Raptis (A) & Son v South Australia

[1977] HCA 36

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

RAPTIS (A.) &SON v. SOUTH AUSTRALIA

(1977) 138 CLR 346

27 June 1977

Fisheries—Constitutional Law (Cth)—Constitutional Law (S.A.)

Fisheries—Regulation—Australian waters—Proclaimed waters—Proclamation—Waters not within territorial limits of a State—Powers of State Parliaments—Investigator Strait—Whether beyond territorial limits of South Australia—The Constitution (63 &64 Vict. c. 12), s. 51 (x.). Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—State law requiring licence to fish in certain waters not within territorial limits of State—Commonwealth law requiring licence to fish in waters beyond territorial limits of a State—Whether inconsistency—The Constitution (63 &64 Vict. c. 12), s. 109—Fisheries Act, 1971 (S.A.), ss. 5 (2), 29 (1), 42—Off-shore Waters (Application of Laws) Act, 1976 (S.A.), ss. 3, 4—Fisheries Act 1952 (Cth), ss. 7, 12. Constitutional Law (S.A.)—Seaward boundaries of State—Legislative power over contiguous sea—Territorial Waters—Whether Gulf of St. Vincent, Spencer Gulf and Investigator Strait part of territory of South Australia—Statute 4 &5 Will. IV c. 95 (Imp.)—Letters Patent of 19th February 1836 establishing Province of South Australia—Fisheries Act, 1971 (S.A.), ss. 5 (2), 29 (1), 42—Off-shore Waters (Application of Laws) Act, 1976 (S.A.), ss. 3, 4.

Decisions

1977, June 27.
The following written judgments were delivered:-
BARWICK C.J. The plaintiff claims that the seizure by the defendant State of prawns obtained by it in Investigator Strait, more than three miles from either of its shores, and outside a line drawn from Troubridge Point to Cape Jervis, was unlawful. It held from the Commonwealth a licence under the Fisheries Act 1952 (Cth), as amended, to take prawns from an area which included the place in Investigator Strait from which the seized prawns were taken, but it did not hold a licence under the Fisheries Act, 1971-1975 (S.A.), which purported to operate in, amongst other areas, the whole area of Investigator Strait. The plaintiff also seeks a declaration that, having the licence of the Commonwealth in that behalf, it is entitled to take prawns as well in all the waters of the Gulf of St Vincent, Spencer Gulf and Backstairs Passage. (at p352)

2. The principal question between the parties, and in respect of which the Commonwealth and certain States intervened in the litigation, was, broadly speaking, whether the boundaries of the former colony, now the State of South Australia, include all the waters of Investigator Strait, as well as those of the two gulfs or whether the respective closing lines of the two gulfs formed the relevant part of that boundary of the State. (at p352)

3. The question is to be answered, in my opinion, exclusively by the construction of the statutory instruments by or by virtue of which the Province of South Australia was constituted in 1836. The various historical circumstances which may be thought to bear on that construction are mentioned in the reasons for judgment of my brother Stephen. These have had my consideration but, in the long run, I have become convinced upon the proper construction of these statutory instruments that the waters of the two gulfs within closing lines conventionally drawn were included in the area which was placed by the British Executive under government of the Province of South Australia. The inclusion of the word "Gulfs" in the constating formula was unique in Australian colonial history, and the geographical prominence of the two gulfs in relation to the land lying between the designated degrees of longitude seem to me to admit of no other conclusion than that it was intended by the constating description to include the waters of those two gulfs in the new colony. An important circumstance, in my opinion, is that both Flinders in his account of the discoveries of the "Investigator" and Baudin in the publication edited by Peron and de Freycinet, Voyage de Decouvertes aux Terres Australes 1807-1814, named the indentations as two gulfs, though each assigned different names to them. This explains to my mind the unusual reference to gulfs in the statute of 1834 and the letters patent of 1836. It is appropriate here to mention that both Flinders and Baudin differentiate between the gulfs, Investigator Strait, Kangaroo Island and the passage called Backstairs by Flinders and Colbert by Baudin. (at p352)

4. The reference to gulfs, to Kangaroo Island specifically as such and the existence of such a navigable waterway as the Backstairs Passage all point, and in my opinion conclusively to the inclusion in the territories to form part of the colony of two gulfs and Kangaroo Island as an offshore island. (at p353)

5. The closing line of Spencer Gulf runs, in my opinion, from Cape Catastrophe to Cape Spencer and that of St Vincent's Gulf from Troubridge Point to Cape Jervis. Thus, waters northward of that line form, in my opinion, part of the State of South Australia. (at p353)

6. That State, however, claimed that all the waters within a line drawn from Cape Catastrophe to Cape Borda, the northern shore of Kangaroo Island and a line drawn from Cape Jervis to Cape Willoughby formed part of the State. This was a claim, in substance, that Kangaroo Island was part of the closure of a gulf which included the waters of Investigator Strait as well as those of St Vincent's Gulf. It was in reality a claim though not so expressed that there was only one gulf with an internal division formed by the Yorke Peninsula. In this connexion, references to considerations of international law were made by the State. But the instant question is not to be decided, in my opinion, by any considerations of international law or by the opinion of courts, tribunals or writers in that area. The problem is the identification of what falls within the description of the statutory instruments of 1834 and 1836. (at p353)

7. In my opinion, the place from which the seized prawns were taken was not part of the territory of South Australia but part of the high seas. No question of territorial waters, their local or consequence arises in this case. The taking of prawns from this area was within the jurisdiction of the Commonwealth and regulated by the Fisheries Act 1952 (Cth) and licences granted thereunder. Assuming the Fisheries Act, 1971-1975 (S.A.) to purport to control, amongst other things, the taking of prawns in the area from which the seized prawns were in fact taken, it would be inoperative by reason of its inconsistency with the Commonwealth statute. It follows, in my opinion, that the seizure of the prawns by the State of South Australia was unlawful. The plaintiff is entitled to judgment on that part of his claim, the amount of damages to be ascertained in the further prosecution of the proceedings in the Supreme Court of South Australia. (at p353)

8. I would add that I am in agreement with the reasons prepared by my brother Stephen which I have had the advantage of reading. My preference for placing my conclusion on the circumstances I have detailed does not mean that I do not accept the cogency of the various considerations to which my brother properly calls attention. (at p353)

9. I also agree with my brother's conclusion that the Court should refuse to make the declaration sought by the plaintiff. I share my brother's reasons for that conclusion and do not desire to add anything to them. (at p354)

GIBBS J. The plaintiff, a partnership of companies, carries on the business of fishing for prawns. Its boats fish the waters off the coasts of South Australia. On three occasions in the month of April 1976 the plaintiff's servants and agents made catches of prawns in the waters of Investigator Strait at a distance of more than three miles from the shore. Those prawns were later seized in Port Adelaide by agents of the State of South Australia acting in intended exercise of the powers conferred by ss. 12 (4) and 63 of the Fisheries Act, 1971-1975 (S.A.) ("the State Act"). Those sections apply when fish are taken in contravention of the State Act. There is no doubt that the prawns, which are "fish" within the meaning of the State Act, were taken by the plaintiff's fishermen in contravention of the State Act, if that Act had a valid and effective operation in relation to the waters where the prawns were caught. Neither the plaintiff, nor the captain of its fishing boat, nor any of the crew, held any licence or permit under the State Act. However, the captain, the members of the crew and the boat itself were licensed under the Fisheries Act 1952 (Cth), as amended ("the Commonwealth Act"). The plaintiff claims that the three seizures in question were unlawful. It makes also the broader claim that whilst it and its servants and agents hold the necessary licences under the Commonwealth Act they are entitled to fish for and catch prawns anywhere in the waters of the Gulf of St Vincent and Spencer Gulf and in the waters to the southward of those gulfs and bounded by a line joining West Point and Cape Borda to the west and by a line joining Newland Head and Cape Willoughby to the east. The last-mentioned waters comprise not only Investigator Strait but Backstairs Passage to the east and part of the Southern Ocean to the south of Spencer Gulf and to the west of Investigator Strait. (at p354)

2. The State Act renders it unlawful for any person to take fish unless he holds a fishing licence (s. 29 (1) ) or a special permit (s. 42). There are exceptions in the case of fish taken otherwise than for the purposes of sale (s. 29 (2) ). Section 5 (2) of the State Act provides as follows:

"Subject to any limitations expressly prescribed in this Act or in any regulation, proclamation or other instrument having effect pursuant to this Act, this Act shall be in force within lands and waters (either inside or beyond the boundaries of the State) to the full extent of the legislative power of the State."

Further, by the Off-shore Waters (Application of Laws) Act, 1976 (S.A.) the laws of the State of South Australia are given an extended application. Speaking broadly, State laws, in the absence of an indication of intention to the contrary, are applied to offshore waters (s. 3); further, and no doubt out of caution, they are given the more limited application in offshore waters to, and in relation to, a person connected with the State or a person who does any act or makes any omission affecting the person or property of a person connected with the State (s. 4). Offshore waters are given a definition which, if it has its full effect, will include all waters lying within 100 nautical miles seaward of so much of the boundaries of the State of South Australia as abut the Southern Ocean. It is unnecessary for present purposes to discuss the power of a State to enact legislation with extra-territorial application. I had occasion to consider that question in Pearce v. Florenca (1976) 135 CLR 507, at pp 513-521 and adhere to what I there said. It is clear, and not I think controverted, that the provisions of the State Act will validly apply to waters as closely connected with South Australia as those of Investigator Strait, even if those waters do not lie within territorial limits. And it is quite beyond controversy that the provisions of the State Act which permit the seizure in South Australia of fish caught in offshore waters in contravention of the State Act are validly enacted. (at p355)

