R v Bull

[1974] HCA 23

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Gibbs, Stephen and Mason JJ.

THE QUEEN v. BULL

(1974) 131 CLR 203

11 June 1974

Customs and Excise—Courts

Customs and Excise—Importation of goods—Customs offences—Goods brought within three miles of coast—Whether imported into Australia—Prohibited imports—Assembling to prevent seizure of prohibited imports—Possessing prohibited imports—Allowing ship to be used in importation of goods—Incidents occurring within three miles of Australia coast—Customs Act 1901-1974 (Cth), ss. 231, 233A, 233B. Courts—Supreme Court of Northern Territory—Jurisdiction to hear charges under Customs Act 1901-1974 alleging acts committed within three miles of coast—Whether admiralty jurisdiction—Jurisdiction of Supreme Court of South Australia on 1st January 1911—Northern Territory Supreme Court Act 1961-1971 (Cth), s. 15—Judiciary Act 1903-1969 (Cth), s. 39 (2)—Supreme Court Act 1856 (S.A.), s. 7.

Decisions

1974, June 11.
The following written judgments were delivered:-
BARWICK C.J. In March 1973 the vessel Mariana made a voyage from Darwin in the Northern Territory of Australia to the Island of Bali in Indonesia. On its return voyage towards Australia, the vessel was under the observation of Australian authorities concerned with the administration of the Australian customs. As the vessel neared the port of Darwin, an Australian Army helicopter co-operating with those authorities began to descend over the vessel in a fashion and to a degree well calculated to alert those on the vessel to the fact that the vessel was under close surveillance. A launch carrying customs officers was at the same time on its way from Darwin towards the vessel. It may be, particularly having regard to the subsequent actions of those on board the vessel, that the action of the helicopter indicated to them the imminence of a boarding operation by the customs. (at p207)

2. Joseph Corns was the master of the vessel: Barry Richard Bull, John Plithakis and Gregory James Conn were either crew members or passengers upon it. The vessel was carrying cannabis, procured in Bali and packed in suitcases. On the near approach of the helicopter these suitcases were jettisoned by those on board the vessel and its decks washed down so that upon the subsequent inspection of the vessel when boarded by the customs officers no cannabis was found on board. Later, in the port of Darwin, no cannabis was found upon any of the persons who had been on the vessel other than 14.8 grams of cannabis resin which was found on Gregory James Conn. However, as the vessel after being boraded was brought into port under escort, the possession within the limits of the port of this quantity of cannabis resin was not relied upon by the Crown in connexion with any of the charges subsequently laid. Some of the contents of the jettisoned suitcases, amounting to 31,000 grams of cannabis, was recovered from the sea by officers of customs. (at p208)

3. Joseph Corns, Barry Richard Bull, John Plithakis and Gregory James Conn (the accused) were thereafter indicted before the Supreme Court of the Northern Territory with having committed offences against the Customs Act 1901-1971 (Cth) (the Act). In the trial on this indictment, some of the charges were withdrawn, and upon others there was either a verdict of acquittal or no verdict at all. All four accused, however, were found guilty by the jury: 1. of importing into Australia a prohibited import, namely, cannabis, contrary to s. 233B (1)(b) of the Act; 2. of having in possession on board a ship a prohibited import, namely, cannabis, contrary to s. 233B (1)(a) of the Act; and 3. of assembling for the purpose of preventing the seizure of a prohibited import, namely, cannabis, contrary to s. 231 (1) (c) of the Act. The assembling contrary to the Act was said to have taken place on the vessel. Joseph Corns was also found guilty of knowingly allowing the vessel to be used in the importation of goods contrary to s. 233A of the Act. (at p208)

4. Having regard to the course of the trial and the verdict of the jury, the act of the accused relied upon as constituting importation of the cannabis was the act of bringing the suitcases on the vessel over a line three nautical miles from the coastline of the Northern Territory. The act of possession on which the breach of s. 233B (1)(a) was founded was possession on the vessel after it had crossed that line. Presumably the act of assembling for the purposes of s. 231 (1)(c) was the act of co-operating on the vessel in disposing of the cannabis which, again by implication from the verdict of the jury, occurred after the vessel had crossed that line. Further, it must be taken that the vessel was boarded by the customs officers after it had come within three nautical miles of the coast but yet not within the limits of the port of Darwin. (at p209)

5. Before the jury was charged, the accused requested the Judge of the Supreme Court presiding over the trial to reserve certain points of law for the consideration of a Full Bench of this Court. His Honour, however, followed the convenient course of taking the verdict of the jury with the results I have described, and thereafter postponed judgment until this Court should have answered the questions asked in a case stated by him pursuant to s. 72(3) of the Judiciary Act 1903-1969. (at p209)

6. That case is now before us. The questions asked are:
1. Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment (a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof; and (b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast?
2. If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty?
3. If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting?
4.Does the Customs Act 1901-1971 extend to the said offences (a) if they were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof; and (b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast? 5.If prohibited imports are voluntarily brought from a point outside a line
three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971? (at p209)

7. Questions asked as to any of the counts numbered 2, 4, 7, 9, 10 and 12 of the indictment being counts which were either withdrawn from the jury or in respect of which there has been a verdict of acquittal or no verdict at all, should not, in my opinion, be answered. To enable identification of those counts, I append to these reasons a numerical list of the counts in the indictment. Further, nothing in the case before the Supreme Court calls for an answer to questions 1(b),4(b),or5. Consequently, the only questions which, in my opinion, are proper now to be answered are questions 1(a), 2, 3 and 4(a). (at p210)

8. Cannabis is a narcotic drug within the meaning of s. 233B of the Act and is a substance the importation of which is prohibited by regulation made under s. 50. Thus, it can fall within the expression "prohibited import" in s. 51. Further, its importation into Australia is made unlawful and an offence by s. 233B(1)(b). I take question 1 to involve whether the acts I have detailed did amount to offences under the Customs Act. (at p210)

9. Consequently, the substantial questions which arise for decision in this case, in my opinion, are:
1. When under the Act is importation of goods into Australia effected? (at p210)

10. The competing views are: on the part of the accused, when goods are landed otherwise than duly through a proclaimed port or are brought within the limits of a port with the intention of landing them there; and, on the part of the Crown, when they are brought within three nautical miles of the coast of Australia with the intention of landing at some port or place in Australia.
2. Assuming validity, what is the geographical limitation, if any, to be implied in s. 233B(1)(a)? (at p210)

11. The opposing contentions are: on the part of the accused, that the possession to which the section relates is possession within the limits of a port or upon the land; and, on the part of the Crown, possession as well anywhere within the area bounded by a line drawn at three nautical miles of the coastline, that is to say, anywhere in "territorial waters" off the Australian coast.
3. Is the description "prohibited imports" applicable to goods which have not been imported? (at p210)

12. The accused content for a negative answer, whilst the Crown contends that the description is of a class of goods which are prohibited imports wherever they may be possessed, their importation not being essential to the satisfaction of the description.
4. Has the Supreme Court of the Northern Territory jurisdiction to try the indictment in this case? (at p210)

13. The accused submit that it has none, its common law jurisdiction being limited to offences wholly committed in the Northern Territory, any Admiralty jurisdiction which it may have being limited to offences which the Admiral could try, which none of the offences here is, and the invested federal jurisdiction derived from or through s. 15 of the Northern Territory Supreme Court Act 1961-1973 (Cth) being limited to the trial of offences against federal laws committed within the Northern Territory. That Territory by definition is limited to the land mass, not extending into the marginal sea, see s. 4, Northern Territory Acceptance Act 1910-1952 (Cth). On the other hand, the Crown contents that the jurisdiction of the Court is not so limited but extends to the trial of offences committed on the high seas or at any rate in "territorial waters" off the Australian coast, including offences against federal laws so committed, and that, in so far as it might be necessary for the support of that proposition and the Crown's submission as to importation into Australia, Australian territory extends to include the marginal sea bounded by what is conveniently referred to as the three mile limit. (at p211)

14. The case thus raises most substantial issues, all of importance. The answers to the four questions I have posed will provide the material for answering questions 1(a), 2, 3 and 4(a) of the stated case. The full details of the facts of the matter are not before us nor is the summing up of the learned trial judge. Nor are we presently concerned with the further proceedings in the Supreme Court except that they must be conducted in conformity with the answers which the Court gives to the questions posed in the stated case, and with any necessary implications therefrom. Thus the question whether there really was any evidence of persons having assembled for the purpose of preventing seizure is not before us; the actual purpose of the persons either in being on the ship or in co-operating thereon to dispose of the suitcases being a matter for investigation as well as the proximity of a threat of seizure of the goods as distinct from close surveillance or attempted identification. Further, the question whether there was evidence of an attempt to import the cannabis for which the accused should be tried is a question for the consideration of the Supreme Court. Whether or not these questions remain for consideration must depend, of course, on the outcome of the stated case: but none of these are matters with which, on this stated case, this Court, in my opinion, should concern itself. (at p211)

15. It will be convenient to deal first with the question as to when goodsare imported into Australia within the meaning of the Act. Because the power to impose a duty of customs is exclusive to the Parliament and because continental Australia and Tasmania is each an island, there can be no importation into Australia except of goods which come from overseas. Thus, unlike the case of a country with land boundaries shared with another country, e.g. the United States of America, there is no need to distinguish between importation by land and importation by sea. But, of course, the possibility of landing goods otherwise than duly through a proclaimed port must be, and in the Act has been, considered. (at p212)

16. The question is not what constitutes importation in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia. However, in general, importation of goods, in my opinion, according to the natural meaning of the words, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated. I have not found or been referred to any reported decision, with the possible exception of Brown v. Kenyon (1767) Burrell 30 (167 ER 457) , which casts any doubt on that general proposition. I may say as to the case that the report of the argument is more illuminating than the terms of the judgment. Giving the Court's reason full consideration, I have concluded that the seizure in that case was considered by the Judge in Vice-Admiralty to have been effected within the area of the port of New York. On that footing the result of the case is understandable. But, in any case, neither the conclusion nor the reasoning, in my opinion, affords colour to the proposition that importation takes place on the high seas. (at p212)

17. In the present case, attention was drawn in argument to a difference between s. 233(1)(b) and s. 233B(1)(b). The latter speaks of importing into Australia whereas the former contents itself with a prohibition on importing. In my opinion, there is no significance for present purposes in the difference in expression in the two provisions, though introduced into the Act at the same time. The word "import" will have the same significance in each place: and, if, as I think, it means in any case import into Australia, the words "into Australia" in s. 233B(1)(b) add nothing of significance. "Importation seems to have been treated as involving importation into Australia in Wilson v. Chambers &Co. Pty. Ltd. (1926) 38 CLR 131 eg, at pp 136, 149 . See also Lyons v. Smart (1908) 6 CLR 143, at p 150 . The particular subject matter of s. 233B(1)(b) and its relation to overseas trade does not afford any reason, in my opinion, for any differentiation in the construction of these provisions. (at p212)

