coastal waters of the

State.

Now, my submission is this, that the coastal

waters of the State are established by reference

to the definition which we have just mentioned

and that definition of "coastal waters" refers to:

the part or parts of the Territorial sea
of Australia that is or are within the

adjacent area in respect of the State -

and the "adjacent area in respect of the State" is

itself then defined by reference to the schedule

to the PETROLEUM(SUBMERGED LANDS)ACT.

(Continued on page 21)

CIT26/2/JM	20	14/2/89
Macdonnell

MR WILLIAMS (continuing):  So at the end of the day we have

a territorial sea established - and I do not need

for the purposes of this case to argue whether the

territorial sea at the relevant point is just

simply three miles off the land in Discovery Bay

or whether it is three miles off the closing point

of the headland. Certainly, as the case was argued

for South Australia in RAPTIS it would have been

argued that it was three miles off the closing

point of those headlands and we can see that when

the line was established under the COASTAL WATERS

(STATE. POWERS) ACT or rather under the PETROLEUM

(SUBMERGED LANDS) ACT that certainly the draftsman

has constructed the line by reference to the

closing line of the bay and a point established

three miles beyond that. That can be seen quite

precisely by reference to the plan which I put

before the Court.

Point Con that plan is precisely on the line RS

so as to be three miles beyond the closing line but,

no doubt, that particular schedule to the PETROLEUM

(SUBMERGED LANDS) ACT was negotiated between the

State and Cormnonwealth many years ago when perhaps

the perception of the State's powers were different.

But I simply mention that to demonstrate the reasoning

that must have followed in establishment of the line

ABCDEF.	But I say it makes no difference to my
argument where the coastal waters are.	What I say is

that the State is entitled to legislate in respect

of the coastal waters up to the edge of those coastal

waters - that is in an easterly direction towards

Victoria - that cuts off at that particular line. I

suppose if the coastal waters are inshore, it will be

somewhere along the line AB. That is, close inshore,

three miles off the coast with the eastern boundary of

it marked by the line AB.

That, in my submission, is the limit of the

coastal waters which are relevant to South Australia.

When we move on the other side of that line AB to the

east of it, those are the coastal waters that are

relevant to the State of Victoria. Now, as we move

offshore, my submission is that when the section S{c)

of the COASTAL WATERS (STATE POWERS) ACT gives

power to make laws"with respect to fisheries in

Australian waters beyond the outer limits of the coastal

waters of the State", it is necessarily meaning

''beyond" meaning on the farther side of those waters

and proceeding directly to seaward. But as soon as

one moves closer to Victoria than to South Australia

those waters are then, for the purposes of this

legislation, to be treated as waters beyond the outer limits of the coastal waters of the State of Victoria, not of the State of South Australia.

And I say that that argument, in my submission, is

correct because if it were not, the draftsman of

ClT27/l/BR	21	14/2/89
Macdonnell

section S(c) of the COASTAL WATERS (STATES POWERS) ACT

would have simply referred to:

laws of the State with respect to fisheries

in Australian waters beyond the outer limits

of the coastal waters -

there would have been no need to have put in the

words "of the State" because't:oastal waters'have been

defined'the parts of the territorial sea that is or

are within the adjacent area in respect of the State".

I suppose I have actually shortened my argument

slightly there because section S(c) refers to the

coastal waters of the State which itself, of course,

is a definition so that when I say "of the State"

we go back to the definition and the definition

itself makes the same point as I was making in a

shorthand way because the coastal waters of the State

are the area which is in the adjacent area in respect

of the State.

(Continued on page 23)

ClT27/2/BR	22	14/2/89
Macdonnell

MR WILLIAMS (continuing):  Now there would have been no need

to have had introduced a concept in respect of the

State if it had been intended that South Australia should

have a jurisdiction at large. Now whilst

South Austr~li~ haR moved up to the thP line A7. on my

plan that I put to the Court earlier, if it can go to

the line AZ what is there to stop South Australia

legislating across to an area, let us say off Portland.

I mean it is carrying the same argument to an extreme.

What is there, likewise, to stop Victoria legislating

with an area that proceeds over past Port MacdonnPll.

These are the sort of problems which my clients foresee

and as an association they are concerned to get them

resolved at this stage before the problem becomes more

acute. We say that within the framework of a

Federation, there must be some way, some device, for
limiting the jurisdiction of thP St8te~ in such a

way that Victoria iR not entitled to say, "Every cray

boat shall have painted on it a registration number in
black letters and no other and South Australia says it

shaihl be in red letters". Now that is the sort of

problem reduced to simplicity that we are faced with -

it gets much more complicated than that in terms of

the actual administration. And might I say and I am

turning to something that Your Honour Mr Justice McHugh

said this morning, in terms of looking for the
preferred constitutional answer, I would suggest that

the Court would have some regard to the reasons why

we established a Federation Rnd a sy!',tem which now

envisages taking the offshore waters, and instead of

treating them as a whole, dividing up the administration

between the States, in my submission, ought to be

regarded as a backward step. The constitutional

intention was that each of the States should have control

over the inshore waters.

