A Raptis & Son (Regd) v South Australia

High Court of Australia|1977-06-27|Before: Murphy JJ

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.

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.

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° and 144° 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".

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".

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.

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.

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.

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.

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.

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.

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.

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.

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".

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.

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.

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.

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.

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 [16] , 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.

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.

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 [17] and by Mason J. in New South Wales v. The Commonwealth [18] . 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.

(1969) 122 C.L.R. 177, at p. 233. 2. (1975) 135 C.L.R. 337, at p. 460.

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.

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.

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 [19] , 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.

(1969) 394 U.S. 11, at pp. 60-66 [22 Law. Ed. 2d, 44 at pp. 82-86].

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 [20] 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.

(1969) 394 U.S., at p. 66 [22 Law. Ed. 2d, at p. 85].

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.

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.

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. [21] . For the reasons stated 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.

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.

The making of any declaration of this sort would be farreaching 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.

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 [22] , "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".

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 [23] and from the advice of the Privy Council in the Conception Bay Case [24] . 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 [25] , 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 [26] , 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 [27] 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. 1. (1859) Bell 72 [ 169 E.R. 1171]. 2. (1877) 2 App. Cas. 394. 3. [1927] P. 311, at p. 325. 4. (1877) 2 App. Cas., at p. 419. 5. [1916] N.Z.L.R. 65, at p. 71.

For Windeyer J. in Ferguson v. Union Steamship Co. of New Zealand Ltd. [28] 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. [29] .

(1969) 119 C.L.R. 191, at p. 201. 2. [1927] P., at p. 328.

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.

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. [30] . 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.

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.

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.

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 [31] , 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.

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.

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.

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 "

In New South Wales v. The Commonwealth (the Seas and Submerged Lands Case), I said [32] :

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. 1. (1975) 135 C.L.R. 337, at p. 460.

Earlier, in Bonser v. La Macchia [33] 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. 1. (1969) 122 C.L.R. 177, at p. 233.

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.

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 latitude 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.

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.

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 [34] . 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.

It was submitted that if the reference to bays and gulfs were construed so as to include Spencer Gulf and St Vincent's Gulf within the boundaries of South Australia it would follow that all bays and gulfs on the South Australian littoral would be included, a result that could scarcely have been intended. This result does not necessarily follow. It may be that the boundaries of British colonies were expressed to include "bays and gulfs" when it was desired to include large bays and gulfs within colonial boundaries or to remove other doubts as to their status - see W. R. Edeson, Australian Bays, Australian Year Book of International Law 1968-1969, 5, at pp. 17-18 . There reference is made to the definition of the boundaries of the Provinces of New Brunswick, Nova Scotia and Quebec which were expressed to include bays. See 14 & 15 Vict. c. 63; Mowat v. McFee [35] ; R. v. Burt [36] .

(1880) 5 S.C.R. (Can.) 66. 2. (1932) 5 M.P.R. 112.

The point of making such an express inclusion is brought home by the cases which decide that when the territory of a colony is expressed to be bounded by "the Pacific Ocean" or "the sea" it has been held that bays and gulfs are not included within the territory - see the Seas and Submerged Lands Case [34] ; Re Dominion Coal Co. Ltd. and County of Cape Breton [37] ; and D. v. Commissioner of Taxes [38] .

(1975) 135 C.L.R. 337. 2. (1963) 40 D.L.R. (2d) 593, at p. 652. 3. [1941] St. R. Qd. 218, at pp. 223, 229.

The next problem is to locate and define the boundaries of the waters lying to the north of Kangaroo Island which are included within South Australia by the definition of its boundaries. The first step in the resolution of this problem is to examine the status of the waters of Investigator Strait.

It is convenient to begin this examination with the comment that we have no occasion to explore the distinctions which are to be made between "bays" and "gulfs" as a matter of geographical nomenclature. To geographers a "gulf" signifies a large portion of the sea, partly enclosed by land (Bouchez, The Regime of Bays in International Law (1964), pp. 16-17) with some emphasis upon the depth of penetration of the sea into the land (see Monkhouse, Dictionary of Geography (1965), p. 149). It is common ground between the parties that the two inlets to the north of Investigator Strait known as Spencer Gulf and St Vincent's Gulf are appropriately described as gulfs. It is implicit in this statement that they constitute two distinct and separate gulfs, divided by the long arm of Yorke Peninsula.

If the waters of Investigator Strait form part of a gulf it is because they, together with the waters of St Vincent's Gulf, are to be considered as constituting one entire gulf. There is a natural and direct association between the Strait and St Vincent's Gulf; they are complementary, and any line which divides one from the other is purely artificial. Were it not for the existence of Backstairs Passage, which separates Kangaroo Island from Fleurieu Peninsula on the mainland, there would be no question but that the two formed one entire gulf. The association between the strait and Spencer Gulf is more remote. The strait does not provide a direct entrance to Spencer Gulf as it does in the case of St Vincent's, and the toe of Yorke Peninsula appears to physically divide one from the other.