18. Argument was addressed to the Court as to the territorial boundaries of Australia and I shall later say something as to that matter. But I presently observe that the meaning of the expression in the Act "import into Australia" cannot be determined by isolating "Australia" from the total expression. The question cannot be what are the boundaries of Australia for purposes other than the present. The question is what is involved according to the proper construction of the Act in the activity of importing into Australia. (at p213)

19. It is necessary now to examine the Act in order to discover what meaning is required by the statute to be given to the expressions "import into Australia" or "importation into Australia". Neither expression is the subject of definition by the Act. In the references which I make to the Act I omit the case of goods arriving on an aircraft or through an airport in relation to which the problem posed by the submissions made in this case does not arise. (at p213)

20. In considering the Act, both as to meaning and validity, it must be borne in mind that the constitutional powers supporting the statute are, in relation to the duties of Customs, the power to make laws with respect to taxation, s. 51(ii); and, in relation to the prohibition of importation, the power to make laws with respect to trade and commerce with other countries, s. 51(i). Section 90, im making the power of the Parliament to impose duties of customs and excise exclusive, does not alter the constitutional basis of the imposition of those duties; their imposition is a form of taxation. Of course, the incidence and the amount of such duties are determined not merely by the need for revenue but by the protective and fiscal policies of government. The attainment of those policies, though they may not form directly the subject of legislative power, is a constitutionally permissible use of the power of taxation and, indeed, of the trade and commerce power. But in considering whether any particular provision of the Act is within the power of taxation, within the trade and commerce power or within the legislative power given by s. 51(xxxix), it is taxation, trade and commerce and the execution of the laws made under those powers and not the policies which have determined the incidence and amount of the duties or the prohibition of imports to which the provision must relate or be found to be incidental. Further, in seeking the meaning of a provision which is ambiguous or in need of construction, the same considerations must be borne in mind. (at p213)

21. I turn now to examine the Act. "The Customs" means the Department of Customs. In order to secure due importation, goods are subject to the control of the customs from the time of importation until the earlier of delivery for home consumption or exportation beyond the seas, s. 30. Further, all goods on board ship from parts beyond the seas are subject to the control of customs whilst the ship is within the limits of any port in Australia, s. 31. This provision obviously includes goods which are not intended to be landed but which are in transit through the port. Goods subject to the control of customs may be examined by customs and may not be moved except as authorized by the Act, ss. 32 and 33. (at p214)

22. Entries may be made and passed for all goods subject to the customs, s. 36. Thus, for example, goods in transit and not intended to be landed as imports may be entered for removal to a transit warehouse: see ss. 40A and 37(1c). Imported goods must be entered for one of four named purposes, s. 68. It would seem that on the proper construction of s. 69, the Act contemplates that the goods will be entered immediately upon importation, "immediately" in that section being referable, in my opinion, to the time of the importation of the goods. Section 69 allows a sight entry to be made and s. 71 requires a complete entry within a limited time. Goods which are subject to the control of customs are provided by the Act must be entered, whether or not they are dutiable goods. On the passing of the entry, including a sight entry, the goods must be dealt with "forthwith" in accordance with the terms of the entry, s. 40. There is not specification of the time within which the entry must be passed by the customs though the manner of passing an entry is specified, s. 39. Entries are to be made of the goods unshipped. Section 49 authorizes the customs "for the purpose of securing the due importation of goods" to board the ship, have a report of the cargo and examine the goods before being landed. Due importation must mean importation in conformity with the Act, which imposes duties of customs according to the "Customs Tariff" as defined, s. 4(1). (at p214)

23. Certain of the Australian ports are proclaimed as ports for the purposes of the Act. Section 15 enables their establishment - in the sense of proclamation - and the fixation of their precise limits. Within such ports boarding stations are appointed, s. 15. A ship must not enter any place other than a proclaimed port except under stress of weather or other reasonable cause, s. 58. An overseas ship shall be brought to an appointed boarding station within the port to which it is bound or at which it calls, s. 60. Having come to the boarding station and having been boarded by an officer of customs, the ship is to be brought directly and as quickly as lawfully practicable to the proper place for mooring or unloading, s. 62. Wharves for the landing of goods and places for the examination of goods on landing may be appointed, ss. 15 and 17. The master of a ship which has arrived from overseas shall within one day of arrival report the ship by delivering its inward manifest of goods for that port, s. 64. In that provision, "arrival", in my opinion, means entry of the ship within the limits of the port. The ship may not be cleared for leaving that port unless all her inward cargo according to the manifest has been duly accounted for to the satisfaction of the Collector of Customs, s. 122. When a ship is lost or wrecked upon the coast, the master must without unnecessary delay report the ship and cargo by delivery of her manifest to the customs house nearest to the place of loss or wreck, s. 65. Dutiable goods shall be delivered without unnecessary delay to an officer: otherwise flotsam and jetsom shall not be moved without the authority of the customs, ss. 66 and 67. (at p215)

24. The scheme of the Act thus seems to be to control the due importation of goods by channelling shipping through proclaimed ports having defined limits and through boarding stations within the port to appropriate wharfage. The inward cargo is to be reported, the goods are to be entered unshipped immediately upon importation, and upon the passing of the entry, to be forthwith dealt with in accordance with the terms of the entry. In order to secure due importation, all goods from importation until passed into home consumption or until exportation abroad are subject to customs control. Goods in transit not intended to be landed are also subject to that control. There is no express provision of the Act requiring that an entry be made of goods brought within the limits of a port and not intended to be landed but to be oncarried. Section 68 confines itself to imported goods. However, imported goods intended for transhipment must be entered, s. 68: and presumably any goods may be entered for removal to a transit warehouse. (at p215)

25. All the provisions to which I have so far referred operate on the footing that importation takes place on entry into port of the goods intended to be discharged from the ship at that port. The requirement of entry of imported goods unshipped necessarily denies the proposition that importation only takes place in any case when goods are landed. It seems to me that the conclusion that entry into the port with the intention of being landed constitutes importation, is implicit throughout the reasons for decision in Wilson v. Chambers &Co. Pty. Ltd. (1926) 38 CLR 131 , and is so expressed in the reasons of individual Justices, e.g. (1926) 38 CLR, at pp 134, 139 . (at p215)

26. However, the submission has been made that importation of goods carried by an overseas ship takes place on the entry of the ship within the three mile limit. This submission is based principally on the presence in the Act of s. 59 and also upon the presence of the words "into Australia" in s. 233B (1)(b), it being claimed that, for the purposes of the Act, Australian territory extends to the three mile limit. It is therefore necessary to examine these contentions. (at p216)

27. The conventional "three mile limit" is a line which follows at a distance of three nautical miles precisely the contours of the coast, its bays and headlands and, in some locations, is calculated from conventional or even unilaterally determined "base lines". To determine it at any given point is a matter of considerable difficulty, depending on accuracy of charts, observations and calculations. It is a line which rarely, if ever, needs to be determined for commercial navigation. For example, although ships northward bound on the coast of New South Wales will steam close to the shore to avoid the southward flowing current, they have no need for that purpose to determine the location of the three mile limit. Shipping, whether coming round the Cape of Good Hope or through the Suez Canal, may well pass within three nautical miles of Cape Leeuwin, and though passing out of territorial waters as the Australian Bight is crossed, may well pass within three miles of one or other island in Bass Strait. I cannot think that the three mile limit is of navigational interest in such a passage. That limit does not correspond to any fathom line or to the continental shelf or to any point upon or to any area of it. It describes an area of the high seas in which by international comity the littoral nation state may exercise control in furtherance of its defence and its domestic welfare. In that respect, that area of the high seas may be said to be within the dominion of the nation state, but laws operating in that area of the high seas are of an extra-territorial character. ( at p216)

28. Section 59(1) requires the master of a ship arriving within three nautical miles of the coast, if appropriately hailed or signalled by customs or service ship, to bring the ship to for boarding and, having done so, by all reasonable means to facilitate boarding by the officer of customs, s. 61. Having thus boarded a ship, the officer may stay upon it, sleeping accommodation and food being provided by the master. Section 59 speaks only of the ship being brought to "for boarding". Whether, having boarded, the officer may exercise all or any of the powers given him by ss. 187, 189 and at least some of the powers given by s. 190 whilst the ship is still outside the limits of a port is a matter for consideration. But neither s. 59 makes, nor would the possession of these powers make, the cargo or the ship subject to "customs control" as that expression is used in the Act. Consequently, the powers given by s. 186 would not, in my opinion, be available, to an officer who has boarded a ship pursuant to s. 59. Further, the fact that an officer has boarded a ship pursuant to s. 59 does not relieve the master of the obligations of ss. 60 and 62. The ship bound to a port is in any event to bring to at a boarding station within the port. The point where the ship is brought to pursuant to s. 59 to permit and facilitate boarding is not a boarding station. (at p217)

29. Section 59 speaks of a ship "arriving". This may not seem an apt description of a ship which has entered the marginal seas, for example, off Gabo Island, on its way to discharge at Sydney or has come within three nautical miles of Cape Leeuwin en route for eastern Australian ports. One could readily understand a power to board a ship within three miles of a port as facilitating the clearance of passengers and their luggage. But, although there may be some difficulty in equating "arriving" with "being" or "coming", this case can be decided on the footing that the power given by s. 59 is not limited to boarding a ship within three miles of its port of destination but that the power is available with respect to a ship anywhere within the three mile limit around continental Australia and Tasmania. (at p217)

30. Section 59 might be supported both by the taxation and by the trade and commerce power. It is not prefaced as is s. 49 with the words "For the purpose of securing the due importation of goods". Section 49 gives a boarding power which in the context of the Act must refer to the boarding of a ship which has arrived within the limits of a port. The report of the cargo for which s. 49(2) and s. 64(a) provided, quite clearly is to take place after arrival within a port. The power to prevent "hovering" is found in s. 185 where the power to board is expressly accompanied by the power to search. Section 187 gives an officer power to board any ship, search any ship, or secure any goods on any ship: but the need for some limitation on the generality of the section is evident. The searching of a ship boarded under the powers given by s. 185 would seem not to be included in the powers given by s. 187. Again, it may be doubted whether the power to board given by that section would extend to the boarding of a ship within three nautical miles of a coast. For that, express power has been given by s. 59. Quite obviously, there must be a geographical limitation implied in s. 187. In my opinion, that geographical limitation in relation to a ship is "within the limits of a port", just as in the case of an aircraft it must be upon the land though strangely enough s. 188 requires the pilot of the aircraft to provide "sleeping accommodation in the cabin and sufficient food for the officer", something readily understood in relation to a ship but unlikely enough in the case of a landed aircraft. The injection of the officer into the plane in the airspace near Australia is, to say the least, somewhat unlikely. The power given by s. 186 to open packages etc., would not seem to extend to the cargo of a vessel within a three mile limit of the coast because s. 186 is limited to goods which are subject to the control of the customs, and as I have pointed out, nothing makes the goods in the cargo of a ship within three nautical miles of the coast subject to the control of the customs. (at p218)