The wate.rs which Mr Justice Windeyer in

BONSER V LA MACCHIA had in mind in a very limited way

when he said that clearly a State has power to control

what is worn so far as bathing costumes are concerned

in the surf at the seashore, because of the close

connection with the State. Now I accept that. I

accept that there is a nexuR for that. I accept that

within the first three miles to seaward a long history

of cases has established that merely by the existence
of the particular subject-matter within the three

miles of the coast that that does establish a sufficient

connection and, of course, I am really responding to something that Your Honour the Chief Justice said in

PEARCE V FLORENCA in that regard. I think Your Honour

may have reserved the question at that stage as to

whether mere presence within the threemi.les would be

sufficient to raise a nexus. Now from the point of

view of my argument, my clients are not interesterl in

arguing the first three miles inshore. They accept it

can be assumed that there is a nexus by reason of

ClT28/l/SR	23	14/2/89
Macdonnell

proximity in that respect - whether it is by reason

of proximity or whether it is because it is the

area over which a c~nnon could be shot or control

could have been exercised in the old days does not

matter. It is as we proceed seaward, it is my

submission, that the nexus has got to be justified

in factual terms in each case.

GAUDRON J: Mr Williams, could I ask chis? When you say within

the first three miles offshore, do you mean that to

mean something different from within the three mile

limit?

MR WILLIAMS:  No, Your Honour, I am speaking very generally

when I said that.

GA.UDP.ON J: Yes, rhank you.

MR WILLIAMS:  Put it this way: I recognize that there is an area

of water close inshore over which the State has control

and I am really not interested in that area at all.

(Continued on page 25)

ClT28/2/SR	24	14/2/89
Macdonnell

MR WILLIAMS (continuing): It probably corresponds with the

area that is described as "coastal waters" in the

COASTAL WATERS (STATE POWERS) ACT, but as applied

to the facts of this case it simply does not matter

to be precise with my acknowledgement. Wr1at I am

concerned with, of course, is if I have to define a

point that I am interested in, a point, let us say,

immediately south of the South Australian/Victorian

border, about 30 miles out to sea. I simply take

that because that, in practical terms, is where my

client, Mr Ollrich actually fishes, right up close

to that line. And this is the problem, of course,
that that is where the crayfish are, out in this

area and we see that, to have a division of

responsibility as between the States at that point

as being absolutely disastrous in terms of practical

administration.

Before proceeding to discuss the effect of the

COASTAL WATERS (STATE POWERS) ACT and to put everything

in a factual sense before the Court, perhaps I could

take the Court to the special case. I will just deal

with the answers which I am going to ask the Court
to give and then I want to look at certain facts

which the State has relied upon and which we have

agreed, which no doubt my friend the Solicitor-General

will say gives rise to a nexus. The questions are

set on page 45 of the special case:

The following questions of law arise:-

(1) Was the Arrangement -

that is the first arrangement -

and is the Second Arrangement validly authorised

by section 12H(4) of the FISHERIES ACT (Comronwealth)

and section 13(1) of the FISHERIES ACT (South Australia)?

So far as the first arrangement is concerned, I would

say the answer is clearly no but for a non-constitutional

reason, simply, that the requirements of the trigger
were not met.	So far as the second arrangement is
concerned - - -

DEANE J:  Do you want us to answer that - so far as the first

arrangement is concerned?

MR WILLIAMS:  I will be asking the Court - I certainly will not

be spending any time on it. It does have certain

consequences for what has happened in the past and

because the expression - and I will be coming to the

factual matter in a moment - the question of the area

adjacent to South Australia does have quite a practical

importance in terms of the nexus that I was about to

deal with - I would simply say yes.

ClT29/l/VH	25	14/2/89
Macdonnell

DEANE J:  I thought you had said that you were not going to

argue about the first arrangement and that we did

not have to worry about it.

MR WILLIAMS: Well, if the Court sees fit not to pursue it, it

does not really matter. I suppose that is - - -

:MASON CJ:	But it is a question of what do you want us to do?
You seem to have made contradictory statements about
it.
MR WILLIAMS:	Yes, we would ask the Court to answer the question

because it does have a practical consequence in

terms of fees which have beeen paid. That is all I

can say. But I am not proposing to say any more

about the first arrangement than I have already said

because it is only to highlight the problem.

BRENNAN J:  The problem turns on whether or not a particular

fishery requires the metes and bounds description.

MR WILLIAMS:	Yes.
BRENNAN J:	And that problem being posed, there is no argument

to be delivered?

MR WILLIAMS:  Well, I am sorry. The question has been posed;

I have put the argument, with respect, in the material

which I have handed up to the Court under the heading of "Adjacent Area, 11 if the Court pleases.

(Continued on page 27)

ClT29/2/VH	26	14/2/89
MacDonnell

MR WILLIAMS (continuing): If the Court wishes me to, I will

go through it later. Your Honour did raise the

question as to whether the specification of an area

in geographical terms did have a significance and

I am reminded, again, of what Your Honour said

then and my submission is: yes, it does have a

significance because it gives the ambit to the

arrangements that can be made and, therefore, in

my submission, it is convenient to answer that

question in relation to the overall matters that

are now being posed but I certainly was not intending

to leave the Court without an argument. The argument

is there in writing and, if necessary, I will develop

it very shortly.