3. The Commonwealth Act applies in relation to "Australian waters", which are defined to mean "Australian waters beyond territorial limits" and certain waters adjacent to a Territory (s. 4). We are concerned not with the latter part of the definition, but with the former, which simply repeats the words of s. 51 (x.) of the Constitution. "Fish" is defined in s. 4 in such a way as to include prawns. By s. 7 of the Commonwealth Act the Governor-General is given power by proclamation to declare any Australian waters to be proclaimed waters for the purposes of the Commonwealth Act. The Governor-General has in fact made a proclamation declaring all those waters "other than waters that are within the territorial limits of a State or of a Territory of the Commonwealth" contained within an area described in the proclamation, to be proclaimed waters (see Commonwealth Government Gazette of 22nd August 1968). The waters so described will include all the waters in question in the present case if those waters are not within the territorial limits of the State of South Australia. By s. 8 the Minister is given power by notice published in the Gazette to prohibit the taking of fish from proclaimed waters - the proclamation may be general or limited in various ways indicated in the section. Acting under the provisions of s. 8 (1) (d) of the Commonwealth Act the Minister, by Fisheries Notice No. 67 of 12th August 1976 (and published in Australian Government Gazette No. S144 of 17th August 1976), prohibited fishing for prawns or shrimps in an area of proclaimed waters that will include the waters in question if they are proclaimed waters, other than (a) traditional fishing; or (b) fishing that consists of taking, processing or carrying prawns or shrimps with the use of a boat in respect of which there is a licence under s. 9 that, by virtue of an indorsement under s. 9 (4) , extends to authorize that taking, processing or carrying, as the case may be. By s. 9 power is given to the Minister or the Secretary to grant licences to engage in fishing in, or in a specified area of, proclaimed waters (s. 9 (1) ) or authorizing the use of a boat in, or in a specified area of, proclaimed waters for taking fish and for processing and carrying fish (s. 9 (2) and (3) ). Section 9 (4) provides that where a licence granted under s. 9 authorizes the use of a boat for a purpose in an area of proclaimed waters that includes an area of waters to which a notice under s. 8 (1) (d) applies, the Minister or the Secretary may indorse the licence so as to extend it to authorize the use of the boat for that purpose in the area of waters to which the notice applies in respect of fish to which the notice applies. The licences issued in respect of the boats used by the plaintiff's fishermen have not been indorsed under s. 9 (4), and have not, since Fisheries Notice No. 67 took effect, authorized the plaintiff's fishermen to use the boats to fish for prawns in the waters in question. Fish taken in contravention of the Commonwealth Act are liable to seizure (s. 10 (c)). It is an offence in an area of proclaimed waters for a person to engage in fishing unless he is the holder of a licence under s. 9 (1) or for a person to use a boat for (inter alia) taking fish unless he is, or is acting on behalf of someone who is, the holder of a licence under s. 9 (2) authorizing the use of the boat in that area for taking fish (s. 13 (1) (a), (b)). Where a court convicts a person of an offence against s. 13 it may order the forfeiture of fish on board a boat used in the commission of the offence at the time the offence was committed or the proceeds of the sale of any such fish (s. 13C (1) (b), (c)). By s. 5A of the Commonwealth Act it is provided as follows:

"This Act or any other law of the Commonwealth shall not be taken to exclude the operation of a law of a State or of a Territory in so far as that law of a State or Territory relates to the licensing of persons to use premises for the preparation, processing, storage or examination of fish." (at p357)

4. It was held in Bonser v. La Macchia (1969) 122 CLR 177 by the majority of the Court that the Parliament of the Commonwealth has no power under s. 51 (x.) of the Constitution to make laws with respect to fisheries within three nautical miles of the coast of an Australian State. Nothing in New South Wales v. The Commonwealth (the Seas and Submerged Lands Case) (1975) 135 CLR 337 makes it necessary to re-examine that decision. Indeed, the reasoning of BARWICK C.J. in Bonser v. La Macchia plainly shows that the two decisions may be reconciled. If the waters off the coasts of South Australia that are in question in the present case form part of the territory of South Australia, the Commonwealth Act cannot validly apply to them and does not attempt to do so. If, however those waters are not part of the territory of South Australia, the Commonwealth Act will validly apply to them. In that event there will, in my opinion, be an inconsistency between the State Act in its application to those waters and the Commonwealth Act. The State Act forbids any person to take fish unless he holds a licence under the State Act. The Commonwealth Act forbids any person to engage in fishing unless he holds a licence under the Commonwealth Act. It is of course possible to obey both laws without disobeying either, by obtaining the licences necessary under both Acts, but since Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466 that has not been the test of the inconsistency of the two laws. The test that since that case has come to be accepted was stated by Dixon J. in Ex parte McLean as follows (1930) 43 CLR 472, at p 483 :

"When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and s. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse... But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere coexistence of the two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter."

It is unnecessary to examine in full detail the provisions of the two Acts in question in the present case. It is clear that the relevant provisions of both Acts have the same purpose - the regulation of fishing. In so far as the Acts apply to the same waters, they legislate upon the same subject and each prescribes what the rule of conduct shall be. There is nothing in the Commonwealth Act that suggests that it was intended that its provisions, so far as they relate to fishing, were intended to be supplementary to, or cumulative upon, State legislation. On the contrary, s. 5A of the Commonwealth Act indicates that it was intended that the Commonwealth Act should exclude the operation of State law on the same subject matter except in so far as such law relates to the licensing of persons to use premises for the preparation, processing, storage or examination of fish. On the assumption that the waters in question are not within the territory of the State, the provisions of the State Act, in so far as they apply to those waters, are inconsistent with the provisions of the Commonwealth Act and are to that extent inoperative. On that assumption the present is a clearer case of inconsistency than O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565 . (at p358)

5. In Bonser v. La Macchia (1969) 122 CLR, at pp 192-193 , Barwick C.J. pointed out that the exclusion of the first three nautical miles of coastal water from the Commonwealth legislative power with regard to fisheries is "pregnant with practical difficulties particularly if there is at any time any diversity between Commonwealth and State laws with respect to fishing on the high seas". The regulation of fishing off the coast of a State is a subject that would appear to demand to be dealt with by complementary, rather than conflicting, legislation. It seems absurd to treat fishing grounds as divided by an artificial boundary on either side of which different laws apply and different authorities prevail. It is hardly possible to imagine a sphere of government in which co-operation between the Commonwealth and the States in the exercise of their respective powers is more necessary in the public interest. However, the question whether in the present case the three catches of prawns were lawfully seized depends on whether they were caught within the territorial waters of South Australia. If they were, the Commonwealth Act does not apply and the prawns were taken in contravention of the State Act. If they were not, the Commonwealth Act applies, the State Act is pro tanto inoperative, the prawns were not taken in contravention of its provisions and the seizure was unlawful. (at p359)

6. The Province of South Australia was established, and its boundaries were fixed, by letters patent passed under the Great Seal of the United Kingdom and dated 19th February 1836 as follows:

"On the North the twenty-sixth degree of South Latitude - On the South the Southern Ocean - On the West the one hundred and thirty-second decree of East Longitude - And On the East the one hundred and forty-first degree of East Longitude including therein all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said Province."

The letters patent were issued under an Act of 1834, 4 &5 Will. IV c. 95, which authorized His Majesty in Council to establish one or more Provinces "within that Part of Australia which lies between the Meridians of the One hundred and thirty-second and One hundred and forty-first Degrees of East Longitude, and between the Southern Ocean and the Twenty-six Degrees of South Latitude, together with all and every the Islands adjacent thereto, and the Bays and Gulfs thereof". There cannot in my opinion be the slightest doubt that the waters of the bays and gulfs of the southern coast of South Australia were included within the Province - that is, they became part of its territory. The words of the statute and of the letters patent are in this respect plain and unambiguous. It is impossible to construe the reference to "Bays and Gulfs" as meaning no more than that the shores of the bays and gulfs form the boundaries of the Province. If that had been intended, it would have been unnecessary to make particular mention of bays and gulfs. The territory of South Australia was later extended, but the southern boundary of the colony remained unaffected. Subsequent letters patent constituting the office of Governor in describing the boundaries of the colony used the phrase "including all and every the gulfs, bays, creeks, rivers, and islands (including Kangaroo Island), adjacent to any part of the mainland within the limits aforesaid". In those letters patent it was obvious that the gulfs, bays, creeks and rivers were intended to be described as part of the colony. The southern boundary of the Province as established in 1836 remained unaltered at Federation and became the boundary of the State of South Australia. (at p359)

7. In my opinion, the effect of the letters patent of 1836 was that the bays and gulfs on the south coast of South Australia became part of the territory of South Australia whether or not they would have been regarded by the rules of the common law or the rules of international law as forming part of that territory. It lies within the prerogative power of the Crown to extend its territory on land or at sea, and the acquisition of territory by the Crown is an act of state which cannot be challenged in the courts. I have already discussed this question in the Seas and Submerged Lands Case (1975) 135 CLR, at pp 387-388 and need not repeat the reference to authority that I there gave. A fortiori if a statute declares land or water to be territory of the Crown, that declaration is conclusive so far as the courts are concerned: Direct United States Cable Co. Ltd. v. Anglo-American Telegraph Co. Ltd. (1877) 2 App Cas 394, at p 420 . In the present case the bays and gulfs were included in the territory of the Province by the express provisions of the letters patent, which were themselves expressly authorized by 4 &5 Will. IV c.95. There is nothing in the statute or in the letters patent to afford any support for the view that the words "the Bays and Gulfs thereof" are to be given a restricted meaning, so that they refer only to bays and gulfs that would have been treated as part of the territory by the rules of common law or of international law. Indeed, the fact that those rules were, in the first half of the nineteenth century at least, unsettled and imprecise may itself have provided the reason why the Act and the letters patent expressly included bays and gulfs in the territory of the new Province. The authorities of the day may well have been disinclined to allow it to remain uncertain whether the bays and gulfs of South Australia, which, from their geographical situation and from the fact that the first settlement was intended to be made upon their shores, were likely to be of great importance to the new Province, should form part of its territory. However that may be, the words of the letters patent are plain and unambiguous - they include in the territory of South Australia any waters which may properly be regarded as the waters of a bay or gulf on the coast of South Australia. (at p360)

8. The question that then falls for consideration in the present case is what waters form part of Spencer Gulf and the Gulf of St Vincent or, in other words, what are the lines marking the respective entrances to those gulfs? It is unnecessary for present purposes to attempt to distinguish between bays and gulfs. Both are indentations of the sea into the land. "The distinction between gulf and bay is not always clearly marked, but in general a bay is wider in proportion to its amount of recession than a gulf; the latter term is applied to long landlocked portions of sea opening through a strait, which are never called bays": see Oxford English Dictionary, "gulf", and Stamp, Glossary of Geographical Terms, 2nd ed. (1966), "gulf". This suggested distinction is by no means consistently drawn in naming bays and gulfs, but since both bays and gulfs are included in the territory of South Australia it is immaterial whether any particular indentation is a bay or a gulf. In deciding whether any particular stretch of water forms part of a bay or gulf both geographical and historical considerations have to be regarded (cf. People v. Stralla (1939) 14 Cal 2d 614 (96 P 2d 941) ). It is first necessary to consider the configuration of the coast with a view to deciding what features would naturally mark the entrance to the indentation. This is a matter on which the opinions of geographers and cartographers are entitled to due weight. Further, it will be relevant and important if at the date of the statute and letters patent the bay or gulf was commonly understood to extend over a particular area, for it may be assumed, in the absence of any indication to the contrary, that the portion of the sea intended to be embraced by the description of bays and gulfs was that which in common understanding was included within them. (at p361)

