Bonser v La Macchia

7. The Governor-General may, by Proclamation, declare any Australian waters to be proclaimed waters for the purposes of this Act.

(1) The Minister may, by notice published in the Gazette -

(c) prohibit the taking, from proclaimed waters or from an area of proclaimed waters, of fish, or fish included in a class of fish specified in the notice, by a method or equipment specified in the notice.

Section 13 (1) of the Act makes it an offence to do an act prohibited by a notice for the time being in force under s. 8 of the Act. The defendant was prosecuted in a court of summary jurisdiction in New South Wales for doing a prohibited act, namely, using a net of too small dimensions "in waters beyond territorial limits".

This prosecution was removed into this Court pursuant to s. 40 of the Judiciary Act 1903-1966 Cth upon the motion of the Attorney-General of the Commonwealth on the ground that the interpretation of the Constitution was involved therein.

The defendant admits having done the acts charged at the place in the part of the sea described in the complaint. However, he submits that no offence was committed because:

(1) The constitutional power of the Commonwealth with respect to fisheries is limited to fisheries in waters within three nautical miles of the Australian coast.

(2) That, if contrary to that submission, the power extends to waters beyond three nautical miles of the coast, "Australian waters" as mentioned in the Constitution do not extend as far seaward from the coast as the outer limits of the area of water proclaimed by the Governor-General in purported exercise of his power under s. 7 of the Act: and that the proclamation being inseverable is for that reason wholly void as unauthorized by the Act.

(3) That in any case, the constitutional power with respect to fisheries does not extend to the activity of fishing.

The notice under s. 8 in turn depends for its validity upon the existence of a valid proclamation under s. 7: but there is no independent challenge to the validity of the notice.

The relevant constitutional power upon which the Act must be supported and by reference to which, through the Act because of its form, the proclamation of Australian waters for the purposes of the Act must be justified is s. 51 (x.) of the Constitution which gives to the Parliament power to make laws "with respect to: - (x.) Fisheries in Australian waters beyond territorial limits".

The Attorney-General, who appeared for the complainant, submitted that the constitutional power was not so limited as suggested by the defendant but extended to fisheries in all those waters that might fairly be regarded as associated with Australia in its commerce including its commercial fishing, actual or potential, or in its defence. He submitted that on this footing those waters at least included the waters proclaimed by the Governor-General. As the place where the offence was committed was beyond three nautical miles of the coast and within the outer limits of the area of proclaimed waters, the Attorney-General submitted that it was unnecessary in order to dispose of the case to decide the inner limit of the waters referred to in the constitutional power or of those declared waters. The Attorney-General did not desire to argue the question as to the meaning of the expression "beyond territorial limits" as used in the Constitution or as used in the Act or of the expression "waters that are within the territorial limits of a State or a Territory of the Commonwealth" - the latter being the waters excepted from the area of the proclaimed waters. Accordingly he asked the Court not to decide where those inner limits were, nor where constitutionally they could be set. In this attitude he was supported by the Solicitor-General of the State of New South Wales who sought leave to intervene in the proceedings merely to agree with the submission of the Attorney-General that it was unnecessary in this case to determine the inner boundary of the Australian waters to which the constitutional power extended or the actual inner limits fixed by the proclamation. He joined in the request that that matter should not be decided. The Court however during the argument of the appeal made it plain that this attitude of the governments concerned would not necessarily preclude the Court from deciding the question.

Australian waters are defined in s. 4 of the Act to mean:

(b) the waters adjacent to a Territory and within territorial limits; and

(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits.

The proclamation of the Governor-General made and amended pursuant to s. 7 of the Act declares "the Australian waters specified in the Schedule to be proclaimed waters for the purposes of" the Act. The schedule to the proclamation commences with the words "All those waters, other than waters that are within the territorial limits of a State or a Territory of the Commonwealth, contained within the area bounded " and then follows a description of an area by metes and bearings which was translated for the purpose of the argument to lines upon a map of Australia and the adjacent seas. The inner limits of the area are on the seashore. The seaward limits of the proclaimed area are at varying distances from the Australian coast, but generally speaking about 200 miles from the east, west and south coasts, treating Tasmania for this purpose as part of the south coast of Australia. To the east, the lines run north around the eastern part of the island of New Guinea passing between New Britain and the Solomons to a point north of the boundary between Papua-New Guinea and West Irian. In the north-west and north of Australia it runs through the Timor Sea to a point north of the Gove Peninsula.