31. The power to board a vessel in the marginal waters is very old in the law of customs. It is consistent with the principles of international law as expressed by Sir W. Scott in "Le Louis" (1817) 2 Dods 210, at pp 245-246 (165 ER 1464, at p 1476) :
"Upon a principle much more just in itself and more temperately applied, maritime states have claimed a right of visitation and enquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions for various domestic purposes, and particularly for fiscal or defensive regulations more immediately affecting their safety and welfare." (at p218)

32. This power was evidently intended as a means of preventing smuggling, that is to say, to prevent the discharge of goods to land otherwise than through a designated port. Thus, although not prefaced with words relating to the due importation of goods, I would conclude that the purposes of s. 59 is, as was historically true, to prevent smuggling and to ensure that the goods in the cargo of the vessel are brought into port and not surreptitiously discharged. Hence, no doubt, the power to seal the cargo. (at p218)

33. But this provision for boarding in the territorial waters does not have any logical connexion, in my opinion, with the question of when importation occurs. Indeed, if the goods in the ship are imported so soon as the ship arrives within territorial waters, s. 59 would be otiose: s. 187 in that event could not be limited to a vessel in port and would be available in relation to goods in the ship within territorial waters. (at p218)

34. However, in any case, it is to my mind a completely impractical concept that importation of goods takes place so soon as and wherever the ship carrying them enters the marginal seas, perhaps only to leave them again for navigational purposes as it moves towards the port of discharge. In my opinion, it would not be reasonable or practicable to impose on the owner of goods in a ship which has entered such marginal waters as from the moment of such entry the obligations which the Act places on an importer. Such a person would be unaware of the time of such entry. He could scarce be required immediately thereafter to enter the goods, even by a sight entry. (at p218)

35. But it is said that "Australia" as a territorial description stretches to the line of the three mile limit and is not a description merely expressive of the land mass of the continent and of Tasmania above sea level. What I have already said about importation would make it improper to so regard Australia for the purposes of the Act: in other words, to import into Australia, in my opinion, is to bring goods within the limits of a port or to land them in breach of the Act. In reaching this conclusion of the construction of the Act, I have found no need to rely upon Reg. v. Keyn (1876) 2 Ex D 63 . The question in construing the statutory expression "import into Australia" is not whether "the realm" extends beyond low water mark. If it were, I would regard that question as settled by Reg. v. Keyn. If it were an open question I would myself feel convinced by the reasons of the majority, particularly those of Cockburn L.C.J. (1876) 2 Ex D, at pp 159ff . (at p219)

36. But, in any case, I am unable to accept the proposition that the limit of Australian territoy is co-extensive with the three mile limit. I have already expressed my opinion that the submerged land of the continent to the point where it meets the ocean floor, referred to as the continental shelf, at least to the extent to which it can be used or exploited, is within the sovereignty of the nation, both as regards other nations and as regards the Australian States. But that does not mean that a reference to Australia in a statute of the Parliament is a reference to Australia as if bounded territorially by that continental shelf. Nor does it mean that the waters superincumbent on that shelf are within the territory of Australia. The question whether the waters within the line three nautical miles from the coastline as "territorial waters" are under the dominion of the nation, absolute or limited, is yet another and a different question. I have already referred to the extent of the control of them which is comformable to international comity. Quite clearly, there is an international right of innocent passage through them. It is an odd concept that a foreign ship exercising this right of passage is traversing the territory of Australia. I had occasion in Bonser v. La Macchia (1969) 122 CLR 177 , to consider the meaning of the constitutional expression "beyond territorial limits". But again the question of the meaning of "Australia" in a Parliamentary enactment was not involved: nor does a conclusion as to the meaning of the expression "Territorial limits" in the Constitution necessarily determine the meaning of "Australia" or the extent of Australian territory. (at p219)

37. In my opinion, in the phrase "import into Australia" the reference is to the unsubmerged land mass of the continent and of Tasmania which does not include the marginal waters or, for that matter, any part of the continential shelf. The question is what is involved according to the Act in importation into Australia. On that I have expressed my firm conclusion. Accordingly, I am of opinion that, in order to commit the offence of importing created by s. 233B(1)(b), the goods in question must have been brought within the limits of a port with the intention of landing them or must have been landed in Australia. (at p220)

38. The next question is whether any, and if so what, geographical limitation is implicit in s. 233B(1)(a). If to be prohibited imports the goods must have been imported, then the possession which offends must be possession in a port or on the land. Thus, the meaning of the provision as to importation will decide the identification of prohibited imports. (at p220)

39. However, I will first essay the construction of the section as to the place where possession is to be had. At the outset, the section cannot be referring to possession anywhere in the world. Some geographical limitation is essential to make the section relevant to the Act and its purposes. Here the Act may be regarded as dealing with a matter of trade. The prohibition of import is not a matter of taxation: nor, in my opinion, incidential to that subject matter or to the execution of a revenue law. The offence created by s. 233B(1)(b) is, in my opinion, incidential to a prohibition on trade: it is a means of rendering the prohibition of importation effective. It seems to me that a principal purpose of s. 233B(1)(a) is to enable the prosecution of a person found in possession of the goods where it cannot be established who the actual importer of the goods was, though its application may not be limited to such a case. It can be used to embrace accomplices after an importation in breach of the Act. To construe the section as referring to possession on land or in a port of imported goods the importation of which is prohibited would give it a wide and effective operation. (at p220)

40. But it was argued that because an officer might board a ship arriving within three nautical miles of the coast the section must include possession within the marginal waters of the coast. I am unable to see any logical connexion between the two sections. Applying the section to the foreign trade by sea, the possession of the cargo is in the master of the vessel, the right to possession, absolute or conditional as the case may be, being either in consignor or consignee as the circumstances require. Knowledge of the nature of the thing possessed is not essential to the commission of the offence under s. 233B(1)(a); however much ignorance of it may exculpate: see Maher v. Musson (1934) 52 CLR 100 . It would, in my opinion, be absurd to construe the section as making it an offence in the master to be in possession in the marginal seas of any goods the importation of which is prohibited. One might well ask, why the marginal seas? What relevance to the matter in hand, trade and commerce, have they? I can find no logical reason connected with the regulation of foreign trade or, for that matter, with the collection of the revenue, which would suggest that the implied geographical limitation was that the ship should be in territorial waters. (at p221)

41. Section 59, even if it be thought that it renders available to the boarding officer all the powers of ss. 187, 189 and 190, does not give the officer any power of the search of person. Section 59 would thus scarcely be relevant to the possession by a person on a ship on the high seas of narcotic goods or other goods the importation of which was prohibited, not being a part of the cargo but held by him on his person or in some personal luggage. (at p221)

42. It is noticeable that the term in the section is "has in his possession", not "having had" but "has" in his possession. It is not equivalent to a common form of provision, namely, "is found" with goods in possession. The reference "has in his possession" cannot mean "has" when the officer boards the vessel or at some other time. The only relation the "having possession" seems to me to have is to the period when the ship is in a port and not to any period when it is on the high seas. The possession thus is relevant to importation. (at p221)

43. In this connexion, I may say I would not read par. (c) of s. 233B(1) as excluding possession on a ship in port, though the contrast between pars (a) and (c) is that (a) contemplates that the goods are in possession on board the ship and (c) deals principally with the case of possession otherwise than in a ship. (at p221)

44. I should point out that I am not here concerned with questions of validity, nor am I concerned to discuss whether the Parliament could be appropriate language create an offence in relation to possession of goods on a ship within territorial waters or, for that matter, on a ship carrying cargo to Australia. My concern is with the section as it now is. As I have pointed out, it obviously needs some implication to make good sense of the provision. I have indicated what in my opinion is the implication which should be made. (at p221)

45. Section 233B(1)(a), in my opinion, does not apply to a case where narcotic goods are in possession of a person on a ship which is not within the limits of a port in Australia and, in particular, that it does not apply to a person who has the goods in possession on a ship which happens to be, at some point of time during his possession, within the three mile limit. (at p221)

46. I turn then to consider what are prohibited imports. By definition through s. 51 they are goods the importation of which is prohibited. But are they prohibited imports before they are imported? The actual importer of such goods is caught by s. 233B(1) (b). Persons holding them either for him or from him, in my opinion, are reached by s. 233B(1)(a) or 233B(1)(c), usually depending on whether or not the goods have been landed. Section 233B(1)(ca) covers the case of possession in Australia where actual importation cannot be established but is reasonably suspected. (at p222)

47. It is of interest to notice in passing that in the application of s. 233(1)(d) smuggled goods must be goods which have been imported. (at p222)

48. It is convenient at this point to refer to the mechanism for prohibiting the importation of goods as a regulation of overseas trade and commerce. It is observable that the manner of excluding goods in the exercise of the control of overseas trade and commerce is to authorize the specification of goods which may not be imported. This has introduced into the regulation of trade and commerce the concept of importation as used in connexion with the recovery of duties of customs. A convenient drafting device has been adopted in the use of the description "prohibited imports" for goods the importation of which is forbidden. The principal substantive provisions in the regulation of trade in goods are s. 233(1)(b) and s. 231(1)(a), which make it an offence to import any prohibited imports, that is to say, to import any goods the importation of which is prohibited. (at p222)

49. Section 50(1) empowers the Governor-General, by regulation, to prohibit the importation of goods. Under this power he may prohibit the importation of all goods except under licence. He is not limited to prohibiting the importation of specific goods or of goods of a class. The width of the power to proclaim the prohibition of importation may be seen in the decisions of this Court in Radio Corporation Pty. Ltd. v. The Commonwealth (1938) 59 CLR 170 ; Poole v. Wah Min Chan (1947) 75 CLR 218 and Reg. v. McLennan; Ex parte Carr (1952) 86 CLR 46 . Thus, the importation of all goods could be prohibited as the result of a regulation made under s. 50. In that case, all goods would be prohibited imports. (at p222)

50. It was submitted that the expression "prohibited imports" described a class of goods identified by their proscription by regulation. Thus it is said, wherever they may be, if they fall within the description of the relevant regulation, they are prohibited imports, whether they are in fact imported or intended to be imported. I am quite unable to accept this submission. To my mind, it cannot have been the intention of the legislature in enacting s. 50 and s. 51 to so provide. Apart from perhaps providing a ground to question the validity of provisions so construed, the result of that view indicates its unnacceptability. I have already pointed out the possibility of the prohibition of importation of all goods, e.g. without a licence to import. It could scarcely be contemplated that possession anywhere of any goods was being proscribed. But, further, marihuana grown in a suburban back-yeard in an Australian city would on such a construction fulfil the description of the regulation made in respect of narcotic goods pursuant to s. 50. Yet, obviously, it cannot have been intended to include the home-grown production in the expression "prohibited import". Again, a locally printed text of a book the importation of which is prohibited cannot have been intended to fall within the provisions of the Customs Act. Nor could a provision making possession of such a product or such a book an offence be within the competence of the Parliament. In other words, in my opinion, to satisfy the expression "prohibited imports" the goods must be imports, they must have been imported. Section 51 does no more than by a convenient drafting device describe goods which being imported will be prohibited imports, goods imported in breach of the prohibition of their import. In my opinion, prohibited imports are imports the importation of which is prohibited. (at p223)