9. A study of the configuration of the coastline makes it clear that, if points on the mainland only are taken, the entrance points of Spencer Gulf will be in the vicinity of Cape Catastrophe on the west and Cape Spencer on the east, and those of the Gulf of St Vincent will be in the vicinity of Troubridge Point on the west and Cape Jervis on the east. The waters shoreward of those closing lines will, on the narrowest possible view, form part of the territory of South Australia. The distance from Cape Catastrophe to Cape Spencer is about fifty miles and Spencer Gulf extends some two hundred miles north-eastward from that line into the interior of South Australia. From Troubridge Point to Cape Jervis is about thirty-two miles, and the Gulf of St Vincent extends about one hundred miles inland of that point. (I should say immediately that in stating distances I make no pretension to complete accuracy. I should add that the sources from which the distances are obtained state them in miles and I do not find it necessary to convert them to the metric system.) For the reasons already given, I hold that the fact that the distance between these respective points of entrance exceeds six miles or ten miles (or any other distance that might have been thought relevant by the rules of international law) or that it may not be possible to see from one entrance point to another (on any understanding of the ambiguous test evolved by the common law and referred to in Direct United States Cable Co. Ltd. v. Anglo-American Telegraph Co. Ltd. (1877) 2 App Cas, at p 417 ) does not mean that they do not mark the limits of the gulfs. One other possibility, suggested in argument, was that the entrance to the Gulf of St Vincent is marked by Cape Jervis on the east but by Cape Spencer on the west; in other words, that the whole of the southern coastline of Yorke Peninsula forms part of the shores of the gulf, whose waters enclose part, but not all, of the waters of Investigator Strait. This suggestion must in my opinion be rejected. The maps and charts indicate clearly enough that a line from Cape Jervis to Cape Spencer does not mark the entrance of a gulf and this conclusion is supported by the material to which I shall later refer. (at p362)

10. The main argument on behalf of the State of South Australia is that the entrance to one or both gulfs is marked by Cape Borda, the north-western point of Kangaroo Island. On this argument a line from Cape Borda to Cape Catastrophe (or even to Cape Carnot, further west) marks the entrance to one large gulf of which Spencer Gulf and the Gulf of St Vincent are merely arms, or alternatively (and more credibly) a line from Cape Borda to Cape Spencer marks the entrance to the Gulf of St Vincent. Kangaroo Island lies to the south of Yorke Peninsula from which it is separated by Investigator Strait - a body of water of ample depth which extends for a distance of over fifty miles with an average width of about twenty-three miles. The strait is used by vessels plying to and from points in South Australia, and by local vessels, but is not otherwise used as a general maritime highway. Kangaroo Island is one of the largest islands off the Australian coast. It is about ninety miles from east to west in length. It is separated from the mainland, on the east, by Backstairs Passage, a strait which is about seven miles across at its narrowest point and which contains depths of between nine and nineteen fathoms and is navigable by the largest vessels, even if little used by them. The south-west side of the passage is bold and cliffy; the north-eastern side bold and rocky. (at p362)

11. The question whether islands may constitute the natural entrance points of a bay was discussed in United States v. Louisiana (1969) 394 US 11 (22 Law Ed 2d, 44) . The Supreme Court of the United States was there concerned with the application of the Convention on the Territorial Sea and the Contiguous Zone in delimiting the boundary between the submerged gulf lands belonging to the United States and those belonging to Louisiana, but the remarks to which I am about to refer in my opinion may be given a general application, and to gulfs as well as bays. Stewart J. said (1969) 394 US, at pp 62-63 (22 Law Ed 2d, at p 83) that "the general understanding has been - and under the Convention certainly remains - that bays are indentations in the mainland, and that islands off the shore are not headlands but at the most create multiple mouths to the bay. In most instances and on most coasts it is no doubt true that islands would play only that restricted role in the delimitation of bays". He went on, however, to say (1969) 394 US, at p 62, n 83 (22 Law Ed, 2d, at p 83, n 83) that an island may be "so closely aligned with the mainland as realistically to be considered an integral part of it", or in other words (1969) 394 US, at p 66 (22 Law Ed 2d, at p 85) that "the islands may be so closely linked to the mainland as realistically to be assimilated to it". He went on (1969) 394 US, at p 66 (22 Law Ed 2d, at p 85) : "While there is little objective guidance on this question to be found in international law, the question whether a particular island is to be treated as part of the mainland would depend on such factors as its size, its distance from the mainland, the depth and utility of the intervening waters, the shape of the island, and its relationship to the configuration or curvature of the coast." In the case of Kangaroo Island there are no doubt some circumstances that support the view that the island may realistically be regarded as part of the mainland. The island generally conforms to the curvature of the coast and may not unnaturally be regarded as a prolongation of Fleurieu Peninsula. Further, the waters of the straits that wash the northern and eastern shores of the island are most generally used for the purpose of navigation within South Australia and not by interstate or international shipping. On the other hand, the island is large in size and capable of maintaining some population. It is situated at a considerable distance from the mainland, from which it is separated by waters which are deep and navigable. In particular, the width and depth of Backstairs Passage are such as to create a barrier between the island and the mainland which makes it difficult to treat the island as a mere appendage to the shore. Kangaroo Island is in no way comparable with the small and insubstantial islands off the coast of Louisiana which were considered in United States v. Louisiana or with those islands, of which examples may be found in Queensland, that are separated from the mainland by narrow, shifting, sandy bars, and may rightly be regarded as an integral part of the land. On the whole, even without the assistance of the historical and geographical material that is available, I would reach the conclusion that Kangaroo Island cannot be regarded as in effect a part of the mainland and that no point on Kangaroo Island marks the entrance to either or both gulfs. (at p364)

12. The historical and geographical material, which as I have said may properly be regarded, in my opinion is in any case quite conclusive. From the time of the publication of Flinders' Voyage to Terra Australis in 1814 until the present day, geographers and cartographers have been at one in treating Investigator Strait as a separate body of water from that of the two gulfs. When the statute 4 &5 Will. IV c.95 was passed in 1834, not only Flinders' Journal, but the Australia Directory printed for the Hydrographical Office of the Admiralty in 1830, had given a detailed description of the coast of South Australia, and had described Cape Catastrophe and Cape Spencer, and Troubridge Hill and Cape Jervis, respectively, as marking the entrance points of Spencer Gulf and the Gulf of St Vincent. (Troubridge Hill is a few miles west of Troubridge Point.) Early works relating to the proposed new colony, such as Plan of a Company to be established for the purpose of founding a Colony in South Australia (1832) and Colonization of South Australia by Torrens (1835), contained rough maps which, although they did not precisely show the entrance points of the gulfs, clearly indicated that their waters did not comprise Investigator Strait. Maps and charts ever since have consistently indicated that the entrance points of Spencer Gulf are Cape Catastrophe (or thereabouts) and Cape Spencer, and that the entrance points of the Gulf of St Vincent are Troubridge Point (or Troubridge Hill) and Cape Jervis. They are so described in the various volumes of the Australia Pilot published from time to time during the course of this century by the Admiralty. Indeed I have seen no work of geography, and no map or chart, that treats the waters of Investigator Strait as part of the Gulf of St Vincent, rather than as an entrance to it. (at p364)

13. For the reasons I have given, the waters of Spencer Gulf and of the Gulf of St Vincent have as their seaward limits lines which, speaking generally, join Cape Catastrophe and Cape Spencer and Troubridge Point (or Troubridge Hill) and Cape Jervis respectively. The waters to landward of the lines thus roughly indicated form part of the territory of South Australia. I do not think it appropriate to attempt to define with precision the lines that mark the entrances to the gulfs. For example, I would not attempt to decide whether Troubridge Point or Troubridge Hill marks the western point of entrance to the Gulf of St. Vincent or from what exact point on the coast at Cape Spencer or Cape Jervis a closing line should be drawn. There are two reasons why I think that this attempt should not be made. In the first place it is not necessary for the decision of this case to define the seaward boundary of South Australia with complete accuracy. It follows from what I have said that the waters of Investigator Strait where the prawns the subject of the action were seized were not within the territory of South Australia. Further, for reasons which I shall shortly express, the plaintiff should not be granted a declaration in the broad terms which it seeks. A decision that the closing lines are in the general area indicated is therefore enough to dispose of all the issues in the action. Secondly, neither the evidence nor the argument condescended to fine detail. The parties were quite naturally concerned to establish the position of the boundary broadly in one situation or another. If it is to be fixed with exactitude further detailed evidence and consideration would be necessary. It may possibly become material in some future case to determine exactly where the boundary lies but that question should not be decided until it arises. For most practical purposes the indication now given will be sufficient. (at p365)

14. As I have indicated, the plaintiff should not have a declaration that its servants are conditionally entitled to fish for and catch prawns anywhere in the waters outside the closing lines of the gulfs. The plaintiff is not at present entitled to fish for prawns in those waters because its licences are not appropriately indorsed under the Commonwealth Act. We cannot speculate as to whether it will ever obtain the necessary authority under the Commonwealth Act to fish for prawns in those waters. Moreover, there are bays on the northern shore of Kangaroo Island and on the southern shore of Yorke Peninsula within the waters in respect of which the plaintiff seeks a declaration. The waters of those bays form part of the territory of South Australia but their limits have not been discussed in this ease and we cannot define them. (at p365)

15. I would remit the action to the Supreme Court of South Australia so that that Court may refuse declarations (a) and (b) sought by the plaintiff's statement of claim and may proceed to hear and determine so much of the plaintiff's statement of claim and may proceed to hear and determine so much of the plaintiff's claim as relates to the wrongful seizure of the prawns. (at p365)