The notice gazetted by the Minister pursuant to s. 8 of the Act prohibits, amongst other things, "the taking from the area of proclaimed waters specified in the Second Schedule to this Notice of fish, other than prawns, by a seine trawl-net" having a mesh of less dimension than that set out in the notice. The second schedule describes the waters with respect to which the prohibition is to operate as "All that area of proclaimed waters, being the waters, other than waters that are within the territorial limits of a State or Territory of the Commonwealth, contained within the area bounded" and then follows a description of an area by metes and bearings. This area is confined substantially to the coast of New South Wales but extends as far seaward as the area of the proclaimed waters in that vicinity. The parenthesis "being etc." is descriptive it seems of the proclaimed waters and not of the waters to which the notice relates. The defendant's activity of which complaint is made was actually within the area covered by the notice and thus also within the area of proclaimed waters.

I have carefully considered the request of the Commonwealth and of the State of New South Wales made through their respective law officers that the Court should not decide the inner limits of the Australian waters which fall within the ambit of the constitutional power. But after much consideration I have concluded that I cannot really dispose of the matter without doing so. For one thing, the respondent's submissions must be dealt with and they essentially involve the determination of that inner limit. Also, the decision of the meaning of "Australian waters" as defined in the Act involves, in my opinion, a decision both on the constitutional use and the statutory use of the expression "beyond territorial limits". I think the first question in considering the total expression "Australian waters beyond territorial limits" is to determine to which territorial limits the reference is made. Are they the territorial limits of the Commonwealth or the territorial limits of the States or are they the Imperial territorial limits? The only indication which the total expression seems to give is that there are Australian waters within those limits, for it is only fisheries in some Australian waters, namely those beyond these limits, which may be the subject of a law made under s. 51 (x.).

I therefore turn first to that question. It is important, in my opinion, to the understanding of the meaning and extent of the constitutional power that the limits of the territory over which the government of a British colony was given authority by the Imperial Government should be recognized. A number of considerations including the extent of the realm and the jurisdiction of the Admiral are important in reaching any conclusion on that matter.

I cannot read the majority decision in Reg v Keyn (The Franconia) [1] , in any other sense than that at common law the realm ended at the edge of the sea and that it did not extend to the bed of the sea, i.e., to any portion of the earth's crust adjacent to the realm covered at low tide nor did it extend to the waters which washed the shores. These constituted the high seas and events taking place upon them fell within the jurisdiction of the Admiral, whose jurisdiction in general was not exercisable in 1788 within the realm except in the main streams of great rivers below the bridges: 13 Ric. 2, Stat. 1 c. 5; 15 Ric. 2 c. 3. See also the Offences at Sea Act, 1536 (28 Hen. 8 c. 15, ss. 1 and 2). Later it was extended by the Admiralty Court Act, 1840 (3 & 4 Vict. c. 65), to certain events taking place within the countries. Thus it would be seen that the territorial limit of the realm was the low water mark. Legislative authority exercised in respect of events beyond that mark is on that footing and, in my opinion, properly regarded in a precise sense as "extra territorial". However, accretion to the bed of the sea beneath territorial waters creating land above tidal limits has been held to be vested in the Crown. A basis for this conclusion is said to be the ownership by the Crown of the bed of the sea subjacent to such land: and expressions are used in the cases to which I later refer which treat the entire bed of the sea within three nautical miles as vested in the Crown.

But whatever the correct view as to the dominion of the bed of the sea under territorial waters, the question remains whether that area, whether of water or subjacent land, was vested in a colony as part of the territory of the colony.

I think it is essential to bear in mind that when colonies were formed all that relevantly occurred was that a specified land mass was placed at the outset under governorship, and later, under the control of a legislature. The instruments setting up the colonies did not in terms include as territory and subject to colonial governorship any part of the bed of the sea or the superincumbent waters. The progression was from the condition of governorship with near absolute powers to a state of self-government with plenary powers to make laws for the peace, order and good government of that land mass. This was the utmost to which the colonies ever attained. The colonies were never at any stage international personae nor sovereign and the States still are not. Thus any concession or convention made between nations as to the use which might be made of the bed of the sea or of the waters above it applied and still applies, in my opinion, only as between nations and, in the case of conventions, as between nations parties to the convention. The plenary nature of the legislative power granted over and with respect to described territory cannot, in my opinion, be a basis for regarding that territory as itself extended to those places in which laws made under such a power may validly have effect. Apart from legislation or prerogative or statutory instrument of the United Kingdom, any seeming accession to the realm or to jurisdiction over the sea by reason of international arrangements accrued, in my opinion, only to Great Britain and not to her colonies or her dominions or their territories in their own right.