51. The views I have so far expressed would be sufficient to dispose of the indictments and verdicts to which I earlier referred and which are the subject of question 1(a) with the exception of the charge against Joseph Corns of knowingly allowing the vessel to be used in the importation of goods contrary to s. 233A. (at p223)

52. The process of importation as distinct from the act of importation is not confined to what occurs at the actual time or place when and where the goods are imported. The Court observed upon this circumstance in Forbes v. Traders Finance Corporation Ltd. (1971) 126 CLR 429 , when it decided that a motor vehicle used to carry goods away from the airport when they were prohibited imports was used in the importation of those goods. It seems to me that a ship which is carrying goods for the purpose of their importation contrary to s. 233A may be used in the process of the importation of the goods though because of official intervention they are not, in the result, imported. Close proximity of the vessel to the port of intended discharge at the time of official intervention will be a factor in deciding whether, there being in fact no importation, the vessel was so used. It seems to be clear on the facts of the stated case that the master of the ship had knowledge of what he was carrying. It could be concluded that he knew that the goods were to be imported into Australia and that, because of their nature, their importation was prohibited. It could be inferred that to his knowledge it was through the port of Darwin by the same or another vessel that the cannabis was to be landed. Thus, given the proximity of the vessel to the port, it could be held that he was knowingly allowing his ship to be used in the process of importation of the cannabis. In my opinion, there was evidence tu support a conviction of the master of the vessel under s. 233A of the Act by a competent court even though, due to the boarding of the vessel, the cannabis was not imported. (at p224)

53. It becomes necessary therefore to consider and decide whether the Supreme Court of the Northern Territory had jurisdiction to try the master of the vessel for the breach of s.233A of the Customs Act by an act not committed in the Northern Territory. That Court's jurisdiction is entirely statutory and derives from s. 15 of the Northern Territory Supreme Court Act, which is in the following terms:

"(1) The Supreme Court - (a) has, subject to this and any other Act and to any Ordinance, in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before the first day of January, One thousand nine hundred and eleven; (b) has such jurisdiction, whether civil or criminal, as is from time to time vested in or conferred on the Supreme Court by Act or by Ordinance (including an Act or Ordinance passed or made before the commencement of this Act, as affected by sub-section (5) of section four of this Act); (c) has jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, being matter arising in, or under the laws in force in, the Territory; and (d) has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance, to hear and determine appeals from all judgments of inferior courts in the Territory given or pronounced after the commencement of this Act. (2) The jurisdiction of the Supreme Court of South Australia referred to in paragraph (a) of the last preceding sub-section includes jurisdiction that that Court had as federal jurisdiction.

(3) The jurisdiction of the Supreme Court referred to in sub-section (1) of this section is in addition to the jurisdiction that the Court has under any Imperial Act." (at p225)

54. I shall deal with the possibilities of jurisdiction, first, as equivalent in the Territory to that which the Supreme Court of South Australia had in relation to that State on 1st January 1911, other than federal jurisdiction vested in that Court by the Judiciary Act 1903-1910 and, second, as equivalent in the Northern Territory to that federal jurisdiction enjoyed by the Supreme Court of South Australia. No suggestion has been made of any jurisdiction deriving from par. (b) of s. 15(1).

55. We are concerned throughout this discussion with jurisdiction of the Supreme Court to try persons present within the colony or State as the case may be for acts committed on the high seas, which undoubtedly commence at low water mark. We are not concerned with the powers of the legislature of the colony or State to pass extra-territorial laws. Nor are we concerned with the question whether colonial or State legislatures had power to increase the jurisdiction of the courts locally administering the jurisdiction of the Admiral, cf. Prince v. Duncan (1871) 10 SCR 253 : or with the question whether a local legislature could empower its courts to try persons for acts committed on the high seas or some particular part of it against the laws of the State or colony. (at p225)

56. The colony of South Australia was erected by letters patent issued pursuant to 4 &5 Wm IV c. 95. The letters patent were dated 19th February 1836 and were proclaimed in Holdfast Bay, South Australia, on 28th December 1936. The letters described the boundaries of the land to be included in the colony. It was over that area of land that Governor Hindmarsh was appointed Governor. That area quite clearly, according to the description in the letters patent, was bounded in the south by the sea. The colony, though graduating to self-government in relation to domestic as distinct from foreign affairs, remained a colony within the British Empire. Its territorial boundaries did not alter when upon federation it became a State of the Commonwealth, though still within the Empire. Thus a reference to the colony or State of South Australia was and is, in my opinion, a reference to a land territory bounded by the coastline, i.e. by low water mark on the shore, offshore islands and estuaries of water inter fauces apart. (at p225)

57. It is, to my mind, abundantly clear that the Imperial Parliament throughout considered the waters within a marine league of the coasts of the colonies of the Empire as Imperial territorial waters and to be, so far as concerned the trial and punishment of offenders, within the jurisdiction of the Admiral. Such offences are properly described as extra-territorial offences. The very terms of the Territorial Waters Jurisdiction Act 1878 (Imp.) make those conclusions abundantly clear. (at p226)

58. It is fundamental to a discussion of the jurisdiction of the Supreme Court of South Australia to bear in mind that the distinction between the jurisdiction of the courts to common law and that of the Admiral in criminal matters has never been eliminated. The land and the high seas which begin at low water mark, so far as crime is concerned, remain in contrast. What has occurred, historically, is that the judges of the courts of common law have been endowed with the capacity to exercise the jurisdiction of the Admiral in criminal matters and allowed in time to apply in its administration common law procedures rather than those of the civil law. In this sense, as Holdsworth says, History of English Law, vol. 1, p. 551, "the criminal jurisdiction of the Admiralty was transferred to the judges of the courts of common law" and "the criminal jurisdiction of the Admiralty has thus for almost four centuries been exercised by the judges of the courts of common law". The authority so exercised was with respect to offences committed by British subjects anywhere on the high seas and by any person on a British ship on the high seas, and after the Act of 1878 by anybody in Imperial territorial waters, i.e. including foreigners on non-British ships. The jurisdiction of the Admiral was not limited to any class of offence but extended to all offences, including those created by statute. This authority, exercised by those who were judges of the common law courts, did not become part of the jurisdiction of the common law courts themselves. But this distinction ceased to have any practical significance in England. However, where, as was the case of the colonial courts, jurisdiction was given by reference to the jurisdiction of the common law courts, the distinction could be crucial, as indeed I think it is in the instant case. (at p226)

59. There is no need for me to trace this progressive assignment of the administration of the jurisdiction of the Admiral to the judges of the common law courts in England or the procedural devices by which it was effected. The criminal as distinct from the instance aspect of that jurisdiction ultimately came to rest with the Central Criminal Court in 1834 in respect of certain English counties, see 4 &5 Wm IV c. 36: and in 1844 with Justices of Assize holding commissions of oyer and terminer in other parts of England by virtue of 7 Vict. c. 2. But it is necessary to trace the course by which the courts of general jurisdiction in the Australian colonies came to have authority to exercise the jurisdiction of the Admiral in respect of crimes committed on the high seas. (at p227)

60. It was early felt in the colony of New South Wales that there should be a Supreme Court with power to try crimes, principally thought of as piracies, murders and conspiracies, committed on the high seas, particularly in the Pacific and the Tasman. Accordingly, an exceptional course was taken by s. 4 of 9 Geo. IV c. 83, by enacting that the Supreme Courts of New South Wales and of Van Diemen's Land, set up by charters under 4 Geo. IV c. 96, should have jurisdiction to hear and determine crimes committed by master or crew of a British ship or by a British subject upon the sea or elsewhere within the jurisdiction of the Admiral or in the islands of New Zealand, Otaheite or any other island in the Indian or Pacific Oceans not subject to the British Throne or to any European power. This jurisdiction was that of the Supreme Court and not merely that of the Admiral exercised by the Supreme Court: but it was clear that the crimes were to be such according to Imperial law and the punishments were fixed by Imperial law. However, this course was not taken in connexion with any other Australian colony. (at p227)

61. Upon the creation of the colony of South Australia legislative power was given to the Governor by and with the advice of the Legislative Council of the colony to "erect, create, constitute and establish" a Court of Judicature. (at p227)

62. Accordingly, by an Act of 1837, 7 Wm IV c. 5, the Supreme Court of the Province of South Australia was created. Its jurisdiction was expressed by s. VII to be "cognizance of all pleas civil criminal and mixed and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as His Majesty's Courts of Kings Bench Common Pleas and Exchequer at Westminster or either of them lawfully have or hath in England". The court was to be at all times a court of oyer and terminer and gaol delivery in and for the Province and its dependencies. It was also made a court of equity and of ecclesiastical jurisdiction. The jurisdiction of oyer and terminer here, in my opinion, was jurisdiction with respect to offences committed within the province. Quite clearly, the Supreme Court was here given none of the jurisdiction of the Admiral instance or criminal. Also, it did not obtain the authority to administer the criminal jurisdiction of the Admiral which was given to the Central Criminal Court in 1834 or to the Judges of Assize under the authority of 7 Vict. c. 2 (1844). (at p228)

63. However, by 12 &13 Vict. c. 96 (1849), the colonial courts with criminal jursidiction were given jurisdiction to try persons charged with criminal acts within the jurisdiction of the Admiral. It is plain from the terms of the Act that the crimes were such as the Admiral could try, that is to say, acts deemed criminal by Imperial law and the punishments were to be those for which that law provided. This Act expressly preserved the special jurisdiction of the Supreme Courts of New South Wales and Van Diemen's Land given by the Act of 1828. The Supreme Court of South Australia thus and to this extent obtained jurisdiction to try British subjects for crimes committed anywhere on the high seas and any person for crimes committed on British ships anywhere on the high seas, not limited in any case to crimes committed in or on British ships in Imperial territorial waters. Incidentally, the passing of this Act makes it clear that a submission by the Crown that a jurisdiction equivalent to that of the Admiral came to the Supreme Court of South Australia by its constitution as a court of oyer and terminer in 1837 is unacceptable. The distinction between the commission of oyer and terminer to try offences committed on the land and the commission of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiral is also plainly seen in the terms in which s. 1 of the Act of 1844 is expressed. I need not further deal with that submission. (at p228)

64. In 1874 the Imperial Parliament passed an Act 37 &38 Vict. c. 27 "to regulate the Sentences imposed by Colonial Courts where jurisdiction to try is conferred by Imperial Acts". Its preamble is in the following terms:

"WHEREAS by certain Acts of Parliament jurisdiction is conferred on courts in Her Majesty's colonies to try persons charged with certain crimes or offences, and doubts have arisen as to the proper sentences to be imposed upon conviction of such persons; and it is expedient to remove such doubts."