STEPHEN J. In 1834 Parliament legislated for the colonization of South Australia. His Majesty, on the advice of his Privy Council, might erect and establish, and fix the boundaries of, one or more provinces within that part of Australia bounded on east and west by 132 degrees and 144 degrees of east longitude and lying "between the Southern Ocean and the Twenty-six Degree of South Latitude, together with all and every the Islands adjacent thereto and the Bays and Gulfs thereof". (at p366)

2. Two years later, in exercise of that power, King William IV by letters patent erected and established one province, the Province of South Australia. Its boundaries were fixed by reference to those same four bounds but there was to be included in the Province "all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last mentioned Island or to that part of the mainland of the said Province". (at p366)

3. The first question for this Court is whether or not this express inclusion within the Province of "bays and gulfs" serves to include within the territory of the present State of South Australia those areas of water with which the plaintiff is concerned. The plaintiff is engaged in the commercial harvesting of prawns. Prawns taken by its prawning vessels from waters lying more than three miles off any shore line between Kangaroo Island to the south and Yorke Peninsula to the north have been seized by State Fisheries authorities for want of any State licence to take prawns. In respect of these seizures the plaintiff, which held the appropriate Commonwealth fisheries licences, seeks a declaration that the seizures were wrongful; it also seeks damages. The plaintiff wishes to continue its prawning activities in the waters of St Vincent's Gulf and Spencer Gulf and also in extensive additional areas to the south of these two gulfs including, but by no means limited to, the locations where seizures have already occurred. It accordingly also seeks declarations that, as the holder of relevant fisheries licences issued by the Commonwealth, it is entitled to do so. (at p366)

4. The extent of the territory of the State of South Australia is critical to the plaintiff's position. To the extent that any of the waters in question form a part of that territory the relevant legislation of the State will be applicable and that of the Commonwealth will be inapplicable. Questions either of inconsistency or of the legislative competence of the State or of the Commonwealth will not arise in relation to such waters; any taking of prawns from these waters without appropriate State licences will have been unlawful, as would be any future unlicensed prawning operation which the plaintiff might there contemplate. (at p367)

5. No doubt inland waters of a State form part of its territory, although connected with the ocean; but the physical features of the relevant part of South Australia, involving wide expanses of arms of the sea and their seaward approaches, ensure that little of the waters here in question are, in any ordinary sense of the term, inland waters. The broad reaches of water where the seized prawns were taken would not answer that description, nor would much of the remaining areas from which the plaintiff proposes to take prawns. (at p367)

6. Accordingly much turns upon the meaning to be given to the words "bays and gulfs" in South Australia's constituting documents; in particular whether they operate so as to include within the territory of the State areas of water additional to those inland waters which would in any event form a part of that territory. If they do it will be necessary to define with some precision the extent of the waters so included. Only then will it be possible to determine what relevant waters remain outside the territory of South Australia and may therefore be waters in respect of which the plaintiff is entitled to the relief it seeks. (at p367)

7. I have concluded that the express references to "bays and gulfs" in the Act of 1834 and in the subsequent letters patent do operate so as to include within the State's territorial boundaries waters which would not otherwise form a part of the State. The words on their face speak of areas of water as being included within the delineated territory; moreover the context in which they occur, the particular circumstances of the colony in whose creation these words were used and the notable singularity of their use (the constituting documents of no other Australian colony containing words at all to the like effect) all support the view that they mean what they say and do operate to include within territorial boundaries the waters which they describe. (at p367)

8. The Act of 1834, after describing, by means of the bounds already mentioned, Australian waste lands fit for colonization, refers to those anxious to colonize them, to the desirability of their doing so and to the intending colonists' wish to establish a uniform system of disposal of waste lands. Next follows the enacting provision to which I referred at the outset of this judgment; then the relevant part of Australia is once again described by reference to the same bounds but now included in that description are the words "any the Bays and Gulfs thereof". It is within that territory that one or more provinces may be established. Thus the total area designated as that within which provinces may be created is first described as bounded on the south by the Southern Ocean and is then enlarged by adding to its description the words "together with all and every the Islands adjacent thereto, and the Bays and Gulfs thereof". The reference to adjacent islands clearly enough serves to add territory to that already described, offshore islands would not otherwise be included in an area whose seaward bounds are described as the Southern Ocean; the words "together with" are thus seen to perform their usual function of adding something to what has already gone before and what are added are not only the adjacent islands but also the bays and gulfs. I should add that I regard it as manifest that it is to areas of water and not to the sinuosities of the adjoining coastline that "bays and gulfs" refer; the context itself establishes this, quite apart from the supererogation which the contrary view would attribute to the draftsman. (at p368)

9. The letters patent depart but little from the Act's description of the colonial territory. Islands are dealt with in somewhat greater detail, Kangaroo Island being specifically named, and, perhaps for this reason, the draftsman has referred to bays and gulfs before turning to the question of islands. The whole phrase concerning bays, gulfs and islands is introduced by the unequivocal words "including therein", thereby even more clearly engrafting onto the originally described land mass both "the bays and gulfs thereof" and the islands which are described. (at p368)

10. In certain later colonial documents will be found a recognition of the rather special position occupied by South Australia in relation to the description of its territorial limits. Some twenty months after the date of the first South Australian letters patent there issued to Sir George Gipps, in October 1837, a commission as Governor "in and over our Territory called New South Wales (except as hereinafter excepted)"; then followed a description of the Australian mainland extending to the west as far as 129# of east longitude, including all adjacent islands within certain latitudes, but making no reference to bays or gulfs and with no other words at all descriptive of areas of the sea. On the contrary, what is described is consistent only with a description of land territory. Then follows the words of exception, presaged by the earlier parenthetical reference. These except out "that part of our said Territory...the province of South Australia" whose bounds are then given, followed by the words "with all and every the Islands adjacent thereto and the Bays and Gulfs thereof". Two years later Sir George Gipps' commission was amended by enlarging the limits of New South Wales so as to include New Zealand; again the province of South Australia, its adjacent islands and "the Bays and Gulfs thereof" are excluded. It may be mentioned in passing that when, in the following year, New Zealand was erected into a separate colony the description of its territory followed the pattern customary in the case of Australasian colonies, being confined to land masses only. (at p369)

11. In February 1846 North Australia was detached from New South Wales and erected into a separate colony. Its territory was described as all those parts of New South Wales to the northward of 26# of south latitude. The colony was shortlived, the letters patent erecting it being revoked in December 1846. In April 1848 the limits of New South Wales were extended "to comprehend all our Territory lying Northward of the 26th degree of South Latitude", with all adjacent islands. Then in 1863 this territory was again detached from New South Wales, this time being annexed to South Australia but on this occasion its description was significantly altered. Whereas previously nothing but land masses were included in its description there now appeared, for the first time, the words, familiar in a South Australian context, "together with the bays and gulfs therein". The Northern Territory remained a part of South Australia until surrendered to the Commonwealth in 1910. In December 1907 an agreement between the Commonwealth and the State of South Australia, subsequently ratified by their respective legislatures, had provided for that surrender and in that agreement the Territory was defined as "together with the bays and gulfs therein". (at p369)

12. Other official references throughout the nineteenth century to the extent of the territory of South Australia appear to be consistent in their retention of the phrase "bays and gulfs". In the second half of the century the phrase came to be somewhat expanded; thus in Sir John Fergusson's commission of 1869, in that of Sir Anthony Musgrave of 1873 and in the first letters patent constituting the office of Governor of the State on Federation there appear, after the reference to gulfs and to bays, the words "creeks, rivers". The word "creeks" is no doubt to be understood as referring to inlets on the seacoast, its primary English meaning, rather than to the, originally colonial, meaning of a small river or tributary. This latter inclusion of creeks and rivers may have been no more than stylistic, their waters would in any event have been internal waters of the colony. Similar words do not occur in contemporaneous descriptions of the territory of other Australian colonies. South Australia's letters patent of 1900 to which I have referred provide a further instance of the singularity of the description given to its territory; with those letters patent may be contrasted the respective letters patent of 1900 constituting, for each other state of the newly created Commonwealth, the office of Governor. Only in the case of South Australia is its territory described as including areas of the sea, with specific reference made to "gulfs and bays". The pattern is repeated throughout earlier colonial letters patent in Australasia; in none but those of South Australia is anything other than land masses expressly referred to. It was only in the proclamations issued by naval officers when taking possession of portions of Australia in the King's name that there were included on occasions claims to bays, harbours, creeks (again used in the English sense of that term) and the like, as with Cook in 1770 and Captain Bremer in 1824. (at p370)

13. That the description of the territorial limits of South Australia should be thus unique is but a reflection of the quite special circumstances surrounding its settlement and of the part which geography played in it. When, in the early 1830s the South Australian Land Company first sought the creation of a province in southern Australia in which its members and their dependants might settle, attention was focussed upon that part of the southern coastline which was known to contain two great gulfs, a large island close offshore and, nearby, the mouth of that great river which Captain Sturt had so recently explored from its upper waters in New South Wales down to Lake Alexandrina. His hopes that it might provide means of continental communication led the more euphoric to speak of a settlement at the mouth of the Murray River as the site of a second New Orleans. His own enthusiastic description, published in 1833, of the fertile lands between Gulf St Vincent and the River Murray, coupled with the equally favourable report by Captain Barker's party of their journey from the eastern shores of Gulf St Vincent overland to the Murray mouth, aroused much interest in a settlement in the general locality. (at p370)

14. A number of possible sites for settlement were thought to exist. There was already a primitive settlement of sorts, of ill repute, in Nepean Bay on the north east of Kangaroo Island, peopled by sealers, some escaped convicts and the aboriginal women they lived with. It had a good harbour and it was there that at first the new settlers found a temporary resting place, but there were other prospective sites; the site of the present Port Lincoln, in Spencer Gulf, had long been thought to provide an excellent harbour and, in addition to the expectations which had been aroused concerning the eastern shores of Gulf St Vincent, Encounter Bay, to the west of Lake Alexandrina, was also thought of as a possible centre for colonization despite Sturt's description of its surf-fringed beach. Much uncertainty was occasioned by a lack of conclusive evidence that no navigable entrance to the River Murray existed. (at p371)

15. No one site could be determined upon in advance as the capital of the province. It was the task of Colonel Light, appointed as Surveyor-General, to determine where the capital should be sited although it was known that its general location would be in proximity to the province's striking geographical features, the two gulfs, the island and the river mouth, all more or less grouped together in the centre of its southern coastline. It was not until August 1836, some six months after the date of the letters patent erecting the Province, that Light arrived off Kangaroo Island and began his task of exploration and selection of a suitable site. Accordingly, when, some years earlier, the South Australian Land Company and, later, the South Australian Association were making representations to and conducting lengthy, and at times difficult, negotiations with the Colonial Secretaries of the day, culminating in the Act of 1834 and the subsequent letters patent, what was to the forefront was not any particular site but rather a general locality characterized by these geographical features. (at p371)