The second arrangement, we say, is not validly

authorized by section 12H(4) but the answer to that

question will depend on which way the Court goes

in terms of this watershed argument. I am prepared

to acknowledge that the terms of 12H(4) have been

in a literal and mechanical way met. That is to say,

a document has been produced under the hand of the

Governor of South Australia and the Governor-General.

Now, if the effect of that document is simply

to cause the Commonwealth to vacate the field, then

in that sense - and if that is all the arrangement is

supposed to do, then I suppose a document literally

complying with the section exists but might I say

this:  I would not quarrel with an arrangement that

had been set up in this way. Let us assume that the

Commonwealth, in its Act, simply provided that the minister upon being satisfied that offshore waters will otherwise be satisfactorily administered may

give his certificate suspending the operation of the

FISHERIES ACT in respect of that area. He gives his

certificate and the Commonwealth, then, in terms of
the Act, a section providing this, then vacates the
field; vacates the field on the certificate of the

minister.

If that were the way in which it was done and if

that is all the section was intended to achieve, I

could not quarrel with that particular approach and

if that were done, the State could then enter the

field and it could pass laws which had a nexus with

South Australia. The typical way of doing it would

be to pass laws that if any fisherman brings fish

within any port in South Australia which have been

caught without a licence issued under this Act,

then he shall be guilty of an offence. In other words,

the laws would have to be drawn in a way which, in
themselves, imported a nexus with the State and that,

in my submission, is the conventional way of doing it

but what has happened in this case is that the laws

have not been drawn in a way to establish a nexus.

ClT30/l/SH	27	14/2/89
Macdonnell

It is being sought just to apply the general

laws of the State into an offshore area so as

to require licences for taking fish.

The South Australian FISHERIES ACT - - -

BRENNAN J:  Mr Williams, could I interrupt you to ask what

is a fishery? What is a fishery?

MR WILLIAMS:  It is defined under both the Corrrrnonwealth and

the State Act.	So we will have to go to each Act
and look at it, Your Honour.	In the State Act in

section 6 - this is Corrrrnonwealth-State Arrangements -

"fishery" means:

A class of fishing activities identified in

an arrangement under this Part as a fishery

to which the arrangement applies.

It is a class of fishing activity and, in the

Corrrrnonwealth Act - - -

(Continued on page 29)

ClT30/2/SH	28	14/2/89
Macdonnell

MR WILLIAMS (continuing):  Yes. I wonder if I could draw

the Court's attention to the material which I

handed up. On page 12 I gave certain references to

the Commonwealth Act and on page 14 certain

references to the State Act. "Fishery' is mentioned in

each case there. It is section 12A of the Commonwealth

Act, our Honour.

DAWSON J:  Which Commonwealth Act, Mr Williams?

MR WILLIAMS:  Sorry, the FISHERIES ACT. I am referring to

the material which I handed up. I have had

certain statutory material to which I would draw

the Court's attention. On page 12 I have invited

attention to certain sections of the Commonwealth

FISHERIES ACT and there to section 12A a definition

of "fishery".	Section 12A in the Commonwealth
FISHERIES ACT:

means a class of activities by way of

fishing, being a class of such activities

that is identified in an arrangement under
this Part as a fishery to which the

arrangement applies.

My learned junior draws attention to section 12A(3):

Without limiting the matters by reference

to which a fishery may be identified in

an arrangement under this Part, those

matters include all or any of the following:
(a) a species of fish;
(b) a description of fish .....
(c) an area of waters or of seabed;
(d) a method of fishing;

(e) a kind or class of vessels;

(f) a class of persons;

(g) a purpose of activities.

My learned friend,Mr Doyle, also draws attention to

the fact there is a similar section, section 5(2)

of the State FISHERIES ACT that:

A class of fishing activities may be

arrangement or other instrument under this defined in any regulation, proclamation, following factors -

and again, I think it is the same provisions

except that - the State Act has an additional

ClTJl/1/HS	29	14/2/89
Macdonnell

factor "any other factor" added at the end of

the list.

BRENNAN J:  The one thing it does not seem to be capable

of definition by reference to is boundaries.

MR WILLIAMS:  It certainly is capable of being done by

reference to any of the following factors

"an area of waters or a place" in the State Act;

in the Commonwealth Act "an area of waters or of

seabed".

MASON CJ:  But it does not have to be designated by

reference to that, so it can exist without reference

to a defined area.

MR WILLIAMS:	It does not have to be, however, 1n terms - - -
DAWSON J:	It does not tell you what a fishery is, does it?
MR WILLIAMS:	No.
GAUDRON J:	ls there any reason why that definition should

be taken over to the COASTAL WATERS (STATE POWERS) ACT?

MR WI LLIAJ1.S:	I do not think there is any reason for -
DEANE J:	In section 7B(9) it seems to have to be tied to a

specific plan of management.