Its operative provision, s. 3, provided: "3. When, by virtue of any Act of Parliament now or hereafter to be passed, a person is tried in a court of any colony for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court, or if committed within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwithstanding: Provided always, that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England." (at p229)

65. It is quite plain from the terms of this section, first, that the crime or offence to which the section relates remains, as under the Act of 1849, a crime or offence by or against Imperial law and, second, that the high seas are wholly outside the territorial limits of the colony. All that the statute did, in my opinion, was to authorize the imposition for an Imperial offence of what I might call the appropriate colonial penalty for a like offence committed within the limits of the colony, or if there should be no like offence under colonial law, the most appropriate English penalty. It was submitted that this Act repealed the Act of 1849 in toto and gave to the colonial court authority to try persons for acts committed on the high seas declared by the colonial legislature to be punishable as crimes or offences. But, in my opinion, such a submission is untenable. After the passing of the Act of 1874 the extra-territorial jurisdiction of the Supreme Court, in my opinion, remained limited to the trial of persons for Imperial offences committed on the high seas. (at p229)

66. The Territorial Waters Jurisdiction Act of 1878 (41 &42 Vict. c. 73) made it clear that the particular offences specified by that Act (s. 4) committed by foreigners within territorial waters were triable within the jurisdiction of the Admiral subject to the certificate or leave mentioned in s. 3 of the Act. Thus the Supreme Court of South Australia obtained jurisdiction with respect to the trial of the said offences committed by foreigners within Imperial territorial waters, not limited of course to waters within a marine league of the coast of South Australia. (at p229)

67. Special provision was made by 23 &24 Vict. c. 122 in 1860 for colonial legislatures to enact that where death resulting from a felonious act committed within the colony should take place on the high seas, a person guilty of the felonious act might be dealt with as if the entire offence, i.e. including the death, had taken place within the colony. The Act is presently of interest only as indicating the limited capacity it was then considered a colonial legislature to have to make acts or events on the high seas criminal and triable in the colony. (at p229)

68. It might here be observed that the views expressed by Lord Halsbury in Macleod v. Attorney-General (N.S.W.) (1891) AC 455, at p 458 in 1891 were founded at least in part on what was said by Parke B. in Jeffrys v. Boosey (1854) 4 HLC 815 (10 ER 814) , a case decided in 1854. (at p230)

69. These Imperial statutes were not repealed or affected by the Colonial Courts of Admiralty Act, 1890 (53 &54 Vict. c. 27) which created or made provision for the creation of colonial courts of Admiralty with a like jurisdiction in Admiralty to that of the High Court in England. (at p230)

70. In 1856 the South Australian Act of 1837 and its amendments were consolidated by The Supreme Court Act, 19 Vict. 1855-1856, No. 31. This Act did not relevently enlarge the jurisdiction of the Supreme Court. It was the jurisdiction of the common law courts at Westminster which was the subject matter of s. 7 of that Act. The jurisdiction of the judges there given was such as was necessary for carrying into effect those common law jurisdictions. (at p230)

71. However, by the Supreme Court Procedure Act (No. 7 of 1866) the Supreme Court was given the powers of the Court of Exchequer on the revenue side and by the Supreme Court Act (No. 8 of 1867) s. 27, the Supreme Court "on the Crown side" was given a like jurisdiction in the colony to that which the Queens Bench at Westminster had on the Crown side and the Chief Justice and Judges of the Supreme Court were given the like jurisdiction, power and authority in the Supreme Court on its Crown side as the Chief Justice and the Judges of the Queens Bench had on the Crown side. (at p230)

72. The passage of the 1867 Act was evidently prompted by the controversy as to the powers of the Supreme Court to issue the prerogative judicial writ of scire facias which was a central point in the case of Reg. v. Hughes (1866) 1 SALR (Appendix) 143 decided in the Supreme Court of South Australia in August 1864 and in the Judicial Committee in February 1866. The Act, by its reference to "the Crown side" was evidently concerned to confirm the power of the Supreme Court and its judges to issue prerogative writs in connexion with matters occurring within the colony. (at p230)

73. I have not found, nor have I been referred to, any statute of South Australia the terms of which are the equivalent of a grant of jurisdiction to the Supreme Court to try persons for acts done on the high seas which if done on the land would offend provisions of the local law. Nor is there an Act of an extra-territorial nature which makes acts on the high seas offences against the local law punishable by the Supreme Court. I refer to the high seas, for in this connexion there is no significance in the territorial seas. A law of the former kind would be necessary, in my opinion, to create the general jurisdiction in the Supreme Court of South Australia which the Crown claims the Supreme Court of the Northern Territory to have. (at p231)

74. The situation therefore at the time of federation was that by virtue of Imperial law the Supreme Court of South Australia had jurisdiction to try Imperial crimes and offences, which included common law offences such as murder and manslaughter, committed anywhere on the high seas by British subjects, by any persons anywhere on British ships on the high seas and by any persons on any ship in Imperial teritorial waters, and to inflict what I have called appropriate colonial punishments therefor. Without repetition, I include in the high seas all those places where the Admiral had jurisdiction. But it had no jurisdiction to try persons for acts done on the high seas of a kind which had only been made criminal in South Australia by South Australian statute. (at p231)

75. As I have indicated, I am not here concerned with the extent of colonial legislative power to enact laws having extra-territorial effect, including the power to create offences as incidental to such laws and their execution, and to give jurisdiction to courts to try persons for such offences. Having regard to the decision in Croft v. Dunphy (1933) AC 156 , such a legislative power exercised for the peace, order and good government of the colony may be held to exist. But a particular exercise of such a power, including the vesting of jurisdiction in the Supreme Court to try offences against such laws does not, in my opinion, affect the general jurisdiction of the Supreme Court relevant to s. 15 of the Northern Territory Supreme Court Act 1961-1973. For example, a power to punish offences under a colonial Customs Act committed within a marine league of the coast does not create a general jurisdiction to try persons for all acts done extra-territorially which if done on the land would be offences criminally punishable. To digress to mention an aspect of the invested federal jurisdiction derived from the Judiciary Act, to which I will later refer, the power to punish extra-territorial acts in breach of a colonial customs law does not support the conclusion that for that reason the State court derives jurisdiction from the Judiciary Act to try persons for breaches of the federal Customs Act committed extra-territorially. (at p231)

76. Nothing occurred between 1900 and 1911 to increase the jurisdiction of the Supreme Court of South Australia in any relevant respect. Thus, in my opinion, no general jurisdiction existed in 1911 in South Australia to try persons for acts not being Imperial offences within the jurisdiction of the Admiral and not committed in South Australia, whether as a result of the creation of the Supreme Court or of any colonial legislation giving jurisdiction or as a result of Imperial legislation. (at p232)

77. It is appropriate here to refer to the decision of the Supreme Court of South Australia in Giles v. Tumminello (1963) SASR 96 . A defendant was charged before a magistrate with larceny of some fishing gear contrary to s. 131 of the Criminal Law Consolidation Act 1935-1956 (S.A.) on the high seas some four and a half miles from the coastline of South Australia. It was held that the magistrate had jurisdiction under the Justices Act, 1921-1960 (S.A.) to hear the charge and convict the defendant. (at p232)

78. Upon the argument of a case stated by the magistrate for the opinion of the Supreme Court, it was submitted for the defendant that the only court in South Australia which had jurisdiction to hear and determine the charge, being jurisdiction derived from an Imperial statute, namely 12 &13 Vict. c. 96, was the Supreme Court. The Court did not express "any final opinion upon" that question but saw no reason why, if it were necessary to rely upon that Act, "it should not apply to enable a minor offence to be tried by a court of summary jurisdiction in the manner prescribed by the laws of the State". But the Court expressed the view that "the jurisdiction given to the courts of the province was the jurisdiction of the English courts as it was in 1836, long after crimes committed on the sea had been made justiciable by the courts in England in the ordinary course of the administration of criminal justice, and, as the only venue was South Australia, the ground upon which the jurisdiction was originally restricted to dry land was inappliable". But the distinction between the jurisdiction of the Admiral and that of the courts of common law was fully maintained in England in 1836, and indeed, as I have pointed out, is still maintained. What I have already written would indicate that I consider this conclusion of the Supreme Court to be mistaken. (at p232)

79. It is not possible, in my opinion, to treat the grant of power to exercise the jurisdiction of the Admiral as a grant of jurisdiction to try offences created by the local legislature. The grant of jurisdiction equivalent to that of the common law courts did not itself carry authority to try crimes extra-territorially committed. I am unable to accept the reasoning of the Supreme Court or the conclusion that the Justices Act gave to the magistrate jurisdiction to try persons for acts done on the high seas which, if done in South Australia, would be in breach of the Criminal Law Consolidation Act. In my opinion, Giles v. Tumminello (1963) SASR 96 was not correctly decided. (at p233)

80. I turn now to the question whether the Judiciary Act 1903-1910 gave to the Supreme Court of South Australia a jurisdiction to try persons for acts committed on the high seas in breach of federal law. Again, the discussion does not involve any question of constitutional power to vest such a jurisdiction in State courts. But no specific and express exercise of such an undoubted power has been made in the case of the Supreme Court of South Australia or of the Supreme Court of the Northern Territory. (at p233)

81. Part X of the Judiciary Act deals specifically with the jurisdiction of State courts to try persons for federal offences. To the extent that any effect of the general investiture of jurisdiction by s. 39(2) is not inconsistent with the specific provisions of Pt X, that section is operative to confer jurisdiction on State courts: see Adams v. Cleeve (1935) 53 CLR 185, at p 190 . But s. 68(2) is express in its limitation of the investiture of State courts with respect to the trial and conviction on indictment of persons charged with offences against laws of the Parliament to the trial and conviction of such persons who have committed such offences within the State unless by State law they may be tried in the State for offences committed elsewhere. This last condition refers, in my opinion, to the general jurisdiction of the State courts. As I have already indicated, there is, in my opinion, no such jurisdiction in the Supreme Court of South Australia. In my opinion, s. 39(2) of the Judiciary Act cannot operate to confer upon a State court jurisdiction to try a person for a federal offence not committed within the State. Nothing in Adams v. Cleeve (1935) 53 CLR 185 , in my opinion, lends any colour to such a proposition. That case was concerned with rights of appeal to this Court and in no sense with the jurisdiction of a State court to try a person for a federal offence. To construe s. 39 (2) as giving the State courts jurisdiction to try persons for breaches of Acts of the Parliament not committed within the State would be to make it clearly inconsistent with s.68(2). In my opinion, by no process of construction is such a course warranted. (at p233)