16. One notable aspect of the locality, immediately apparent from the charts of Captain Matthew Flinders, who had surveyed the whole area some thirty years earlier, in 1802, was that, unlike the relatively confined bays, harbours and estuaries on the shores of which other settlements had by then been established on the Australian mainland and in Tasmania, the two gulfs were great arms of the sea. They could not safely be assumed to be inland waters which would, without express mention, be included in any description of territory which confined itself to land masses. Yet they might be said, in the words of Atkin L.J. in The Fagernes (1927) P 311, at p 325 , to penetrate into the vitals of the colony, providing access to great areas of its territory for friend and foe alike. They must in the 1830s have appeared destined to provide the infant colony for many years to come with its only means of internal communication and trade. An intention expressly to include them within its territory was in these circumstances wholly understandable. (at p371)

17. If the gulfs were thus to be expressly included in the colony's territory the reference to bays becomes readily explicable. Although neither term has a precise meaning, "bays" is frequently applied to a physical feature not only of different shape but also of lesser size than that described as a gulf; exceptions will readily spring to mind but only serve to emphasize how imprecise are the two terms. To have expressly included the greater "gulfs", while saying nothing as to the lesser, "bays", might well have been regarded as suggesting some conscious omission of the latter. This was, as I have said, the case of a colony possessing very prominent marine features, which were not necessarily to be regarded as internal waters; the location of its principal city, then still unknown, might well prove to be upon some bay outside either gulf, for instance Encounter Bay west of the Murray mouth or Nepean Bay on Kangaroo Island. For communication between that city and the rest of the colony reliance in the first instance would be upon the waters of the bay on whose shores it was situated and thence to the waters of one or other of the gulfs. In those circumstances the express inclusion of "bays" as well as "gulfs" both in the Act and in the letters patent is a matter for no surprise. (at p372)

18. It is for the foregoing reasons that I have concluded that the territory of South Australia has at all times included more than its land mass together with inland waters and adjacent islands and has extended also to whatever waters are properly comprised in the phrase "the Bays and Gulfs thereof". I thus arrive, after a laborious and perhaps laboured journey, at the like conclusion as that more speedily attained by Windeyer J. in Bonser v. La Macchia (1969) 122 CLR 177, at p 233 and by Mason J. in New South Wales v. The Commonwealth (1975) 135 CLR 337, at p 460 . That this conclusion is one which would have occasioned no surprise in the Colonial Office of the 1840s is apparent from the advice tendered in 1841 to Lord Stanley by the Committee of the Privy Council for Trade, advice which canvassed the possibility that the limits of the Province as defined in the Act and letters patent were such as to include the two gulfs within its territory. (at p372)

19. The reference to "gulfs" must I think be taken to include the whole of the waters of Spencer Gulf and of Gulf St Vincent from their northermost reaches southerly to the extremities of the land which bounds them on either side. In the case of Spencer Gulf a line from Cape Catastrophe on the south eastern extremity of Eyre's Peninsula to Cape Spencer on the south western extremity of Yorke Peninsula appropriately defines that gulf. Not only are those two points more or less at the extremities of the bounding land but they are prominent landmarks long recognized in charts and sailing directions as important features of the coast and described in the Australia Directory (1853), vol. 1, p. 81, and in subsequent like publications, including the Australia Pilot, 6th ed. (1973), as forming the entrance to the gulf. (at p373)

20. The case of Gulf St Vincent is somewhat different since it might be said that Kangaroo Island should be regarded as an extension to one side of the land within which the gulf lies. Leaving aside for the moment this possibility the extent of the gulf is not otherwise in doubt. The Australia Directory of 1853, at p. 82, describes the entrance to Gulf St Vincent as lying between Cape Jervis and Troubridge Hill. That cape is near the south western extremity of Fleurieu Peninsula and is a prominent local feature. Troubridge Hill is in fact a high cliff face on the south eastern point of Yorke Peninsula and in the 1973 edition of Australia Pilot is described as two miles west of the entrance to the gulf, which is said to be Troubridge Point. This latter feature is more nearly at the south eastern extremity of Yorke Peninsula and is closer to Cape Jervis than is the hill and for these reasons seems to provide a more appropriate western terminating point for the southern margin of the gulf. I would accordingly regard a line from Cape Jervis to Troubridge Point as marking the southern limits of Gulf St Vincent. (at p373)

21. To seek to extend Gulf St Vincent to the west so as to include the waters of Investigator Strait, north of Kangaroo Island, ignores the size and significance of the channel which separates the Fleurieu Peninsula from that island. Although Flinders named it Backstairs Passage it is a very significant physical feature; it is navigable by the largest vessels (Australia Pilot 6th ed. (1973)) and is about seven miles wide at its narrowest point. It is thus very different indeed from the islands off the Louisiana coast which, in United States v. Louisiana (1969) 394 US 11, at pp 60-66 (22 Law Ed 2d, 44 at pp 82-86) , the United States Supreme Court acknowledge might in certain circumstances be regarded as a part of the mainland and whose headlands might be treated as enclosing a bay. Neither Matthew Flinders nor subsequent navigators or explorers ever appear to have failed to distinguish between the two gulfs on the one hand and Investigator Strait on the other and the express references in the letters patent of 1836 to Kangaroo Island as an entity distinct from the colonial mainland goes far to disqualifying it as a mere extension of the mainland. I conclude that the references to gulfs in the Act of 1834 and in the subsequent letters patent should not be understood as including the waters of Investigator Strait as a part of Gulf St Vincent. (at p373)

22. Perhaps the most detailed judicial consideration of the propriety of treating islands as forming the headlands of enclosed inland waters occurs in United States v. Louisiana. The Supreme Court, although specifically concerned with interpretation of the terms of the Convention on the Territorial Sea and the Contiguous Zone, engaged in a broad survey of the law. Although the Court concluded (1969) 394 US, at p 66 (22 Law Ed 2d, at p 85) that a particular island might in appropriate circumstances be treated as part of the mainland and as thus constituting the headland of a bay the illustrative but not exhaustive list of such circumstances as it gave serves to confirm my view that Kangaroo Island is not such an island. (at p374)

23. If Investigator Strait is not to be regarded as included as an integral part of the inland waters of Gulf St Vincent there is, I think, no other ground for treating it as all part of the inland waters of the State; certain of its bays may be, but only because of their particular geography and not because they give onto the waters of the Strait. The Strait is not itself a bay within any accepted meaning of the term nor can history or usage be relied upon to make it so. No doubt the Strait must have been regarded in the 1830s as linking the two Gulfs and as close to the centre of anticipated settlement but it is significant that the one apt description which might be applied to it, suggested both by its shape and by the name it had then long borne, that of "strait", was not used by the draftsman when he came to describe those waters which were to be included in the territory of the Province. (at p374)

24. The particular importance of Investigator Strait in the present case is that it is from its waters that the prawns seized from the plaintiff's vessels were taken. They had been caught in the strait a number of miles offshore and remote from any waters capable of being described as within any bay of the coastlines either of Yorke Peninsula or of Kangaroo Island. Accordingly all that the plaintiff complains of occurred, on the view which I have formed, outside the territory of South Australia. Moreover it occurred more than three miles to seaward of low-water mark on the adjacent coasts of the strait and more than three miles to seaward of the closing lines which I have described as marking the southern limits of the two gulfs. Accordingly, it is high seas beyond territorial waters that are here in question and any Commonwealth fisheries laws there applicable will be of undoubted constitutional validity - Constitution, s. 51 (x.). The plaintiff was, in virtue of licences issued under the Fisheries Act 1952 (Cth), entitled to take prawns from those waters and it contends that, to the extent that State laws made it unlawful to do so and purported to authorize the seizure of prawns so taken, they are inconsistent and fail accordingly, the seizures being illegal. (at p375)

25. The plaintiff's submissions to this effect are in my view correct. The Fisheries Act 1952 clearly extends to these waters of the high seas, which were in fact proclaimed waters for the purposes of the Commonwealth Act. The State legislation, the Fisheries Act, 1971-1975 (S.A.), follows in this respect a pattern similar to that of the Commonwealth Act; it prohibits generally the taking of fish without a licence and then provides for the grant of licences. The plaintiff's prawns were seized because they were taken without the benefit of any State licence. To permit such an operation of the State law in relation to fishing authorized by Commonwealth licence would produce just such a position as that described by Fullagar J. in O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565, at pp 591-592 . For the reasons states by his Honour the operation of s. 109 of the Constitution will in such circumstances be attracted so as to render inoperative the State's power to seize these prawns, caught pursuant to Commonwealth licence. This conclusion is enough to dispose of one aspect of this case, that related to the relief claimed arising out of the seizure of prawns. (at p375)

26. The additional relief which the plaintiff seeks is by way of a declaration of its entitlement, as the holder of Commonwealth fisheries licences, to fish not only in the two gulfs but also in waters which it describes and which would include the whole of Investigator Strait, Backstairs Passage and the waters to the south of Spencer Gulf between Kangaroo Island and Eyre's Peninsula. (at p375)

27. The making of any declaration of this sort would be far-reaching in its implications, not only for South Australia but also for the Commonwealth and the other Australian States. It necessarily involves the making of a number of important decisions, without which no delineation of waters such as it contemplates can be undertaken. First is the general question of the extent of inland waters of the State, within which Commonwealth fisheries legislation can have no valid operation even were it to be understood as purporting to operate there. Secondly there arises the position within the three-mile territorial waters, the league seas; is the Commonwealth legislation expressed to operate there and, if so, may it validly do so? If it may, has the State legislative competency to enact fisheries legislation operative in league seas and, if it has, will its fisheries laws be bad for inconsistency with the Commonwealth legislation? Thirdly, in the case of the high seas beyond league seas, where Commonwealth fisheries legislation clearly applies and is valid, has the State the like legislative competency and, if it has, are the fisheries laws passed in exercise of that competency bad for inconsistency? These are the various aspects which I see as involved in the declaratory relief which is sought, to some of which answers may readily enough be given. But it is what is involved in the first, the actual delineation of inland waters, that must, in my view, preclude this Court from making any declaration such as the plaintiff seeks. (at p376)