MR WILLIAMS:  Your Honour is now looking at the

Commonwealth - - -

DEANE J:  Yes, Commonwealth FISHERIES ACT. That 1s

only for section 7B.

MR WILLIAMS:  No, with respect, section 7B does not relate

to arrangements. It is dealing with a different

concept there in plans of management of fisheries,

something quite different, Your Honour.

(Continued on page 31)

ClT31/2/HS	30	14/2/89
Macdonnell

MR WILLIAMS (continuing): But my argument as to why it is

necessary to specify an area of water appears on

pages 10 and 11 of the material which I handed up

to the Court. We see there that the FISHERIES

ACT of the Commonwealth does not contain a definition
of waters adjacent to a State but section 12A(2)
of the Commonwealth FISHERIES ACT provides that such:

References ..... to the coastal waters ..... and waters within the Australian fishing zone that

are adjacent to the coastal waters.

The arrangement provides - that is the first one -

that the relevant fishery -

is the fishery in the area of waters adjacent

to South Australia for ..... rock lobster.

Again, there is no specific identification of the

waters. In section 12R of the Commonwealth

FISHERIES ACT which is reflected in the State Act

section 18:

A statement in an arrangement ..... be

conclusively presumed to be correct.

But that only applies where there is a statement

that:

specified waters ..... are waters adjacent to

the States -

In this case there are no specified waters and

therefore no statutory presumption arises. And the

conclusion which I have asked the Court to draw is

that the waters referred to in the first arrangement

are not sufficiently identified to comprise a

particular fishery or specified waters within sections

121 or R of the Commonwealth FISHERIES ACT standing

alone.

Now, I was moving through the answers which I

would ask the Court to give on page 45 of the special

case. I have dealt with question 1. Question 2:

Is section 14 of the FISHERIES ACT .....

within the terms of the power purportedly
conferred on the Parliament of South Australia

by section 5 of the COASTAL WATERS (STATES

POWERS) ACT 1980 -

we think that the section is, yes. So that on the

face of it section 14 of the State FISHERIES ACT

appears to draw on section 5 of the COASTAL WATERS

(STATE POWERS) ACT. Section 14 provides that -

that is of the State FISHERIES ACT:

ClT32/l/BR	31	14/2/89
Macdonnell

Subject to this section, where there is in force an arrangement that provides that a particular fishery is to be managed in accordance with the law of the State, the provisions of this Act apply to and in

relation to the fishery -

et cetera. So that there being an arrangement in

force the State would no doubt claim that under

section 34 of the FISHERIES ACT of the State:

No person shall, for the purpose of trade

or business, engage in a fishing activity
of a class that constitutes a fishery

unless -

(a) he holds a licence in respect of

the fishery; -

et cetera. It does not relate in any way to South

Australia. It is just a general act which in the

ordinary course, in my submission, would have to be
read down in a way so as not to give it an extravagant

operation, to use the words, I think, of Your Honour

the Chief Justice in PEARCE V FLORENCA.

The State has in 1978 purported to pass a

jurisdiction act - the OFFSHORE WATERS (APPLICATION

OF LAWS) ACT 1976 and give all its laws an extended

application in having three bites of the cherry.

(Continued on page 33)

ClT32/2/BR	32	14/2/89
Macdonnell

MR WILLIAMS (continuing): Firstly- this in the schedule to

th;> OFFSHORE WATERS APPT.ICATION ACT- the offshore

waters there described are:

Those, waters between the southward

prolongation of the Western Australian and

Victorian boundaries of the State -

(a) that lie within three nautical miles

seaward of so much of the boundaries of the

State as abut thi? Sonthern Ocean;

(b) that lie within nine nautical miles

seaward of the seaward boundary of the waters

referred to in paragraph (a) -

that is to take it up to 12 miles and:

(c) that lie within eighty-eight nautical

miles seaward of the seaward boundary of the waters referr('>d to in paragraph (b) hereof -

taking it up to 100 miles. So that if one were to apply

that, and I will come back to that Act later- if one
were to apply that Act to section 34 of the FISHERIES

ACT it would appear that the State is claiming some sort of offshore jurisdiction. Well, I accept that

if the COASTAL WATERS (STATE POWERS) ACT is a valid

law, it does carry through into section 14 of the

South Australian FISHERIES ACT.	But if it does not
then question 2 {b) arises. Is it:

otherwise a law within the powers of the

Parliament of South Australia?

To that I would say the answer is, no:

3.        If the answer to question 2(a) is yes,

is section 5 of the COASTAL WATERS (STATE POWERS)

ACT ..... a valid law of the Commonwealth?

That will, in my submission, arise to be decided.	And
4:

If the answer to question 2(b) is or would otherwise be yes, is section 14 and are other provisions of the FISHERIES ACT 1982 (S.A.)

insofar as it or they may have purported to

apply to the Outside Fishery and/or may

purport to ~pply to th~ Outside Defined

Fishery (as defined in paragraph 11 of the

Amended Statement of Claim) inconsistent with

the FISHERIES ACT 1952 (Conrrnonwealth) and

thereby invalid by virtue of section 109 of the Conrrnonwealth of Australia CONSTITUTION.