82. But, in any case, s. 39(2) in its express terms accommodates its operation to s. 68(2). It invests the State courts with federal jurisdiction within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise. In my opinion, two matters are basic to the operation of the sub-section. First, there is in my opinion, the fact that the territory of South Australia, offshore islands and water inter fauces apart, is bounded on the south by low water mark of the coast and does not include the sea contained within the three mile limit. Second, the principle that crime is local: the jurisdiction to try a person for crime depends on the commission of all the elements of th crime within the territory. The Imperial Act of 1860 to which I have referred is indicative of the basic principle. (at p234)

83. But where a court exercises the jurisdiction of the Admiral or has the benefit by local legislation of the provisions of the Act of 1860, no particular attention need be paid to questions of jurisdiction in the case of a common law offence wholly or partly committed below low water mark. Thus, in the case of Plomp v. The Queen (1963) 110 CLR 234 , to which reference was made in argument, attention was not paid, and had no need to be paid, to any question of jurisdiction. The crime of murder committed on the high seas is a crime within the cognizance of the Admiral. State Supreme Courts thus can try such a case by virtue of the Imperial Acts to which I have referred. (at p234)

84. Section 39(2) recognizes that there are territorial limits to the jurisdiction of the State courts, including of course the Supreme Courts. In my opinion, in the case of the trial of criminal offences, there is the definite limit to the Supreme Court's jurisdiction, namely, that the offence be committed within the territory of the State. Accordingly, in my opinion, and apart from the clearly express and inconsistent provision of s. 68(2), the Supreme Court of South Australia did not by virtue of s. 39(2) of the Judiciary Act have jurisdiction to try a person for a federal crime not committed in the territory of South Australia. Further, in my opinion, the expression "in relation to" in s. 15 of the Northern Territory Supreme Court Act is used definitively and not merely as a contrasting phrase. It does introduce the territorial limitation of the jurisdiction granted. (at p234)

85. This result is, to my mind, conformable to the public interest and convenience in the prosecution and trial of federal offences. A notable feature of the Judiciary Act is the absence of any general power of remission of a case to some more convenient forum. Consequently, if State courts had jurisdiction to try federal offences committed in another State the power would reside in the executive to choose its own venue: and the court chosen as the place of prosecution would have no means of protecting the accused by the remission of the case to the court of the place where the offence was committed. When, in the Matrimonial Causes Act, 1959-1966, it was found desirable, because of the creation of a national domicile, to vest jurisdiction in all the Supreme Courts of the States to hear petitions, it was necessary to provide a power of remission to avoid injustice: see s. 26(2) of the Matrimonial Causes Act. There is nothing incongruous in the conclusion that in respect of the trial of federal offences, the jurisdiction of the State courts is limited to offences committed within the State in question. (at p235)

86. In my opinion, therefore, the Supreme Court of the Northern Territory had no jurisdiction to try the indictments in this case. (at p235)

87. It is apparent, however, from this discussion and whatever the order of the Court in this case, that there is room for a more specific investiture of State courts with a jurisdiction to try federal offences committed on the high seas. Perhaps some demarcation of an area of those seas might be made so as to correspond in some part with prolongations of the "lateral" boundaries of the States so as to localise any jurisdiction with respect to federal offences committed on the high seas: and in any case a power of remission to a more convenient venue might well be given. Further, the circumstances of this case point up the need for the Parliament to exercise its legislative power under s. 76 (iii) and s. 77 (iii) of the Constitution. It is anomalous that the distinction between the jurisdiction of the Admiral in respect of the high seas and that of the courts of law should be maintained as it is at present. It is highly inconvenient that in a matter of criminal jurisdiction the complexities disclosed in this case should remain. It is also inappropriate at this time that, on the one hand, the power of a court in Australia to try extra-territorial offences should be derived from and be limited by Imperial legislation, and on the other hand, that such a court should have jurisdiction to try persons for Imperial offences committed anywhere on the high seas or where the Admiral has jurisdiction. (at p235)

88. In my opinion, the questions to be answered in the stated case should be answered: 1.(a) No. 2. Unnecessary to answer. 3. Unnecessary to answer. 4.(a) None of the offences, except that with which the master Joseph Corns was charged were capable of being committed in the area between low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof. (at p235)

89. SUMMARY OF INDICTMENT
Count 1
Statement of Offence
Importing prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1) (b) of the Customs Act 1901-1971. Particulars Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on or
about 1st March 1973 near Charles Point did import into Australia prohibited imports namely about 31,000 grams of cannabis.
Count 2
Statement of Offence
Attempt to import prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1) (b) of the said Act. Particulars
Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on or about 1st March 1973 did attempt to import into Australia a prohibited import namely about 31,000 grams of cannabis.
Count 3
Statement of Offence
Possession on a ship of prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1) (a) of the said Act.
Particulars
Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on or about 1st March 1973 near Charles Point did without reasonable excuse have in their possession on board a ship namely the vessel Mariana a prohibited import namely about 31,000 grams of cannabis.
Count 4
Statement of Offence
Possession of prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1) (c) of the said Act.
Particulars
Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on or about 1st March 1973 near Charles Point without reasonable excuse had in their possession prohibited imports namely about 31,000 grams of cannabis which had been imported into Australia in contravention of the said Act.
Count 5
Statement of Offence
Assembling to prevent the seizure of prohibited imports to which s. 231(1) of the Customs Act 1901-1971 applies: contrary to s. 231(1)(c) of the said Act.
Particulars
Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on or about 1st March 1973 did assemble on the vessel Mariana for the purpose of preventing the seizure of a prohibited import namely 31,000 grams of cannabis in contravention of the said Act.
Count 6
Statement of Offence
Importing a prohibited import to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B(1)(d) of the said Act.
Particulars
Gregory James Conn on or about 1st March 1973 did import into Australia a prohibited import namely about 14.8 grams of cannabis resin in contravention of the said Act.
Count 7
Statement of Offence
Attempt to import prohibited imports to which s. 233B of the Customs Act 1901-1971 applies; contrary to s. 233B(1)(b) of the said Act.
Particulars
Gregory James Conn on or about 1st March 1973 did attempt to import into Australia a prohibited import namely about 14.8 grams of cannabis resin.
Count 8

"Of course, the colonies were competent to make laws which operated extra-territorially - that is to say beyond their land margins and in and on the high seas, not limited to the three mile belt of the territorial sea. But this legislative power of the colonies was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony." (at p271)

21. Windeyer J. said that he did not question that State law might regulate off-shore fisheries not,
"because of any right either of sovereignty or property in the open seas or the bed of the sea. It is simply that the State legislature is empowered to make laws for the peace, order and good government of the State; and State here means not merely a territory, but a territory inhabited by people as a political community." (1969) 122 CLR, at pp 224-225 (at p271)

22. Thus the legislatures of Australia might validly legislate for the safeguarding of their customs revenues and might do so by attaching to conduct in their off-shore waters the element of criminality. With this legislative power necessarily went curial jurisdiction. The invested Admiralty jurisdiction would have been of no avail since it was concerned only with offences against English law and unless curial jurisdiction were to accompany the creation of the offences they would be sanctionless, a situation which in Reg. v. Kent Justices: Ex parte Lye (1967) 2 QB 153 , one of the "pirate radio station" cases, Lord Parker has described as involving "merely a declaration of an offence and no possibility of any sanction". In fact the South Australian Act did not require of courts, as did the English legislation in that case, the recognition of any statutory implication of a grant of jurisdiction; express provisions in the South Australian Act conferred jurisdiction upon its courts. Accordingly, at the time of Federation the jurisdiction of the South Australian Supreme Court validly extended to offences committed within "territorial waters" and which were of a nature closely analogous to those of which the present accused have been convicted. (at p272)

23. Upon the enactment of the Customs Act 1901 by the Parliament of the Commonwealth the South Australian customs legislation became inoperative - s. 109 of the Constitution - but this did not put an end to the jurisdiction of the Supreme Court of South Australia in customs matters. By virtue of s. 5 of the Commonwealth of Australia Constitution Act, the Customs Act 1901 became binding upon the South Australian Supreme Court and it expressly conferred jurisdiction upon that Court in respect of "customs prosecutions" - s. 245. Such prosecutions were defined by s. 244 of the Act so as to include proceedings for the recovery of penalties under the Act, and by some of its provisions penalties were imposed in respect of offences which might only be committed at sea, for example, ss. 185 and 228 (2), (3) and (6) (each read in conjunction with the latter part of that section); some customs prosecutions carried as the only prescribed penalty a term of imprisonment - s. 231 and see s. 255(b). (at p272)

24. Thus, without investigating the extent to which other State legislation also conferred jurisdiction upon the Supreme Court of South Australia in respect of offences committed offshore, it sufficiently emerges from customs legislation that both before and after Federation that Court had such jurisdiction. In 1903 s. 39(2) of the Judiciary Act conferred federal jurisdiction generally upon the several Courts of the States "within the limits of their several jurisdictions". By then the Supreme Court of South Australia had long possessed a criminal jurisdiction extending to offences against the customs revenue committed offshore and the invested federal jurisdiction flowing from s. 39(2) accordingly extended, in 1911, to include offences under the Commonwealth customs legislation committed offshore. It is unnecessary, in view of Adams v. Cleeve (1953) 53 CLR 185 , to go beyond s. 39(2) of the Judiciary Act and to consider the effect of s. 68(2) and the federal criminal jurisdiction with which it invests State Supreme Courts. (at p273)

25. Accordingly in my view the Supreme Court of the Northern Territory derived from the terms of s. 15 of the Northern Territory Supreme Court Act jurisdiction to hear and determine the offences of which the accused were convicted. I would answer the questions asked as follows:- 1. (a) - Yes. (b) - Unnecessary to answer. 2. It is within the ordinary jurisdiction of the Court. 3. Unnecessary to answer. 4. (a) Yes. (b) Unnecessary to answer. 5. No. (at p273)

MASON J. I have had the advantage of reading the reasons for judgment prepared by Gibbs J. I agree with the answers which he proposes to the questions of law which have been reserved for the consideration of this Court by the learned trial judge under s. 72 of the Judiciary Act 1903 (Cth) (as amended) and with the orders which he proposes. (at p273)

2. I shall state my reasons for concluding that the Supreme Court of the Northern Territory had jurisdiction to hear and determine the charges upon which the accused were convicted; in other respects I agree with the reasons for judgment prepared by Gibbs J. (at p273)

3. In my view jurisdiction to hear and determine the charges upon which the accused were convicted was conferred by s. 15(1) and (2) of the Northern Territory Supreme Court Act 1961-1966. By sub-s. (1) of s. 15 of the Supreme Court of the Territory was given "in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before" 1st January 1911. By sub-s. (2) this grant of jurisdiction was expressed to include the jurisdiction that the Supreme Court of South Australia had as federal jurisdiction. (at p273)