28. It is clear that the greater part of the waters to the south of the two gulfs, in no way enclosed within jaws of the land, will not be inland waters. The common law has always recognized that coastal waters in the form of bays enclosed within the jaws of the land form part of the inland waters of the littoral State. However, difficulty has always been experienced in defining with any precision what must be the attributes of such waters before they may be regarded as sufficiently landlocked to qualify as inland waters. It is said that they must be waters inter fauces terrae but little comfort is to be derived from a recourse to the Latin. To explain the concept by reference to fauces terrae only invites the question how one determines what are the sufficient jaws of the land; as Hill J. put it in The Fagernes (1926) P 185, at p 189 , "What is the metaphor, the open mouth of a man or of a crocodile?" For long the common law had resort to criteria of human vision in determining the permissible width of jaws and an illusion of certainty prevailed: but Lord Hale's test - "where a man may reasonably discern between shore and shore" - must necessarily lead to very different results from that of East (2 East P.C., c. 17, s. 10), approved of by Lord Coke, "where a man, standing on the side of the land, may see what is done on the other". (at p376)

29. These visual criteria, developed in cases concerned with the limits of counties and with the extent of jurisdiction of the sheriff or coroner, even had they possessed the merit of certainty, would seem inappropriate when questions of quite different significance fall for determination. In more recent times they have often been disregarded, as appears from R. v. Cunningham (1859) Bell 72 (169 ER 1171) and from the advice of the Privy Council in the Conception Bay Case (1877) 2 App Cas 394 . Instead, what was said in the Award of the Permanent Court of Arbitration at The Hague in the North Atlantic Coast Fisheries Arbitration (1910) Reports of International Arbitral Awards, vol. XI, 167, at p. 199, although expressed in the context of international law, describes accurately enough the modern common law approach to the question of what bays are internal waters:

"The interpretation must take into account all the individual circumstances which for any one of the different bays are to be appreciated, the relation of its width to the length of penetration inland, the possibility and the necessity of its being defended by the State in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general."

It was of this passage that Atkin L.J. said in The Fagernes, when that case was before the Court of Appeal (1927) P 311, at p 325 , that "I do not know a better statement of the considerations that must be taken into account..." The passage reveals a multifactoral approach in which geography is a major consideration but, as their Lordships pointed out in the Conception Bay Case (1877) 2 App Cas, at p 419 , usage and history also play a part; precise dimensions are not conclusive, neither the three or six mile single or double cannon-shot rule nor any strict ten mile limit from headland to headland is to be regarded as providing an absolute test. Instead, as expressed by Hosking J. in Adams v. Bay of Islands County (1916) NZLR 65, at p 71 the question,

"what part of the sea is part of the territory of New Zealand for all purposes is to be determined by the circumstances of the particular case. It is not because a place is called a 'bay' that its waters are to be deemed territorially part of the mainland. The size and configuration of the bay may decide the question almost on sight, so to speak. If those circumstances leave the decision doubtful, then acts of administration and other historical facts showing proprietorship may be decisive. All this, of course, leaves the ocean boundary in an indefinite state until some judgment or other formal act renders it definite.". (at p377)

30. For Windeyer J. in Ferguson v. Union Steamship Co. of New Zealand Ltd. (1969) 119 CLR 191, at p 201 the size and configuration of Emu Bay on the Northern Tasmanian coast did provide an answer "almost on sight": "I can only say it hardly seems to me possible to say that Emu Bay as a whole is within the fauces terrae. That expression I take to refer to defined promontories or headlands enclosing a narrow entrance to an arm or inlet of the sea." But "Each such case must depend upon its own special circumstances": The Fagernes, per Lawrence L.J. (1927) P, at p 328 . (at p378)

31. If such then be the common law approach to the question of what indentations of the coast create bays which answer the description of inland waters, it will also be very much the approach which a court will necessarily have to adopt in determining which of such indentations are within the description of "bays" for the purposes of the Act of 1834 and the letters patent. Neither the ordinary dictionary meaning of "bay" nor the somewhat more refined meanings to be found in dictionaries of geographical terms provides anything like precision of meaning and I am aware of no historical circumstances which might be used to give to the word, as used in the Act and letters patent, any particular application. Accordingly, given the sort of coast line which occurs in South Australia between the Murray mouth and Eyre's Peninsula, there is, I think, little likelihood of difference in result, in the case of any particular coastal feature, whether there be applied to it the modern common law approach or, simply, the words of the Act and letters patent. (at p378)

32. However in either case a most careful and detailed consideration of each feature of the coastline thought likely to qualify as a bay would have to be undertaken before it could be concluded whether or not it in fact enclosed internal waters. Any doubts on this score will speedily be dispelled by a reading of the judgment of O'Connor J. in Post Office v. Estuary Radio Ltd. (1967) 1 WLR 847; (1967) 3 All ER 663 . The geographical aspects of the particular feature would require to be adequately understood and all relevant aspects of history and usage would have to be examined. (at p378)

33. To say this is immediately to recognize the inappropriateness of undertaking, for the purpose of framing such a declaration as the plaintiff now seeks, any such survey in respect of each of the numerous features of the hundreds of miles of coastline here in question. It is no doubt the task of this Court, in appropriate circumstances, to determine the territorial limits of a State when such an issue arises for decision. But to undertake such a task, as it were, at large and for an entire coastline, and this in the absence of appropriate detailed evidence, is a course upon which this Court should not, in my view, embark. (at p378)

34. Instead the plaintiff must rest content in the knowledge that in general the very extensive waters with which it is concerned south of the two gulfs will not be inland waters of the State any more than will be the generality of offshore waters elsewhere off the Australian coast. (at p379)

35. So much for inland waters. But it is not only within those waters that State fisheries legislation will operate to the exclusion of Commonwealth legislation. If suitably expressed, as is the South Australian legislation, particularly since the enactment of the Off-shore Waters (Application of Laws) Act, 1976 (S.A.), State legislation will also apply within league seas around the coast of the State. That the necessary nexus with the government of the territory of the State will be present, so as to confer extra-territorial competence upon the legislature of the State, was not denied in the present case. It was, however, contended on behalf of the defendants that, despite the decision in Bonser v. La Macchia (1969) 122 CLR 177 , the Fisheries Act 1952 (Cth) should be regarded both as being expressed to operate within league seas and as being capable of valid operation in those waters. Bonser's Case is clear authority to the contrary on both counts and nothing that was said in argument has caused me to doubt either its correctness or the propriety of continuing to regard it as authoritative on these issues. (at p379)

36. Accordingly, the waters within three miles of the coastline and, where the coastline is washed by internal waters, within three miles of the closing line between headlands enclosing those internal waters, will also be waters in which the State fisheries legislation operates to the exclusion of any like Commonwealth legislation. Should the plaintiff's prawning activities take it within these waters or, a fortiori, within inland waters it will thereupon become subject to the rigours of the State prohibition. There remains the waters beyond league seas. In them the Fisheries Act 1952 (Cth) will operate. I have already said that I regard its licensing provisions as intended to prevail over any inconsistent operation of legislation of the State; the Fisheries Act, 1971-1975 (S.A.) is such legislation and will in this respect, on grounds of inconsistency, give way to the Commonwealth Act in those waters. The plaintiff will there be entitled to pursue such fishing activities as may be authorized from time to time by the licences it holds under Commonwealth legislation. (at p379)

37. I would, in the particular circumstances of this case, refuse to make any declaration such as is sought by the plaintiff and would otherwise remit the action to the Supreme Court of South Australia so that the plaintiff may there pursue its claim to damages for seizure of its prawns. (at p379)

MASON J. The colony of South Australia was established by letters patent dated 19th February 1836 issued under the Imperial Act 4 &5 Will. IV, c. 95 (1834) which enabled the Crown to establish one or more colonies in "that part of Australia which lies between the Meridians of the one hundred and thirty-second and one hundred and forty-first degrees of East Longitude and between the Southern Ocean and the twenty-six degrees of South Latitude together with all and every the Islands adjacent thereto and the Bays and Gulfs thereof..." (at p380)

2. In New South Wales v. The Commonwealth (the Seas and Submerged Lands Case), I said (1975) 135 CLR 337, at p 460 :

"The seaward boundary of South Australia was described in letters patent dated 19th February 1836 issued pursuant to

s. 1 of the Act 4 &5 Will. IV c. 95, as 'On the South the

Southern Ocean' including 'all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said Province'. By including 'Bays and Gulfs' the description departed from the approach taken in the case of the earlier colonies. It was prompted by a desire to place beyond question the status of St Vincent's Gulf and Spencer's Gulf which were by this means incorporated within the colony. In other respects, however, the description of South Australia's seaward boundary conforms to earlier practice." (at p380)

3. Earlier, in Bonser v. La Macchia (1969) 122 CLR 177, at p 233 Windeyer J. had expressed a similar view. His Honour said:

"It is worth noticing too that the Province of South Australia included 'all and every the islands adjacent thereto

and the bays and gulfs thereof': 4 &5 Wm. IV

c. 95. Spencer Gulf and St Vincent's Gulf are therefore to be deemed to be intra fauces terrae." (at p380)

4. Further examination of the letters patent and the Act of 1834 in the light of the historical materials which have been comprehensively reviewed by Stephen J. in the reasons for judgment which he has prepared confirm in my mind the correctness of these views. From its inception the colony of South Australia was seen as a settlement based on the enclosed waters north of Kangaroo Island. In 1834 the extent of the waters off the coast was broadly known and it was clear that the settlement would develop in the vicinity of the two main gulfs and that the capital would be sited on the mainland or on Kangaroo Island. (at p380)

5. The inclusion of bays and gulfs within the boundaries of the colony was reiterated in the later official documents. On 6th July 1863 the Northern Territory was added to the colony by letters patent. To the description of the land boundaries which were described by reference to meridians of latitute and longitude there were added the words "together with the bays, gulfs and adjacent islands". These words have been repeated in statutes relating to the Northern Territory, including the Northern Territory Act, 1863 (S.A.), the Northern Territory Surrender Act, 1907 (S.A.) and the Northern Territory Acceptance Act 1910 (Cth). (at p381)