The question, then, which is to be decided is: What is the extent of the gulf which lies to the east of Yorke Peninsula and to the north of Kangaroo Island? Is it limited to the area of water known as St Vincent's Gulf or does it include the area of water known as Investigator Strait? I should add that this question is to be decided in the time reference of 1836, for it is a matter of locating the maritime boundaries of the gulf as defined by the letters patent which brought it into existence at that time. Once it is recognized that the question is as I have stated it to be, the circumstance that one part of the waters enclosed by Yorke Peninsula, the mainland and Kangaroo Island was and is known as St Vincent's Gulf and that the other part was and is known as Investigator Strait ceases to be a decisive or indeed a particularly persuasive consideration. The fact that the two parts are separately named does not deny that they naturally constitute one entire gulf, and that is the contention advanced by the State of South Australia which relevantly arises as the issue for determination.

I have already said that were it not for the existence of Backstairs Passage there could be no question but that the strait and St Vincent's Gulf together form one entire gulf. They constitute a large portion of the sea which is deeply recessed into the land and which is totally enclosed by land save for the entrance to Investigator Strait from the open sea (which is some thirty-six kilometres wide) and Backstairs Passage (which is eleven kilometres wide at its narrowest point). The entire boundary of the united waters along the southern shore of Yorke Peninsula, then along the eastern shore of that Peninsula to the head of the Gulf, then south to Cape Jervis, and finally along the northern shore of Kangaroo Island, is 880 kilometres approximately. The penetration of the water into the land measured from Cape Spencer to the head of the Gulf is 203 kilometres.

The case for denying the character of a gulf to this entire body of water totally enclosed by its land boundaries except for the entrance to Investigator Strait and Backstairs Passage rests wholly and exclusively on the existence of Backstairs Passage and the severance which it achieves of Kangaroo Island from the mainland of South Australia. Subject only to this circumstance, the degree of enclosure of the waters by land and the depth of the penetration of the land by the sea in relation to the narrowness of the entrance are sufficient to satisfy the most stringent requirements. There are many acknowledged gulfs which in one or more respects, particularly in relation to the width of entrance, fail to match the qualification of the area of water now under consideration - the Gulf of Carpentaria, the Gulf of Mexico, the Gulf of California and the Gulf of St Lawrence, to name but a few. And, as a matter of geography, there is no reason why an island may not serve as a headland marking the entrance to a gulf. Indeed, the entrance to the Gulf of St Lawrence is marked by two islands, Newfoundland and Cape Breton Island.

In one sense this may be enough to conclude the question, for there is much to be said for the view that the reference to "Bays and Gulfs" in the statute and the letters patent was a reference to the geographical features denoted by these expressions, rather than to any connotation which international law placed upon them at that time or subsequently. For one thing, what international law had to say about bays and gulfs in the 1830s is not altogether clear. The Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958, which reflected the then existing consensus of nations upon the topic, did not precisely reflect the rules accepted by the community of nations when the colony of South Australia was founded, although it has been considered that the Convention codified existing rules of international law rather than elaborated new rules. For another thing, reasons of policy and practice required that a colonial boundary should be capable of ascertainment and location at any given point of time, a result not readily attainable if it were to depend upon subsequent acceptance by the community of nations of a claim to a maritime boundary based on the drawing of straight baselines or on the concept of an "historical bay" or "historical waters". Accordingly, there is much to be said for the view that the words of the statute and the letters patent should be given their natural and ordinary meaning (which happens to coincide with the meaning which they convey to geographers), rather than the meaning which international lawyers would place upon them.

Nothing that I have stated should be taken to imply that the inclusion of the waters of Investigator Strait is inconsistent with the rules of international law as it existed in the 1830s or now. Far from it. There is some difficulty in expressing the relevant requirements of international law in the 1830s, as it was then in a stage of development. It will, I think, be generally sufficient for present purposes, though not precisely accurate, if the Geneva Convention of 1958 is taken to express the relevant requirements of international law. As I have said, the Convention is a codification of pre-existing rules; it works no radical departure from them.

Although the maximum closing line across the entrance to a bay permitted by Art. 7(4) of the Convention is twenty-four miles, Art. 7 (6) states that the article has no application in the case of "so-called "historic" bays" or in any case where the straight baseline system provided for in the article is applied. Article 4 (1) permits the drawing of "straight baselines joining appropriate points" in "localities where the coast line is deeply indented and cut into". The drawing of baselines is regulated by other provisions in Art. 4, two of which seem of present relevance. They are Art. 4 (2) and (4) which provide as follows:

The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.

Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage.

The question whether a straight baseline can be drawn across a bay to an island forming the headland to the bay in conformity with the provisions of Art. 4 of the Convention was considered by the Supreme Court of the United States in United States v. Louisiana [39] . The Court answered the question in the affirmative, stating that the answer will in each case depend upon the particular circumstances. There arguments were advanced on behalf of the United States to support the proposition that in no circumstances did the article permit the drawing of a straight baseline to an island as the headland of a bay. These arguments are summarized at pp. 60-61 and in n. 83. With respect to them, the Court had this to say [40] :

We do not agree that the face of the Convention clearly concludes the question. No language in Art. 7 or elsewhere positively excludes all islands from the meaning of the "natural entrance points" to a bay. Waters within an indentation which are "landlocked" despite the bay's wide entrance surely would not lose that characteristic on account of an additional narrow opening to the sea. That the area of a bay is delimited by the "low-water mark around the shore" does not necessarily mean that the low-water mark must be continuous.

Moreover, there is nothing in the history of the Convention or of the international law of bays which establishes that a piece of land which is technically an island can never be the headland of a bay. Of course, 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.

A further comment was made by the Court [41] : These arguments, however, misconstrue the theory by which the headland is permitted to be located on the island - that the island is so closely aligned with the mainland as realistically to be considered an integral part of it. Thus viewed, there is no "mouth" between the island and the mainland. Later [42] , reference is made to the statement by Boggs, Delimitation of Seaward Areas under National Jurisdiction, American Journal of International Law, vol. 45 (1951), 240, at p. 258 : Obviously, some islands must be treated as if they were part of the mainland. The size of the island, however, cannot in itself serve as a criterion, as it must be considered in relationship to its shape, orientation and distance from the mainland. In the same footnote reference is made to the extent of the water which separates the island from the mainland and to the question whether offshore islands "form an integral part of a land form". 1. (1969) 394 U.S. 11 [22 Law. Ed. 2d, 44]. 2. (1969) 394 U.S., at p. 61 [22 Law. Ed. 2d, at p. 83]. 3. (1969) 394 U.S., at p. 62, n. 83 [22 Law. Ed. 2d, at p. 83, n. 83]. 4. (1969) 394 U.S., at p. 65, n. 85 [22 Law. Ed. 2d, at p. 85, n. 85].

The Court went on to refer to the Special Master the task of determining in the first instance "whether the islands which Louisiana has designated as headlands of bays are so integrally related to the mainland that they are realistically parts of the "coast" within the meaning of the Convention on the Territorial Sea and the Contiguous Zone".

With respect, I would entirely agree with the observations made by the Supreme Court of the United States respecting the problem under discussion. The comments of the Court confirm the propriety in particular circumstances of drawing a straight baseline across a bay to an island forming a headland. The propriety of so doing in each instance depends upon the particular circumstances of the case. The actual decision in United States v. Louisiana [43] provides no assistance in relation to the facts of the present case. There the circumstances were entirely different from those now under consideration.

Before considering the application of Art. 4 to the present case I should refer to the Anglo-Norwegian Fisheries Case [44] . There the drawing of a straight baseline of fifty-one kilometres across a gulf or bay was upheld on the footing that the coast was deeply indented and fringed by islands, reliance being placed on the geographical configuration of the coast, the vital interests of the population and the immemorial character of the claims. Article 4 in terms reflects the considerations that were regarded as relevant by the International Court and the case itself is an illuminating illustration of how straight baselines may be drawn in conformity with the Convention.

Seen in this light, the waters of the strait and St Vincent's Gulf conveniently fall within the requirements of Art. 4. The coast is "deeply indented and cut into"; a line drawn across the entrance to the strait does not "depart to any appreciable extent from the general direction of the coast", whether one looks to the western shores of Yorke Peninsula and Kangaroo Island or to the line of coast running north from Fleurieu Peninsula on the eastern side of St Vincent's Gulf. And such is the geographical configuration of the area and the degree of enclosure of the waters by the land that the sea areas within the baselines are "sufficiently closely linked to the land domain to be subject to the regime of internal waters". The area of water represents part of the submerged great valley of South Australia (Howchin & Gregory, Geography of South Australia (1909), p. 71).

Kangaroo Island is separated from Fleurieu Peninsula by a narrow stretch of water and is naturally aligned with the mainland, being an extension or projection of it. The size of the island is not so great as to disqualify it from being regarded as a part of the mainland and in this respect the narrowness of Backstairs Passage is an important feature. Furthermore, the island is geologically related to and identified with the adjacent mainland. With the mainland it forms an integral part of a land form. It is not an island formed separately and independently of the mainland.