I respectfully agree with the conclusion drawn in connexion with the seabed and the waters above it adjacent to the Province of British Columbia by the Supreme Court of Canada in Reference re Ownership of Off-Shore Mineral Rights [1] , and with the reasons which were given for that conclusion. It is quite clear historically, if one examines the descriptions of the territory placed under governorship, that the territory of the original colony of New South Wales except as to certain islands of the Pacific did not extend beyond low-water mark on the eastern coastline of the continent and of the island of Tasmania: and that as each of the colonies of Victoria and Queensland were severed from it, the territory of those colonies by description also ended at low-water mark. The same can be said of the other Australian colonies. Thus the reasons given in the Canadian case are applicable to the circumstances of those colonies.

1. (1967) 65 D.L.R. (2d) 353, at pp. 365, 366, 367.

It has recently been decided by the International Court of Justice in the North Sea Continental Shelf Cases [1] that apart from international comity or convention the continental shelf viewed as an extension of the land mass of the coastal nation state appertains in the very nature of things to that national state. In giving judgment in a case involving the principles of demarcation of a continental shelf as between two coastal national states, the Court said this in relation to the assertion by one of the parties of a doctrine of a just and equitable share as a means of such delimitation:

19. More important is the fact that the doctrine of the just and equitable share appears to be wholly at variance with what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf, enshrined in art. 2 of the 1958 Geneva Convention, though quite independent of it, - namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted. Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is "exclusive" in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent. This may prove a sounder basis for the claim to the bed of the sea than the attempt made in the cases to which I later refer which relate the ownership of the bed to considerations which would support a claim to jurisdiction over the territorial waters. But, even if one accepts the view of the International Court of Justice and concludes that the extension beneath the sea of the land mass always appertained to the Imperial Crown, the territory of a British colony is not alienated from the Crown by the mere creation of a government for that territory. The colonial government's largest claim could only be to make laws for the peace, order and good government of the actual territory assigned by British authority as the territory of the colony. As I have said, it seems to me clear that in the case of the Australian colonies the territories were bounded by low-water mark on the respective coasts. Thus, accepting for present purposes this decision of the International Court, internationally the continental shelf naturally appertains to a nation as an international person. It is, therefore, on the footing of this decision, to the Crown in right of the United Kingdom that the natural rights over the seabed surrounding Australia originally belonged. These rights were never made available to any of the Australian colonies. But, if contrary to that decision of the International Court, the continental shelf did not of its very nature belong to what was the national state at the time of the creation of the colonies, and the rights to it now depend on convention, it is the Commonwealth which is the party to the appropriate convention.
    1. [1969] I.C.J. Reports 4.

Following Reg v Keyn [1] the Territorial Waters Jurisdiction Act, 1878 Imp (41 & 42 Vict. c. 73) was passed. It declared a jurisdiction in the Crown over the open sea to such a distance as is necessary for the "defence and security" of the realm. But its operative part was confined to conferring a jurisdiction upon the Admiral with respect to offences committed by aliens as well as subjects within what were described as "the territorial waters of Her Majesty's dominions" and defined as "any part of the open sea within one marine league of the coast" of the United Kingdom or the coast of some part of Her Majesty's dominions "measured from low-water mark". International comity then conceded a territorial sea, though its width may not have been firmly settled. Further, the bed of the sea for some undefined distance from the shore according to some authorities came to be regarded as vested in the Crown, so that accretion bringing into existence land above the tidal level within the territorial waters was regarded as vested in the Crown: see Fitzhardinge (Lord) v Purcell [2] ; Lord Advocate v Clyde Navigation Trustees [3] ; Lord Advocate v Wemyss [4] ; Secretary of State for India v Chelikani Rama Rao [5] , is an instance of the application of those cases. It should be noted, however, that according to those cases, it was the Imperial Crown in whom the "ownership" vested.