6. In 1863 the South Australian boundary was extended by a Supplementary Commission under the Great Seal which also referred to "bays and gulfs". In 1868 letters patent appointing Sir James Fergusson Governor and Commander-in-Chief of the colony referred to "all and every the gulfs, bays, creeks, rivers, and islands (including Kangaroo Island)..." as being within the boundaries of the colony. In 1877 the letters patent constituting the office of Governor and Commander-in-Chief contained a similar reference. And as long ago as 1875 the South Australian Supreme Court in Reg. v. Wilson (reported in the South Australian Register, Thursday, 17th June 1875) held that the Gulf of St Vincent was "within the real limits" of South Australia simply because the waters were virtually land-locked. (at p381)

7. The inclusion of bays and gulfs in the definition of the South Australian boundaries is singular; it stands in marked contrast to the definition of the boundaries of other Australian colonies where there is no reference to bays and gulfs - see the judgments in the Seas and Submerged Lands Case (1975) 135 CLR 337 . Some effect must be given to the reference to bays and gulfs in the statute and the letters patent; the words cannot be treated as idle surplusage which is what the argument for the Commonwealth amounted to, though it was more delicately expressed by the Solicitor-General. It was suggested that the words did no more than include the land mass which surrounds the bays and gulfs. Why the draftsman should have chosen to adopt this means of describing the coastal land mass in an inclusive clause when the preceding description in the statute and the letters patent had defined and included the South Australian mainland, the argument did not seek to explain. Nor did it offer any persuasive reason for giving the words a meaning quite foreign to their natural and ordinary meaning which plainly is the meaning that they bear in a clause which is designed to include areas not earlier carried by the principal description or areas as to which there might be doubts that they fall within the principal description. (at p381)

30. Once this conclusion is reached, Spencer Gulf presents little difficulty. The total land boundary of this area of water commencing at Cape Catastrophe and ending at Cape Spencer on Yorke Peninsula is 420 kilometres approximately. The width of the entrance between Cape Catastrophe and West Cape or Cape Spencer is in the vicinity of eighty-five kilometres. The depth of penetration of the gulf into the land, measured from Cape Spencer, is 320 kilometres. The seaward boundary of the gulf stands in my opinion on a baseline drawn from either Cape Spencer or West Cape across to Gambier Island, thence to Thistle Island, Hopkins Island and ultimately to Cape Catastrophe. (at p389)

31. In my opinion, if the boundaries of the gulfs rest on baselines drawn as I have suggested, there is no conflict with the rules of international law. The baselines may be supported by reference to Art. 4 or alternatively by reference to the doctrine of historic bays (Art. 7 (6) ). (at p390)

32. The Fisheries Act, 1971-1975 (S.A.) applies in all the waters enclosed by the baselines and, accordingly, the State of South Australia was entitled to seize the plaintiff's fish caught in Investigator Strait on the ground that the plaintiff was in breach of the prohibition contained in s. 29 of the Act by taking fish without holding a fishing licence under the State Act. The plaintiff's licence under the Fisheries Act 1952 (Cth) did not avail it in water within the territorial boundaries of South Australia. The plaintiff is therefore not entitled to relief in relation to the seizure of its fish. (at p390)

33. As to the balance of the plaintiff's case for relief - a declaration that, having a licence under the Fisheries Act (Cth), it is entitled to fish without a State licence in waters outside the baselines enclosing the two gulfs - I would refuse it on the ground that there is no means by which the Court can make a declaration delimiting the boundaries of the area in question. To do so the Court would need to reach conclusions with respect to the status of other bays on the South Australian coast. No evidence has been directed to this question by any of the parties; nor is it a matter which has been dealt with in argument. What I have said in the course of my reasons for judgment is, I think, a sufficient indication of my views to enable the plaintiff to inform itself as to its rights as to the broad areas of water which are in question. (at p390)

34. I would dismiss the plaintiff's action. (at p390)

JACOBS J.

(1) Did the words "bays and gulfs" in the letters patent of 19th February 1836 include the waters of St Vincent's Gulf?

2. I am satisfied that the particular mention of "bays and gulfs" in the documents constituting the Province of South Australia was intended to embrace within the boundaries of the Province waters of the sea, even though not inland waters, which otherwise would fall outside those boundaries. Though it is not possible to state with certainty that before the constitution of the Province the British Crown should be regarded as laying claim to a belt of sea along the southern coast of the Australian mainland by analogy to the claims which it had always made to such seas around the coasts of the United Kingdom I have little doubt that it should be so regarded. Certainly the claim to those parts of the sea which were bays and gulfs was made when the Province was established by the letters patent of 19th February 1836. The express mention of bays and gulfs in the letters patent makes it clear that not only was the land to be included in the Province but also those parts of the sea which fell within the words "bays and gulfs". Therefore at the same time the British Crown asserted its right to those bays and gulfs and incorporated them in the boundaries of the new Province. The inference is irresistible that Spencer Gulf and St Vincent's Gulf were the waters in mind in the particular reference to "gulfs". They both intrude deeply into the land mass which had been annexed by Cook to the dominions of the Crown. They are deep intrusions of the sea into the land mass in a way which typifies a gulf when that word is used to describe a large throat-shaped arm of the sea. (at p391)

(2) What are the boundaries of St Vincent's Gulf?

3. This question, which requires the ascertainment of the mouth or closing line of St Vincent's Gulf, is more difficult. Is it across the entrance to Investigator Strait - from Cape Spencer to Cape Borda or some other cape on the north coast of Kangaroo Island - or is it between two points of the mainland north of Kangaroo Island? If the latter, which points should be selected? From Cape Spencer to Cape Jervis? From Troubridge Point to Cape Jervis? From Troubridge Point to Carrickalinga Head or Rapid Head? The answer to the question depends on how one classifies Backstairs Passage. If it be regarded as part of the open sea, then there is much to be said for the view that Kangaroo Island is set in the open sea with the mouths of the mainland gulfs stretching between points of the mainland north of Kangaroo Island. However, if Backstairs Passage cannot be treated as part of the open sea, then Investigator Strait is the comparatively narrow entrance to one of the great gulfs and as such it is part of the gulf itself. (at p391)

4. The question falls to be determined by ascertaining what were at the time of the establishment of the Province understood to be the "gulfs and bays", in particular what was understood to be St Vincent's Gulf. The letters patent must be taken to have had particular bays and gulfs in contemplation. It is permissible not only to examine the coastal configurations and apply the words to them but also to have regard to the accepted descriptions of the time. It is clear from Flinders' Voyage to Terra Australis (published in London in 1814 recounting the discoveries of 1801, 1802 and 1803) that he regarded the strait which he named Investigator's Strait as extending from the west to the north of Kangaroo Island, with the narrow stretch of water which he named Backstairs Passage as part of Investigator's Strait.

"1802. March. Wednes. 24. March 24 in the morning, we got under way from Kangaroo Island, in order to take up the examination of the main coast at Cape Spencer, where it had been quitted in the evening of the 20th, when the late gale commenced...and then had sight of land...A hummock upon this low part was named Troubridge Hill, and at first it makes like an island. Nothing was visible to the eastward of the low land; whence I judged there to be another inlet or a strait between it and Cape Jervis...Thurs.25... Many tacks were made in these two days, from the northern land across to Kangaroo Island, and gave opportunities of sounding the intermediate strait... It was named INVESTIGATOR'S STRAIT, after the ship... Saturday 27. No set of tide was observable until three o'clock, when it made gently to the north-east, towards the new inlet; and a breeze springing up at south-east soon afterward, we pursued the same course, and were well within the entrance at eight o'clock... Sunday 28...From noon to six o'clock we ran thirty miles to the northward... Tuesday 30 ... In honour of the noble admiral who presided at the Board of Admiralty when I sailed from England, and had continued to the voyage that countenance and protection of which Earl Spencer had set the example, I named this new inlet, the GULPH OF ST. VINCENT... Tuesday 6...we proceeded for the eastern outlet of the Investigator's Strait; in order to prosecute the discovery beyond Cape Jervis... Wednesd. 7. This part of the Investigator's Strait is not more, in the narrowest part, than seven miles across. It forms a private entrance, as it were, to the two gulphs; and I named it Backstairs Passage..." (at p392)

5. The Australia Directory of 1830, printed for the Hydrographical Office of the Admiralty, contains the following:

"SPENCER'S GULF has an entrance 15 or 16 leagues wide between CAPE SPENCER and CAPE CATASTROPHE, which bear from each other about W.N.W. and E.S.E.; but this space is partly occupied by clusters of islands, of which THISTLE'S ISLAND, situated near the western shore, is the most considerable." "TROUBRIDGE HILL, in lat. 35 degrees 8' S., lon. 137 degrees 41 1/2 E. is an inconsiderable hummock standing alone on low sandy land, and makes like an island: it is about a mile from the shore to the southward of it, and 4 1/2 miles west from the S. E. extremity of YORKE'S PENINSULA; off which TROUBRIDGE SHOAL extends in an easterly and E. by N. 1/2 N. direction, for 10 miles into the GULF OF ST. VINCENT, and is partly dry." "CAPE JERVIS is a high bold projection of the main, in lat. 35 degrees 38' S., lon. 138 degrees 9' E., and forms the east point of entrance to the GULF OF ST. VINCENT (Aust. Atlas, Pl. XXI. View 12.). It lies opposite the east extremity of KANGAROO ISLAND, and forms with it a safe and convenient Strait, called BACK-STAIRS PASSAGE; which contains various and irregular depths between 19 and 9 fathoms, and has deep water close to its shores... The breadth of its entrance between that Cape and TROUBRIDGE HILL, which bears N. 37 degrees W. from it, is nearly 13 leagues; and in this space there are regular Soundings in 18 to 20 fathoms, which decrease to 11 and 12 on approaching within 4 miles of TROUBRIDGE SHOAL, and afterwards deepen to 22 in mid-channel to the eastward." "In the east entrance of INVESTIGATOR'S STRAIT is BACKSTAIRS PASSAGE, formed between the N.E. part of KANGAROO ISLAND and CAPE JERVIS. It is about 4 leagues in length N.W. by W. and S.E. by E., and 7 or 8 miles wide; and is perfectly safe in every part, though the soundings in it are very irregular between 9 and 23 fathoms, on a bottom of coral, sand, and shells."