Well, the answer to that question depends on how the

ClT33/l/SR	33	14/2/89
Macdonnell

Court reaches its answer to question las regards

the second arrangement because if the Commonwealth,

under the second arrangemen~ is simply treated as

vacating the field, well then no question of

inconsi.stency can arise. Question 5 - - -

MASON CJ: Before you get to that, can I ask you this question,

Mr Williams. Assume the Court were to answer

question 2(b) in the affirmative, it may be able to

arrive at that answer without passing upon question 2(a)?

MR WILLIAMS:  Yes, well, of course, that is the ,;-;ratershed. If

the Court were inclined to do that it would be possible

to answer this whole question without going into

the COASTAL WATERS (STATE POWERS) ACT if the Court is

of the view that all the section 12L does is to

vacate the field.

MASON CJ: What would be the consequences for q1-1est:ion 1. Would

it be necessary for the Court to pass on question l?

MR WILLIAMS:  So far as the second arrangement is concerned,

Your Honour, the answer is, with respect, yes, because the Court would, in effect, have to decide this

watershed question as a preliminary quPstion. I mean

it depends on how the Court wants to go about doing

the job, but looked at in answer to Your Honour's

question, the Court could ask itself first of all the question, what work does section 12L do? Now

entitled, in my submission, to approach the matter along the lines of simply saying ,"T :ie Commonwealth having vacated the field, then we look at whether the

if it is just a mechanical trigger to take the

State can legislate in this area.	On the facts of
the particular case there is or is not	nexus"and
it can then answer the last question 5.	So th~t

is my response, with r~spect, sir. Question 5:

Was the outside Fishery ana is the Outside Defined Fishery (as -:!~fined in.paragraph 11 of the Amended

Statement of Claim) to be managed in accordance with

the law of .South .~tral ia by virtue of the making

of the Arrangement -

-

and I emphasize -those i;..rords ''by virtue oi the making of the

Arrangement - ·

and the Second Arrangement and the provisions of

section 12L of the FISHERIES ACT (Conm:mwealth) and
section 14 of the FISHERIES N::r (South Australia) or

othm-nse?

Of course; the an..::wer to that is no, in my sub:nission.	Let us
assume that - - -

BRENNAN J: What is the reason for assigning a reason for the answer to

that question•by virtue of"or otherwise?

ClT33/2/SR	34	14/2/89
Macdonnell

MR WILLIAMS: Well, in fact, it has got a real practical

importance in the administration of these Acts

for it to be known the source of power of the State,

if it has any, in these offshore areas. Is it

administering its own laws, as such, or is it

exercising some sort of - I am not suggesting that

it could - a delegated jurisidiction? wbere does it

get its power from? If it gets is power from

the Commonweal th CONSTITUTION by virtue of placiturn (:x:x:xviii)

in my submission it is important for us to be able

to see what is the status of the officers, for

example, who are administering the law. Are they

officers who are ultimately to be regarded as

Commonwealth officers?

MASON CJ: Well, that may be an interesting academic question

but are there any practical questions that hinge

upon a resolution of the question?

MR WILLIAMS: Well, I mean, I cannot ask the Court to do more

than tell us whether the State has this power. In

the course of answering that question it may give

us a hint as to the answers to the questions I
simply raise but, I suppose, the answer is we have

simply split the questions up in this way to raise

the various possible segments. No, I could not

give a reason as to why the Court ought to answer

the various components of that last question.

MASON CJ: There is no practical question; no practical conflict

that you are aware of that would make it necessary

for the Court to answer question 5 in the precise

way in which it is currently phrased.

MR DOYLE:	I would not suggest any, Your Honour, llllless my friend
was going to develop some argument based on, for
isntance, Commonwealth officers, and whether people
are or are not.  But I do not suggest any particular
reason why it is necessary to.
MR WILLIAMS:	No, I would have accept that. Well then, before

seeking to develop the argument and just to complete

the factual picture, I would wish to take the Court

to what is put forward in this case as somehow

raising a nexus with South Australia. I have pointed

out the extent to which the relevant waters are

nearer South Australia than to Victoria. I suggest

that if someone were to fall overboard from a vessel

somewhere along the line ABCDE, he would have the

same distance to swim to South Australia and Victoria

at that point.

I understand that the Commonwealth may have now

produced a plan that is a little bit more accurate

than that but it does not matter conceptually for

the purposes of the argument. So that we say that

certainly that second arrangment, looked at as a

whole, cannot be supported on the basis of having

some particular nexus with South Australia, based on

ClT34/1/VH	35	14/2/89
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distance from the land. But that is not all that is

put forward against me. There are a group of

facts which I have agreed but, in my submission, they

simply amount to nothing in terms of establishing a

nexus. Might I take the Court to the special case?

MASON CJ:	Yes.
MR WILLIAMS:	I am not going to go through the paragraphs in the same way as they are developed here. This is
on page 40, it is said that - paragraph 11:

The southern rock lobster inhabits reef communities at various places in southern

Australian waters which waters extend from about south-west of Western Australia to about Sydney, including waters around

Tasmania.