It is only when one passes beyond the entrance to Investigator Strait that one moves beyond the domain of enclosed waters into the realm of the high seas. The entrance to the strait provides an access to and an exit from ports within the gulf. It does not provide a route through the high seas. A vessel travelling from Western Australia across the Great Australian Bight to a destination in the eastern States would pursue a course south of Kangaroo Island; only for reasons of emergency would it follow a course through the Strait and through Backstairs Passage.

In this case the evidence has little to say about economic or vital interests which are in any event subordinate to geographical factors. That there is an economic interest in the preservation of fisheries and an interest in the resources of the seabed is beyond question and there is no suggestion that the fisheries or other resources are exploited to any extent by foreigners. Although the degree to which the waters have been used or controlled has not been precisely established, the remoteness of the area from foreign States and from international sea routes admits of a lesser degree of usage and control than might otherwide be required to support a claim by the coastal State.

That there has been long usage of the waters does not admit of doubt. The historical materials reveal that from the inception of the proposals for the establishment of a settlement in South Australia the waters to the north of Kangaroo Island were envisaged as forming an integral part of the colony. Over the years Australia has asserted a claim to sovereignty over the waters of Spencer Gulf and St Vincent's Gulf, including Investigator Strait - see the memorandum by the Secretariat of the United Nations: document No. A/ CONF. 13/1 30th September 1957, par. 43 n. 46; A. H. Charteris, Chapters on International Law (1940), p. 99; the statement on 31st October 1967 by the Hon. N. H. Bowen Q.C., Attorney-General for the Commonwealth, Commonwealth Parliamentary Debates, vol. 57 (1967), pp. 2444-2445; Edeson, "Australian Bays", loc. cit., p. 50. The inclusion of the waters within the colonial boundaries of South Australia followed by a continuing claim to dominion over the waters is an important consideration in establishing their status in international law (Direct United States Cable Co. Ltd. v. Anglo-American Telegraph Co. Ltd. [45] ). This claim has not been disputed by other nations.

The statement on 31st October 1967 suggests that a common baseline of 110 kilometres could be drawn enclosing Spencer Gulf and St Vincent's Gulf. Although its location is not free from doubt, this closing line would evidently include Investigator Strait. It would run from the south-western corner of Kangaroo Island to the western margin of the entrance to Cape Spencer in the vicinity of Cape Catastrophe. As I said earlier, the waters of the two gulfs are two separate areas of water divided by Yorke Peninsula. Moreover, the common baseline suggested would include as internal waters some areas of water standing outside the entrance to Investigator Strait and lying south of Spencer Gulf. These areas are in my view parts of the open sea and not enclosed waters. Likewise, for the same reason I do not consider that the drawing of a baseline between Cape Borda on the north-western corner of Kangaroo Island to Cape Catastrophe or a point nearby can be supported.

Accordingly, it is my opinion that the boundaries of the gulf are correctly marked by a straight baseline drawn across the entrance to Investigator Strait between Cape Spencer on Yorke Peninsula and Cape Borda on Kangaroo Island with another straight baseline drawn between Porpoise Head on the mainland and Cape St Alban on Kangaroo Island at the outer entrance to Backstairs Passage. These two lines would then mark the boundaries of the gulf comprising St Vincent's and Investigator Strait.

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.

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)).

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.

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.

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

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.

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.

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.

March. Wednes. 24. March 24 in the morning, we got under way from Kanguroo 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 Kanguroo 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

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° 8′ S., lon. 137° 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° 38′ S., lon. 138° 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° 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 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.

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".

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.

(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?

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 [46] needs to be reconsidered in the light of the decision of this Court in the Seas and Submerged Lands Case [47] .

(1969) 122 C.L.R. 177. 2. (1975) 135 C.L.R. 337.

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.

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.

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.

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

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) [48] ; Jordan C.J. in Wright v. Cantrell [49] . 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. 1. (1975) 135 C.L.R. 337, at p. 485. 2. (1944) 44 S.R. (N.S.W.) 45.

The rules for ascertaining territorial limits are set out in the Convent 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.

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 [50] ; United States v. Louisiana [51] ). I agree with Mason J. on the precise baselines. 1. [1951] I.C.J. Rep. 116. 2. (1969) 394 U.S. 11 [22 Law. Ed. 2d 44].

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 [52] ). 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.

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).

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 [53] ); (3) the Fisheries Act could not constitutionally (and construed consistently with the Constitution did not purport to) deal with fishing within the territorial sea.

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 [54] . 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).

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.

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

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.

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. A Raptis & Son (Regd) v South Australia [1977] HCA 36

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