4. The Supreme Court of South Australia was established by an Act or Ordinance, 7 Wm IV. No. 5, of the Colony (then called "the Province") of South Australia. The original Act or Ordinance and those which amended it were consolidated by Act No. 31 of 1855-1856, assented to on 19th June 1856. By s. 7 of this Act it was provided that the Supreme Court of South Australia,
"shall have cognizance of all pleas, civil, criminal, and mixed, and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as Her Majesty's Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in and for the said Province and its dependencies; and the said Judge so appointed or hereafter to be appointed as aforesaid, shall have and exercise such and the like jurisdiction and authority in this Province and its dependencies as the Judges of the said Courts of King's Bench, Common Pleas, and Exchequer, or any of them lawfully have and exercise, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the said Supreme Court". (at p274)

5. In 1867 additional powers were conferred on the Supreme Court by the statute 31 Vict. No. 8 (S.A.) Section 27 of this Act provided:
"The Supreme Court on the Crown side shall have the like jurisdiction, power, and authority within the said Province as Her Majesty's Court of Queen's Bench in England hath on the Crown side thereof; and the Chief Justice and Judges of the said Supreme Court for the time being shall have the like jurisdiction, power, and authority, in the said Supreme Court, on the Crown side thereof, as the Chief Justice and the Judges of the Court of Queen's Bench have in England on the Crown side thereof . . ." (at p274)

6. The Judiciary Act 1903-1910 (Cth) conferred federal jurisdiction on the Supreme Court of South Australia immediately before 1st January 1911. The relevant provisions were s. 39(2) and s. 68(2). Section 39(2) conferred federal jurisdiction on the several courts of the States "within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise". Section 68(2) provided that the several courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the States should have the like jurisdiction "with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere . . ." (at p274)

7. The Customs Act 1901-1910 (Cth), Pt XIV provided that customs prosecutions might be instituted in the Supreme Courts of the States (s. 245). However, it seems that this provision should not be regarded as vesting jurisdiction in a Supreme Court independently of the provisions of the Judiciary Act. Consequently, the federal jurisdiction of the Supreme Court of South Australia at the relevant time depended on the grant of jurisdiction flowing from the lastmentioned Act. (at p274)

8. This is not the occasion to undertake an exposition of the precise relationship between s. 39(2) and s. 68(2) of the Judiciary Act. For present purposes it is sufficient to say that it has been accepted that the specific provision made in s. 68(2) respecting the conferment of jurisdiction on State courts with respect to persons charged with offences against the laws of the Commonwealth does not displace, in criminal matters, the general grant of federal jurisdiction which flows from s. 39(2). "To exclude its operation upon any part of federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which s. 39 also confers." (Adams v. Cleeve (1935) 53 CLR, at p 190 ). (at p275)

9. The initial question, therefore, is whether federal jurisdiction to hear and determine the offences under the Customs Act of which the accused were convicted was conferred by s. 39(2). On the argument presented on behalf of the accused the answer to that question turns on the limits (as to locality) which are said to attach to the jurisdiction of the Supreme Court of South Australia under State law, for it was submitted that by virtue of the two South Australian enactments to which I have referred the jurisdiction of the Supreme Court was limited to the hearing and determination of offences committed within the territorial boundaries of the State which, I shall assume, without so deciding, end at low water mark. (at p275)

10. It is to be observed that the consequence for which the accused's counsel contends stems not from any constitutional impediment in the legislative power of the Commonwealth Parliament under s. 77(iii) of the Constitution to invest a State court with federal jurisdiction to hear and determine offences against laws of the Commonwealth committed outside the confines of the State. It was not suggested that the Commonwealth lacked such a power; indeed, it was conceded that such a power has been asserted in the Fisheries Act 1952 (as amended) and the Pearl Fisheries Act 1952 (as amended), by which a State court has been invested with jurisdiction to hear and determine offences committed outside the boundaries of the State in which the court sits. The want of jurisdiction, if the argument for the accused be correct, is brought about by the manner in which s. 39(2) is expressed and is to that extent a self-inflicted limitation on the investment of federal jurisdiction. (at p275)

11. Whether the grant of criminal jurisdiction to the Supreme Court of South Australia was initially limited to the hearing and determination of offences committed on land depends on the terms of s. 7 of Act No. 31 of 1855-1856 and s. 27 of the Act 31 Vict. No. 8. It is said that these sections did no more than vest in the Supreme Court the same jurisdiction as that possessed by the common law courts of Westminster, in particular that possessed by the Court of Queen's Bench, and that Reg. v. Keyn (1876) 2 Ex D 63 stands as authority for the proposition that the jurisdiction of the common law courts did not extend to the trial of offences committed beyond low water mark. It follows, according to the argument, that the Supreme Court's jurisdiction did not extend to offences committed beyond low water mark. (at p276)

12. The constraint upon the criminal jurisdiction of the common law courts in England was of ancient origin, deriving from the jurisdiction of the Lord High Admiral to try offences upon the high seas. By 1363 it was acknowledged that the Admiral's jurisdiction with respect to offences committed on the high seas was exclusive and that the common law courts did not enjoy concurrent jurisdiction. To safeguard the common law courts against the expanding jurisdiction of the Admiralty two statutes were passed in the reign of Richard II (13 Ric. II c. 5 and 15 Ric. II c. 3) by which the jurisdiction of the Admiralty was restricted to things done upon the sea and in the main streams of great rivers to the seaward side of the bridges. (at p276)

13. The Admiral's jurisdiction extended to treasons, felonies, robberies,murders and confederacies committed in or upon the high seas or in rivers "below bridges where the tide ebbs and flows and where great ships go" (Reg. v. Anderson (1868) LR 1 CCR 161 ). It seems that the jurisdiction was confined to indictable offences. It was said to have its basis in the concept that a ship on the high seas is a floating part of British territory (Reg. v. Anderson (1868) LR 1 CCR, at pp 163, 168 ), although it has been stated more recently that English criminal law applies on British ships because they fall under the protection of Her Majesty with the consequence that all persons aboard, whatever their national status, are subject to her laws (Reg. v. Gordon-Finlayson (1941) 1 KB 171 ). (at p276)

14. By the Offences at Sea Act, 1536 (28 Hen. VIII c. 15) it was provided that all treasons, felonies, robberies, murders and confederacies committed in or upon the sea or in any place where the Admiral had jurisdiction should be heard and determined by "three or four substantial persons" as might be appointed by the King's commission and that the offenders should be tried, convicted and punished before such commissioners as if they had been tried, convicted and punished for offences committed upon the land. In 1799 this Act was extended to the trial of all offences committed on the high seas (39 Geo. III c. 37). (at p277)

15. It became the practice to issue special commissions under the Act of 1536 to try Admiralty offences to the judges of the common law courts. The Central Criminal Court Act of 1834 (4 &5 Wm IV. c. 36) conferred on the judges of that Court the Admiralty jurisdiction previously exercised by special commissioners. Later, in 1844, by 7 &8 Vict. c. 2, s. 1, it was provided that Justices of Assizes or others acting under commissions of oyer and terminer or gaol delivery should have all the powers given by any Act to commissioners of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiral. (at p277)

16. It has been said that the Offences at Sea Act, 1536 "has ultimately produced the simple result that all crimes committed at sea can be tried before any court in England, otherwise competent" (Stephen, History of the Criminal Law of England (1883), vol. II, p. 19). This observation is in accord with the remark of Cockburn C.J. in Reg. v. Keyn (1876) 2 Ex D, at p 169 , when, speaking with reference to the Offences at Sea Act, 1536, he said, "It simply transferred the jurisdiction of the admiral, talem qualem, to the common law courts, to be exercised according to the procedure of the common law". However, in my view Sir William Holdsworth was more accurate when he said that "the indirect result of" the Act was "to transfer the criminal jurisdiction of the Admiralty to the judges of the courts of common law" (History of English Law, vol. I, p. 551). Although 7 &8 Vict. c. 2, s. 4 speaks of the jurisdiction of the Central Criminal Court to try Admiralty offences, the Act of 1536 and the later statutes did not transfer the Admiralty jurisdiction to the common law courts; they did no more than transfer the exercise of the jurisdiction to persons appointed by commission who incidentally happened to be judges of the common law courts, including Justices of Assizes and others who held commissions of oyer and terminer or gaol delivery. (at p277)

17. To overcome delays and difficulties encountered in bringing back offenders to England for trial, statutes were enacted which ultimately had the effect of vesting Admiralty criminal jurisdiction in colonial courts. The Supreme Courts of Calcutta, Madras and Bombay had Admiralty jurisdiction by virtue of the Acts and charters by which they were constituted - see Stephen, History of the Criminal Law of England, vol. II, p. 21, and 33 Geo. III c. 52, s. 156. The Supreme Courts of New South Wales and Van Diemen's Land were given Admiralty jurisdiction by 4 Geo. IV c. 96 (1823) and 9 Geo. IV c. 83 (1828). (at p278)

18. In 1849 a general grant to colonial courts of Admiralty criminal jurusdiction was made by 12 &13 Vict. c. 96. By s. 1 it provided,

"That if any person within any colony shall be charged with the commission of any treason, piracy, felony . . . or other offence, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or if any person charged with the commission of any such offence upon the sea, or in any such haven, river, creek, or place shall be brought for trial to any colony, then and in every such case all Magistrates . . . Judges, Courts . . . in such colony shall . . . exercise the same jurisdiction . . . and they are hereby respectively authorized . . . to institute and carry on all such proceedings for the bringing of such person so charged . . . to trial . . . as by the law of such colony would and ought to have been . . . exercised or instituted and carried on . . . if such offence had been committed, and such person had been charged with having committed the same, upon any waters situate within the limits of any such colony, and within the limits of the local jurisdiction of the courts of criminal justice of such colony."