12.      The ..... lobster is found in waters

ranging in depth from shallow to in excess

of 300 metres ..... In areas where the seaward

edge of the continental shelf is close to

shore, such as in the waters adjacent to

port MacDonnell, the southern rock lobster

is not found more than 50 nautical miles

offshore. In areas where the seaward edge
of the continental shelf occurs a considerable

distance offshore such as adjacent to the

Great Australian Bight the southern rock

lobster is to be found up to 200 nautical

miles offshore.

(Continued on page 37)

ClT34/2/VH	36	14/2/89
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MR WIILIAMS (continuing):  Then, against that, in paragraph 8

on page 38, it said that:

(a) The southern rock lobster is and for some

years has been the basis of major fisheries in

waters adjacent to the States of South Australia,

Victoria and Tasmania.

(b) Fishermen operating from the State of

South Australia in the Fishing Zone produce approximately 50% by weight of the total catch of Southern rock lobster from those

fisheries and have done so for some years.

In this context, "fishing zone" means nothing

more than the waters which are adjacent to

South Australia. That is in paragraph 4.4 of the

special case because that is:'

The fishery to which the Arrangement was and

is expressed to apply was and is the fishery

in the area of waters adjacent to South Australia

for crustaceans taken with the use of rock lobster

pots -

et cetera.

Now, 'adjacent", in my submission, has been dealt

with on a number of occasions. It simply refers to

what we might call the marine environs of an area and

it does not refer to any specific area. It is not a

geographical area, as Mr Justice Windeyer pointed out

in BONSER V LA MACCHIA.

So, we have in paragraph 8(b) that the:

Fishermen operating from the State of South

South Australia in this -

general area -

produce approximately 50% by weight of the

total catch of Southern rock lobster from

those fisheries -

which are near South Australia, Victoria and Tasmania.

We get the number of kilograms of rock lobster which

the fishermen operating from South Australia have

taken and the value. Undoubtedly, there is a

significant industry in rock lobster being operated

here.

MASON CJ: Well, that focused on the generality of the

Southern rock lobster fishery or fisheries in

South Australia, Victoria and Tasmania.

MR WILLIAMS:  Yes.

ClT35/l/SH 37 14/2/89

Macdonnell
MASON CJ: But, if one looks at this particular area, the

area that you have focused· attention on, where do

the fishermen come from who fish that area? Where

do they return the product that they catch to the

mainland?

MR WILLIAMS:  Well, the answer to that, Your Honour, is that

by reason of the way in which the Commonwealth has

operated its licencing system up to date, it has had

a zone boundary at longitude 141 east; that is just

slightly over to the east of the area now claimed by

South Australia and, with respect, obviously in those circumstances because of the licencing system it has

meant that a lot of the fish will be brought in to

Port Macdonnell. I am now just going to develop those

particular facts from the special case.

MASON CJ: Yes.

MR WILLIAMS:  We will see on page 39, 9(c):

Most southern rock lobster taken in the Fishing

Zone and the Defined Zone -

the'befined Zon~'is the area of the second arrangement -

are received and processed in South Australia. located in South Australia -

well, at various locations from Ceduna through to number of people who are employed and the fact that:

Directly and indirectly -

it -

is a major source of income and employment which are brought ashore. in those areas; that is, the processing of the fish (Continued on page 39)

ClT35/2/SH	38	14/2/89
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MR WILLIAMS (continuing): In terms of the actual licensing

what we see is in paragraphs 9 and 10.

9.      (a) Pursuant to section 36 of the -

South Australian Act, there have been -

317 licences (of which 89 licences have been

issued pursuant to Scheme of Management

(Northern Rock Lobster Fishery) Regulations 1984

and 228 have been issued pursuant to the

Scheme of Management (Soutrern Zone Rock Lobster

Fishery Regulations 1984) and are current permitting the holders to take southern rock

lobster. Of these licences eleven have been

issued to the one body corporate, four have

been issued to persons not resident in South

Australia and the remainder have been issued

to residents of South Australia.

We can draw no conclusion from that because it may

be that there are people who are - my clients, it

may be - choosing to observe the law prima facie,

as it stands, simply as a matter of policy. But

there may be many people from Victoria who are not resident, who are not choosing to obtain a licence in this area at this stage under the

South Australian Act.

On average each vessel engaged in taking southern rock lobster in the Fishing Zone

and the Defined Zone is manned by two

persons. The number of persons engaged in the taking of southern rock lobster either

as a licence holder or employee -

that is, of a licence holder -

is approximately 638. The majority of

persons employed in taking southern rock

lobster in the Fishing Zone and the Defined

Zone are resident in South Australia.

My submission is that the majority of people,

where they are resident, could not define "nexus".

Does that then mean that if suddenly there was

an upsurge of people from Victoria who chose to

fish and get licences in South Australia that

when the balance changes and you have a majority

of Victorians fishing that therefore the nexus
therefore changes in accordance with the state of

the population?