The Australia Directory of 1853 stated:

"150. The Gulf of St. Vincent is formed between the east shore of Yorke Peninsula and a range of moderately elevated hills which extend to the northward, in continuation of those over Cape Jervis. The breadth of its entrance between that cape and Troubridge Hill, which bears N.W. 1/4N. from it, is nearly 13 leagues; and in this space there are regular soundings in 18 to 20 fathoms, which decrease to 11 and 12 on approaching within 4 miles of Troubridge Shoals, and afterwards deepen to 22 in mid-channel to the eastward." (at p393)

6. The two great gulfs have never since been described otherwise. I regard the opinions of cartographers contemporary with the 1834 statute and the letters patent of 19th February 1836 as of primary significance in the elucidation of the question now posed. Where there is a gulf or bay within the meaning to be given in the context to these general words, then, unless the contemporary description of a particular configuration can be shown to be the result of a cartographic or topographical misconception or a popular misnomer it should be accepted as an accurate description and identification of the configuration falling within the general words "gulfs and bays". (at p393)

7. The understanding of the Crown cartographers at the time of the letters patent was that the entrance to St Vincent's Gulf was a line from Troubridge Point to Cape Jervis and I think that this should be accepted as the entrance to one of the bodies of water referred to in those letters patent. (at p393)

(3) Did the holding of a Commonwealth fisheries licence entitle the plaintiff to fish in the waters where the prawns were seized without holding a State licence?

8. Yes. The Fisheries Act (Cth) applied in the subject areas because they were more than three miles to sea from the closing line of St Vincent's Gulf. That Act applies in "Australian waters beyond territorial limits" (s. 4). Whatever meaning is given to these words, the waters in question were beyond territorial limits - both of the Commonwealth and of South Australia. There is no necessity to consider whether any part of the reasoning in Bonser v. La Macchia (1969) 122 CLR 177 needs to be reconsidered in the light of the decision of this Court in the Seas and Submerged Lands Case (1975) 135 CLR 337 . (at p394)

9. A licence to fish is hardly a licence to fish if fishing under the licence is prohibited by another law (of a State). The South Australian statute - the Fisheries Act, 1971 (S.A.), read with the Off-shore Waters (Application of Laws) Act, 1976 (S.A.) - in so far as it prohibits the fishing in the subject areas without holding a licence thereunder is, on well established doctrine, inconsistent and invalid in its operation on the right to fish in those areas. (at p394) (at p394)

(4) To what relief are the plaintiffs entitled?

10. The plaintiffs are entitled to a declaration that whilst they hold licences so to do under the Fisheries Act 1952 (Cth) they are entitled to fish for and catch prawns using the boat "Roper Lorna" in the waters referred to in the particulars contained in par. 4 of the statement of claim. The action should be remitted to the Supreme Court of South Australia for assessment of damages suffered by the plaintiffs as a result of the wrongful seizure of the prawns. (at p394)

11. The plaintiffs are not entitled to any further declaration of their entitlement to fish. On my view they fail in their claims to fish in the waters of St Vincent's Gulf and Spencer Gulf. Any further declaration in respect of the high seas outside bays and gulfs and three mile limits, although it could be made, would have the deficiency that by its expression it might appear to conclude other questions which may in the future arise with respect to the extent of bays and gulfs within the territory of South Australia and with respect to the sea within three miles of that territory. These questions do not arise on the facts of the present case and are best left until they do arise. (at p394)

MURPHY J. I have reached the conclusion that Spencer Gulf, St Vincent's Gulf and Investigator Strait are within the territorial limits of South Australia. (at p394)

2. The territorial limits dividing the internal waters from the territorial sea should be determined in accordance with the prevailing rules of international law which are an important part of the world order. The desirability of harmonizing our municipal laws with them has long been recognized:

"(T)he law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must ceast to be a part of the civilized world." (Blackstone, Commentaries on the Laws of England, vol. IV (1809), p. 67.)

See Jacobs J.'s observations in New South Wales v. The Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337, at p 485 ; Jordan C.J. in Wright v. Cantrell (1944) 44 SR (NSW) 45 . The presumption is that, in the letters patent of 1836, the United Kingdom Government claimed only the internal waters that the prevailing rules of international law attached to the land claimed. Although these rules were uncertain then, they have now been clarified. (at p395)

3. The rules for ascertaining territorial limits are set out in the Convention on the Territorial Sea and the Contiguous Zone 1958 (see Schedule 1 to the Seas and Submerged Lands Act 1973). Article 7 of the Convention (relating to bays with coasts belonging to a single state) provides for the drawing of a straight baseline between the natural entrance points of a bay to form a closing line not exceeding twenty-four miles. Article 7 (6) states that this does not apply to so-called "historic" bays, or where the straight baseline system provided for in Article 4 is applied. (at p395)

4. Article 4 (1) reads:

"In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured."

The disputed waters are "localities where the coast line is deeply indented and cut into". Baselines enclosing them can be drawn (in terms of Art. 4 (2) ) which do "not depart to any appreciable extent from the general direction of the coast, and sea areas lying within the lines" are "sufficiently closely linked to the land domain to be subject to the regime of internal waters". The history of use of the area shows that drawing of the particular baselines "takes account" (in terms of Art. 4 (4) ) "of economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by a long usage". The only economic interests peculiar to the region are Australian. The usage has continued since the European settlement of South Australia. There is no competing use of the waters. The drawing of straight baselines is appropriate in this case (Anglo-Norwegian Fisheries Case (1951) ICJ Rep 116 ; United States v. Louisiana (1969) 394 US 11 (22 Law Ed 2d 44) ). I agree with Mason J. on the precise baselines. (at p396)

5. Some of the evidence suggests that the disputed waters may also come within the concept of "historic bays" referred to in Art. 7 (6) (see "Juridical Regime of Historic Waters, including Historic Bays", U.N. document, Yearbook of the International Law Commission, 1962, vol. II, p. 1; United States v. California (1947) 332 US 19 (91 Law Ed 1889) ). This evidence includes the configuration of the land (especially the depth of penetration by the waters), the remoteness from the territory of any other nation-state, the continuing use of the waters since European settlement, the absence of competing use by any other nation-State, and the economic importance and vital interest of the waters to Australia, particularly South Australia. Some of these factors are relevant to the application of Art. 4. On one view (that the regime of historic bays is an exception to the general rules), if the waters come within Art. 4 and are enclosed by straight baselines they are not historic bays (see "Juridical Regime of Historic Waters, including Historic Bays"). But the applicability of Art. 4 makes it unnecessary to decide whether the waters are historic bays. In my view, if the reference to bays and gulfs had been omitted from the letters patent, it would not affect the result. (at p396)

6. Subject to the effect of the Fisheries Act 1952 (Cth) the Fisheries Act, 1971-1975 (S.A.) applies at least within the territorial limits of South Australia (see s. 5 (2)) and the fish caught by the plaintiff were liable to seizure as they were taken without a State licence (s. 29). (at p396)

7. The plaintiffs contended that the Fisheries Act 1952 (Cth) did not apply to fisheries within three miles seawards of low-water mark or the outside edge of inland waters. They argued that: (1) s. 51 (x.) of the Constitution (the power to make laws with respect to... "Fisheries in Australian waters beyond territorial limits") was the only constitutional basis for the Fisheries Act 1952 (Cth); (2) territorial limits in s. 51 (x.) are three miles out from the low-water mark or outer edge of the internal waters, that is, the outer edge of the territorial sea (as it was in 1901) (Bonser v. La Macchia (1969) 122 CLR 177 ); (3) the Fisheries Act could not constitutionally (and construed consistently with the Constitution did not purport to) deal with fishing within the territorial sea. (at p396)

8. The majority view in Bonser v. La Macchia, that the territorial limits referred to in s. 51 (x.) are at the outer edge of the territorial sea, would cause complications if Australia were to widen its territorial sea as many other nations have. In my opinion, the territorial limits in s. 51 (x.) are the same as those determined in the Seas and Submerged Lands Case (1975) 135 CLR 337 . The territorial limits in s. 51 (x.) are at the inside, not the outside, of the territorial sea. They are at the low-water mark of the coast and (where the coast is indented) divide the internal waters and the territorial sea. Parliament's power under s. 51 (x.) includes power to make laws with respect to fisheries within the territorial sea. The power in s. 51 (x.) is plenary. It is not limited to laws directed to fishing in the fisheries in Australian waters beyond territorial limits but extends to conservation, exploitation, management, marketing and other subjects related to the fisheries. For example, s. 51 (x.) may authorize a law prohibiting or regulating fishing or pollution of land, air or water outside the fisheries it mentions if the law is directed towards the protection or improvement of the fisheries. Thus a federal law to control fishing in the South Australian gulfs may be supported under s. 51 (x.) provided the requisite connexion exists with fisheries in Australian waters beyond territorial limits. Parliament also has power to make laws with respect to the territorial sea (Seas and Submerged Lands Case) which includes power to make laws with respect to fishing in it. It may provide specially for the protection of the territorial sea and its resources. This power extends (if the circumstances warrant) to prohibit or regulate fishing or pollution elsewhere which would adversely affect the sea or its resources (and may provide for activities elsewhere which advance the protection and use of the sea and its resources). (at p397)

9. If traditional methods of interpretation are applied to the Fisheries Act 1952 (Cth) it is uncertain whether the Act applies within the territorial sea (see Bonser v. La Macchia in which it was construed as not applying). The uncertainty is highlighted by the decision in the Seas and Submerged Lands Case but is dispelled if regard is had to the legislative proceedings on the measure. The Parliamentary Debates make clear that the legislation was not intended to apply to fisheries within three miles of the seashore (vol. 216, House of Representatives, p. 564; and Senate, p. 800). Without accepting the reasoning, I would follow Bonser v. La Macchia on this point. Of course, the Parliament has power to extend the operation of the Act. (at p397)

10. The licence under the Fisheries Act 1952 (Cth) was therefore inapplicable. The plaintiff's claim for relief in respect of the seizure should fail. (at p397)

11. The plaintiff also seeks a declaration that he is entitled to fish outside the State limits without a State licence. I would not grant such declaration. The legal and factual considerations affecting the issue have not been explored. (at p398)

12. The plaintiff's action should be dismissed. (at p398)

Orders

Declare that the plaintiff was, between the dates mentioned in par. 4 of the amended statement of claim, and in the circumstances mentioned in that paragraph, entitled to fish for and take prawns in and from the waters particularly described in the said paragraph.

Remit the action to the Supreme Court of South Australia so that the Court may proceed to hear and determine the plaintiff's claim for damages.

Order that the defendant pay the plaintiff's costs of and incidental to the proceedings in this Court.