Section II provided that on conviction a person should be liable to the same penalty as would be prescribed if the offence had been committed and determined in England. The statute applied to the Supreme Court of South Australia on its establishment. In view of its provisions it was no doubt thought unnecessary to include in the constitution of the Supreme Court of South Australia specific provision enabling it to exercise Admiralty jurisdiction. (at p278)

19. However, doubts arose as to the proper sentences to be imposed on offenders brought before colonial courts pursuant to the Act of 1849. To overcome this difficulty the Courts (Colonial) Jurisdiction Act, 1874 (37 &38 Vict. c. 27) was enacted. By s. 3 it provided:
"When, by virtue of any Act of Parliament now or hereafter to be passed, a person is tried in a court of any colony for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court, or if committed within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwithstanding: Provided always, that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England." (at p279)

20. The Act of 1849 had the result, as the Judicial Committee said in Reg. v. Mount (1875) LR 6 PC 283, at p 301 , that "the Imperial Legislature was conferring power upon the colonies to try offences properly cognizable in England, with the consequences which would have attended a trial there". The language of s. I, in referring to offences "committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction", was indistinguishable from the expressions used in the Act of 1536 and the later statutes by which the Admiralty jurisdiction became exercisable by special commissions and later by the judges of the common law courts. This circumstance, taken together with the short title to the Act, by which it was described as "An Act to provide for the Prosecution and Trial in Her Majesty's Colonies of Offences committed within the jurisdiction of the Admiralty", made it inevitable, to use the words of the Judicial Committee in Mount's Case (1875) LR 6 PC 283 , that the Act was one "conferring Admiralty jurisdiction on the colonies". (at p279)

21. I am unable to give any different character to the Act of 1874. Its sole purpose was, as its preamble indicates, to remove doubts as to the proper sentence to be imposed on conviction in cases where jurisdiction to try the offence was conferred by Imperial Acts of Parliament and it substituted the penalties prescribed by colonial law for those prescribed by English law. It did not purport to confer a new jurisdiction on colonial courts; it prescribed the penalties to be imposed in cases in which colonial courts were exercising jurisdiction conferred by other Imperial Acts. The Acts referred to plainly included the Act of 1849 which conferred a jurisdiction to try offences against English, not colonial law. (at p279)

22. The jurisdiction of colonial courts was extended to include the hearing and determination of offences committed on the open sea within the territorial waters of a colony by the Territorial Waters Jurisdiction Act, 1878 but, again, its operation was confined to offences against "the law of England for the time being in force" - see definition of "offence" in s. 4. (at p279)

23. In the light of the statutory provisions I conclude that by 1867 neither the Courts of Queen's Bench, Common Pleas and Exchequer at Westminster, nor the judges of the Court of Queen's Bench in virtue of their office, as distinct from the judges at common law, possessed jurisdiction to try Admiralty offences committed beyond low water mark and that, accordingly, such a jurisdiction was not vested in the Supreme Court of South Australia by the two South Australian Acts, assuming the coastal boundary of the Colony to have been coincident with low water mark. Likewise, I am of opinion that the Acts of 1849 and 1874 did not confer on the Supreme Court jurisdiction to try offences against colonial law committed at sea. However, these conclusions do not dispose of the issue of jurisdiction, for it is necessary to ascertain whether a jurisdiction to try offences committed beyond low water mark was entrusted to the Supreme Court by South Australian law before 1st January 1911. (at p280)

24. It is beyond question that a doctrine of extra-territorial legislative incompetence was thought to apply to colonial legislatures in the nineteenth century. It found its clearest expression in Macleod v. Attorney-General (N.S.W.) (1891) AC 455 . However, in so far as the reasoning in Macleod's Case rests upon the doctrine of extra-territorial incompetence, as distinct from a principle of statutory construction, its authority is qualified by the decision and the reasoning in Croft v. Dunphy (1933) AC 156 . (at p280)

25. That decision related to a Customs Act enacted by the Parliament of the Dominion of Canada, not to an enactment of a colonial legislature. Nevertheless, the decision did not turn on the Statute of Westminster, 1931 and the reasoning is applicable to colonial legislatures having plenary powers of legislation for the peace, order and good government of a colony (Bonser v. La Macchia (1969) 122 CLR, at pp 189, 225 ). The judgment delivered by Lord Macmillan calls in aid the well-known observations made in Reg. v. Burah (1878) 3 App Cas 889 and Hodge v. The Queen (1883) 9 App Cas 117, at p 132 , in connexion with the grant of plenary powers of legislation. In these cases the Judicial Committee was dealing with statutes of the Indian Legislature and the Legislature of Ontario, neither of which was regarded as possessing full sovereignty in the sense in which this expression has been applied to the Dominions. The approach taken was to pose the question whether the legislation was within the power conferred. The statement that, once the legislation is seen to fall within the grant of power, "their Lordships see no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully Sovereign State" is not, I think, to be taken as indicating that the approach taken is inappropriate to States and Colonies. Croft v. Dunphy (1933) AC 156 itself indicates that there is a sufficient nexus between the provisions in customs legislation applying to ships beyond territorial waters and the peace, order and good government of a territory to bring it within a general grant of legislative power so expressed. The decision did not turn on the circumstance that the relevant head of legislative power was specific, not general. (at p281)

26. Even in the nineteenth century, long before Croft v. Dunphy, the doctrine of extra-territorial incompetence was not regarded as an impediment to the operation of colonial legislation in territorial waters surrounding a colony. Professor O'Connell in his chapter "Australian Coastal Jurisdiction" in International Law in Australia, pp. 272-279, refers to opinions of the Law Offices and the Instructions to the Governor of Western Australia in 1888 which make it clear that the British Government considered that colonial legislation, otherwise valid, had an operation in the territorial waters of a colony. The Instructions to the Governor of Western Australia contained the following statement:
"To state the position briefly, this Act, like any other colonial law, cannot be applied more than three miles from the coast, and if it is necessary to regulate the Pearl Shell Fishery as carried on beyond that limit, it will be necessary to have recourse to the Federal Council." (at p281)

27. There are strong grounds for thinking that s. 15 of the Federal Council of Australasia Act of 1885 proceeded on this view, conceding to the colonies a power to apply their legislation in territorial waters. It enabled the Council to legislate in respect of fisheries and the custody of offenders on board ships belonging to colonial governments "beyond territorial limits" (s. 15(c) and (g)), an expression which in the context may well have signified the outer margin of territorial waters (see Bonser v. La Macchia (1969) 122 CLR, at pp 191-192, 203 ). (at p281)

28. Quick and Garran state:
"Upon its (i.e. a British ship's) entry into the territorial waters, that is within the three mile limit of any colony, say Western Australia, it still remained subject to British Merchant Shipping Acts, but in addition thereto it became subject to the local laws of Western Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not contrary to British Merchant Shipping Acts. On leaving the ports of Western Australia and passing beyond the three mile limit, the British ship ceased to be subject to West Australian laws, and became once more subject only to Imperial laws." (Annotated Constitution of the Australian Commonwealth, p. 360.) (at p282)

29. The view seems to have had its origin in the principles of international law and the recognition which it accorded to the operation of the legislation of the coastal State throughout the territorial sea. However, the origin of the view is not of present importance; what is significant is that it was acknowledged that colonial legislation had an application in territorial waters. (at p282)

30. Granted that the legislature of a colony, having power to legislate for the peace, order and good government of the colony, could make laws having an application in territorial waters surrounding the colony, the inevitable consequence is that the legislature could also vest in the courts of the colony a jurisdiction to hear and determine offences committed against those laws by persons brought before the courts of the colony. The existence of the traditional jurisdiction in Admiralty in connexion with offences committed on the high seas (including territorial waters) in my opinion constituted no bar to a colonial legislature vesting such a jurisdiction in its own courts. (at p282)

31. The general grant of legislative power to the Australian Colonies included power to enact customs legislation. In the exercise of that power Customs Acts and Customs Tariff Acts were enacted. The Customs Acts, following the English model, contained provisions having an application to British ships within territorial waters. These provisions, if not observed, gave rise to criminal offences. It is, I think, beyond question that these Acts were, and were always regarded as, valid laws and that they did not contravene the so-called doctrine of extra-territorial legislative incompetence. (at p282)

32. The Customs Act, 1864 (S.A.) contained a number of provisions expressed to have, or necessarily having, an application within territorial waters (see ss. 160, 161, 162, 167, 168, 170, 171 and 185). Non-compliance with many of these provisions rendered the offender liable to forfeiture of property, or penalty. Indeed, s. 10 of the Act provided:

"The provisions of this Act shall include and extend to the limits of the said Province and the waters thereof, and one nautical league seaward from highwater-mark on the coast of the said Province."

Jurisdiction in respect of offences under the Act (which were, it seems, summary offences) was conferred on the Supreme Court - see ss. 211, 212 and 217. Thus the Act created a jurisdiction in the Supreme Court to deal with offences committed in territorial waters, subject to the qualification that s. 10 refers to nautical league from "highwater-mark", the jurisdiction thus conferred being additional to that which the Court possessed under the Acts of 1855-1856 and 1867. These Acts did not constitute any bar to the conferment of additional jurisdiction on the Supreme Court by other Acts of the South Australian Legislature. (at p283)

33. Nor did the Act of 1855-1856 prevent the vesting in the Supreme Court of an ordinary (that is, a non-Admiralty) jurisdiction with respect to offences committed beyond low water mark. And in my view the Act of 1864 should not be regarded as conferring Admiralty jurisdiction; it was not expressed to involve any transfer of jurisdiction otherwise invested in the Admiralty Court. (at p283)

34. The Customs Act, 1864 was not repealed by the Parliament of South Australia until 1934. It did not impose duties of customs and it was not repealed by s. 90 of the Constitution. In my opinion it continued in force until 4th October 1901 when it was rendered inoperative under s. 109 of the Constitution by inconsistent Commonwealth legislation in the form of the Customs Act 1901 (Cth). That Act gave jurisdiction in respect of customs prosecutions to the Supreme Courts of the States as well as the High Court before the enactment of the Judiciary Act 1903 (s. 245). Although it may be doubted whether the expression "Customs Prosecutions" included prosecutions proceedings by way of indictment (see s. 244, cf. s. 254(2)), s. 245 conferred jurisdiction in respect of summary proceedings for the punishment of offences against the Act. Subsequently the jurisdiction formed part of the general jurisdiction conferred by the Judiciary Act on the conditions set out in s. 39(2). It is of no moment that the jurisdiction of the Supreme Court to deal with offences committed in territorial waters may have been limited to offences triable summarily: what is of importance is that the suggested limitation on the Court's jurisdiction, viz. a lack of jurisdiction to deal with offences committed in territorial waters, had no foundation. (at p283)

35. In the result, therefore, I am of opinion that immediately before 1st January 1911 the Supreme Court was not without jurisdiction to hear and determine offences committed in territorial waters. (at p283)

Orders

Reserved points of law answered as follows:
1. Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment
(a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof
(b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.
Answer: (a) Yes.
(b) Unnecessary to answer.
2. If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty.
Answer: Within the ordinary jurisdiction of the Court.
3. If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting.
Answer: Unnecessary to answer. 4. Does the Customs Act 1901-1971 extend to the said offences
(a) if they were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof
(b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.
Answer: (a) Yes as to offences under ss. 233B (1)(a) and 231(1)(c); unnecessary to answer as to other offences. (b) Unnecessary to answer.
5. If prohibited imports are voluntarily brought from a point outside a line three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971. Answer: No.
Verdicts against the four accused on counts 1, 6 and 11 of the indictment set aside, and in lieu thereof enter verdicts of "Not Guilty". Matter remitted to the Supreme Court of the Northern Territory for judgment.