MASON CJ:	They might both have a nexus.
MR WILLIAMS:	That is a possibility, Your Honour, in which

case there is going to be a very difficult question

arising if both can exercise a jurisdiction in this

CIT36/l/JM	39
Macdonnell

way. My submission is that "nexus" needs to be

defined in terms of this case as to where the

limit of the area of operation arises. In a

Federation such as Australia, my submission is

that the situation on policy grounds should not
be allowed to arise in which,in respect of the

offshore areas, two States could in effect have

competing claims in conflict with each other.

There is no section 109 of the CONSTITUTION to

deal with such a situation. In my submission the

only way of dealing with it is by confining each

State to an area which can be shown to have some

connection specificially with the State.

It may be that in certain instances - let us say that there was a reef running out, perhaps,

a long way in a certain way so as to mean that

access could only be got to a certain fishing
area by going through a channel into, let us say,

South Australian waters. In that particular case

a nexus might be established. But this argument,

of course, is one that is put on general

principle that does not have any such particular

nexus.

(Continued onpage 41)

CIT36/2/JM	40	14/2/89
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MR WILLIAMS (continuing): If, on the other hand, to take

another example, there were, let us say, some

peculiar offshore current that came into a State,

a warm current that carried fish with it, there

might be certain laws dealing with the polluting

of that current offshore because one could see

a specific connection between a certain area of

water and the inshore areas. But the other wav of dealing with the situation, of course, in my. submission, is to draw the legislation in such a way as to impose the nexus itself, that is bringing

fish into a South Australian port without a licence.

BRENNAN J:  Do you say that there is some constitutional

foundation for the laying down of some dividing line?

MR WILLIAMS:  My submission is that perhaps this case is

indicative of the problem that there is certainly

as between neighbouring States - not in a Federation,

but in terms of international law - the concept of

giving each State jurisdiction equidistant offshore

has certainly been recognized and it is in my list

of authorities, the reference to the textbook that deals with that. But I simply say there is no way in which I can suggest of dividing up the offshore

area in terms of nexus, if the Court is prepared

to accept a general right of the States to

legislate far offshore except by drawing a line in

the way that I have suggested. That, of course,

is contrary to my argument because my argument
is that distance from the State in itself does

not create nexus. It is persons or events that

create the nexus and that is a matter, of course,

of drawing the legislation in the appropriate way.

BRENNAN J: 

I am not sure that I understand the foundation

of the argument. It could be the constitituional
foundation, that is with reference to the Australian
CONSTITUTION, it could be with reference to doctrines

of public international law,  it could be with

reference to limitation on the extraterritorial

as it were, drawn out of mid-air as a pragmatic powers of colonial legislatures, or it could be,

solution to the problems of the Australian

Federation.  Now, where do we start looking?

(Continued on page 41)

ClT37/l/HS	41	14/2/89
Macdonnell

MR WILLIAMS:  I say that the offshore, that is, the

extraterritorial jurisdiction of the States has

never been fully explored, that it has been put

in the past on the basis of nexus. Now, that nexus

has never in the past been expressed simply in

terms of distance from the State or except in

terms, of course, of the inshore area, that is, the
three miles where a special situation applies,

whether it be in the surf or further out and that,

in my submissio~, is a special case. But once

one illoves beyond that three mile area the nexus

becomes less strong. One could have imagined that

in the case of RAPTIS in Investigator Strait, if
the shape of the gulfs there - putting aside questions

of where boundaries between this State and the

Cormnonwealth arise - could be said to be I suppose
a nexus between certain waters there and South

Australia by reason of the physical way in which

they were enclosed by Investigator Strait and

Kangaroo Island. But I say, putting aside that

special case - and this one is not a special case -

there is no constitutional basis for simply saying,

"Well, because it is somewhere generally offshore

from South Australia there is a nexus."

So in my submission, the Court ought not to

accept mere distance from a State as giving rise

to nexus. So if that is done we never get to the

point of having to decide where one would draw

the line, it is only if the Court, in effect, says,

"Right, a certain State has a jurisdiction because

it is nearest to it." Then the only way, in my

submission, logically, of following that through

to its conclusion, is in a Federation to allow the

States an extraterritorial legislation generally

that goes no further than a point which is not

nearer to the land of another State, otherwise we

will have a situation where there is just conflict;

grounds that should not be allowed to

in my submission, unresolvable conflict between the policy

exist. That is my short answer to Your Honour. (Continued on page 43)

ClT38/l/MB	42
Macdonnell
GAUDRON J: Mr Williams, can I ask this:	if the source

of the State's legislative power is to be

seen in the COASTAL WATERS (STATE POWERS) ACT,

why would we then search for a nexus?

MR WILLIAMS: If it is to be found there, then no question

of nexus arises, Your Honour. I was developing

the argument based, I suppose, on what I

call this watershed, whether the Court approaches

it in one way or another. In terms of the

(STATE POWERS)Act, if that line of argument is

to be pursued, then it is a question of

statutory construction of section of

section S(c), when it refers to the "waters

beyond the outer limits of the State". Again,

I suppose it is a similar sort of argument.
I will say the waters beyond the outer limits

of the State ought to be confined in the way

that I have said so that the outer limits of

the waters of South Australia do not conflict

with the outer limits of the waters of Victoria.

So, if the Court goes about it that way it

would get to the same result as this problem of

an offshore nexus argument where one again is

keeping equidistant from the shore on either side.

That is my short answer to Your Honour.

There was only one other reference factually

to tie in this nexus argument, if the Court pleases,

and that is in clause 10 of the special case

on page 39:

All fishermen licensed under the FISHERIES ACT 1952

(Cth.) to take southern rock lobster in the

South Australia Zone Sand South Australia

Zone N -

that is the Commonwealth zones -

and who are presently licensed under the

FISHERIES ACT, 1982 (S.A.) to take southern

Defined Zone operate from ports in South	rock lobster in the Fishing Zone and the
Australia. Some of those fishermen hold Victorian and/or Commonwealth licences to take southern rock lobster in the waters adjacent to Victoria.

Again, we say it may simply be that those who

have licences under the South Australian Act are

those resident in South Australia who have chosen

voluntarily to comply. That, in itself, means

nothing, in my submission.

CIT39/l/JM	43	11/2/89
Macdonnell

MR WILLIAMS (continuing):  So that, at the end of the day the

Court is left, in my submission, with nothing that

creates any special nexus with South Australia either

on the facts or in the legislation. Now, having

said that and having acknowledged that there is a

watershed in the Court's approach, I then turn back

to the question as to whether or not South Australia

could get its jurisdiction via the COASTAL WATERS

(STATE POWERS). ACT and, in my submission, that Act

is beyond power. May I turn to the COASTAL WATERS

(STATE POWERS) ACT?

BRENNAN J:  Beforeyou go back to that, Mr Williams, looking at

the other side of the watershed for a moment, do

you need to put your argument in terms of the

general powers of a legislature with respect to

areas beyond its seaward boundary or can you limit

your argument to laws with respect to the

exploitation of natural resources that lie beyond

that seaward boundary?

MR WILLIAMS: Exploration of natural resources as against -

what was the first one, sir?

BRENNAN J: Generally.

MR WILLIAMS: Well, of course, exploitation of natural resources

may be a special case. That is a possibility. Let

us assume that we were not dealing with fish; that

we were dealing with sea grasses. In South Australia,

actually, we have got these great underwater fields

of seagrasses which have got a commercial value. Now,

let us assume that they exist offshore. That would be

a typical case of exploitation of offshore resources.

I would say that the State has no special right to deal with those and that is simply a part of the

general principle that any extraterritorial legislation

must be justified in terms of a nexus and it will be

a matter of fact and degree in each individual case

as to whether or not that nexus has been satisfied.

(Continued on page 45)

ClT40/l/VH	44	14/2/89
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:t'1\SON CJ:	Mr Williams, we will have to adjourn shortly. Before we do, I should ask the Solicitor-General
for the State of South Australia and the Solicitor-General for the Corrnnonwealth whether
they rely on ~~v other head of power, apart from .
section 51 (xxxviii) and the fisheries power, to sustain
the COASTAL WATERS (STATE POWERS) ACT.
MR DOYLE:	Not for the purpose of my submissions, Your Honour,

and I would, in particular, be submitting it is just

not necessary to go to matters such as external affairs.

MR GRIFFITH: If necessary, external affairs, Your Honour.

MASON CJ: That means you are going to rely on external - - -

MR GRIFFITH:  Yes. Well, we will mention it. Your Honour.

We will mention, first of all, (xxxviii) and (x) and then,

if necessary - - -

MASON CJ:  Yes. I mean, we cannot tell you, in the course of

argument, Mr Solicitor, whether it is necessary or

unnecessary to rely on it.

MR GRIFFITH:  No, Your Honour, we will do it. Well, Your Honour,

we will do it fairly quickly.

MASON CJ: Yes, very well. Yes, Mr Williams.

MR WILLIAMS:  Yes. I was about to turn to the COASTAL WATERS

(STATE POWERS) ACT and to submit that that is, in

itself, beyond power. Now, again, the Court may be

faced with another watershed because section 5 of

that Act has three separate subsections to it, (a),

(b) and (c) and it is (c) which apparently is relied

upon as justifying the fisheries legislation that

we are here dealing with.

I would be challenging each of those other

heads, that is, (a) and (b) as well as (c). I would

be submitting - at least, inviting the Court to deal

with the question as to whether or not the legislation

is severable because if it is not severable, then

section·5 must be justified under (a), (b) and (c)

and it may not be the same powers that will justify

(a), (b) and (c).

Now, assuming, though, however, that section 5

is severable - and I am dealing simply with the

fisheries power - I am then looking at a situation

where, on the face of it, the legislation has been

sought to be justified by the use of section 51 (xxxvii).

ClT41/l/SH	45	14/2/89
Macdonnell

MR WILLIAMS (continuing):  In my submission, the Act

is not justified by the terms of the placitum,

and I turn to that particular placitum.

MASON CJ:  Mr Williams, I think it may be convenient to

adjourn at that stage and we will resume at

10.15 am tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 15 FEBRUARY 1989

ClT42/l/HS	46	14/2/89
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