1. (1876) 2 Ex. D. 63. 2. [1908] 2 Ch. 139. 3. (1891) 19 Rett. 174. 4. [1900] A.C. 48. 5. (1916) 85 L.J.P.C. 222.

But the terms of the Territorial Waters Jurisdiction Act, in my opinion, suggest that the Parliament of the United Kingdom was intending in passing it to take advantage of international comity, rather than to assert and implement a territorial claim to the bed of the sea. The "sovereignty" of the United Kingdom over such waters was that which might internationally be recognized. In 1878, the year of the passing of the Territorial Waters Jurisdiction Act, the international situation rested on comity but now it is to be found expressed in the Convention on the Territorial Sea and the Contiguous Zone signed at Geneva on 29th April 1958 (Australian Treaty Series, 1963, No. 12, p. 3). But, if contrary to my own impression, the Territorial Waters Jurisdiction Act was based upon a claim to territorial ownership of the seabed below the territorial waters the claim was one made by and for the benefit of the Imperial Crown.

By reason of the Colonial Courts of Admiralty Act, 1890 Imp (53 & 54 Vict. c. 27), the Colonial Courts of Admiralty could exercise the jurisdiction of the Admiral not limited to the waters contiguous to the colony which created the court thus vested with Admiralty jurisdiction but generally: see Union Steamship Co (NZ) Ltd v Ferguson [1] . Further, the jurisdiction thus exercised by the Colonial Courts of Admiralty was not in any sense a jurisdiction derived from or in any wise appurtenant to the colony. By s. 2 (4) of the Colonial Courts of Admiralty Act, any jurisdiction exercised in relation to "matters arising outside the body of a county or other like part of a British possession" was declared to be derived exclusively from the Colonial Courts of Admiralty Act, that is to say, it was necessarily the jurisdiction of the Admiral. Further, the limitation of jurisdiction to that of the Admiral in the proviso to s. 3 of that Act is significant. So far as offences were concerned s. 7 of the Territorial Waters Jurisdiction Act defined "offence" as used in that Act as "an act, neglect, or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force". The territorial waters described were thus the territorial waters of the Imperial Crown and quite clearly, in my opinion, not territorial waters of non-independent and non-sovereign colonies of the Crown. Jurisdiction in and over them was never transferred or vested in the colonial governments. Indeed, as I have indicated, the Colonial Courts of Admiralty Act emphasized that it was not. It does not seem to me that the grant of autonomy in the government of the colony to its residents in any wise altered this situation. The rights in the territorial waters were those of the Imperial Crown and the jurisdiction exercised in respect of those waters as such and by whomsoever exercised was the jurisdiction of the Admiral.

Of course, the colonies were competent to make laws which operated extra-territorially - that is to say, beyond their land margins and in and on the high seas, not limited to the three-mile belt of the territorial sea. But this legislative power of the colony was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony: Croft v Dunphy [1] and Broken Hill South Ltd v Commissioner of Taxation (NSW) [2] . In my opinion such laws could not be justified as to their operation in the area of the territorial sea merely by the fact that they so operated, that is to say, by treating that area of sea as if it were part of the territory of the colony. In any case any curial jurisdiction exercised in respect of matters occurring beyond the land margin was that of the Admiral (Colonial Courts of Admiralty Act, s. 3 (4)). Nothing in the Colonial Boundaries Act, 1895 Imp (58 & 59 Vict. c. 34) made any change in this situation. That Act, so far as relevant, merely confirmed the colonial boundaries whatever they were, as they existed at that time.

In my opinion, therefore, the territorial limits of an Australian colony at federation did not include any part of the territorial sea or the seabed subjacent to it. Federation did not increase those territorial limits so that since federation the territorial limits of a State are to be found at the low-water mark on its coasts.

The passing of the Commonwealth of Australia Constitution Act (63 & 64 Vict. c. 12) by the British Parliament in 1900 did not make Australia either a nation internationally or independent, though clearly it was a major step towards each. At some point at or since the passage of the Statute of Westminster Imp in 1931 implementing the Balfour Declaration, Australia did become an independent nation state. Though it is difficult to pinpoint precisely the time at which this occurred, it is certain that Australia was such a nation state at the time of the making of the Convention on the Territorial Sea and the Contiguous Zone.

I find no need here to discuss the effect of Australia becoming a party to the Convention on the Territorial Sea and the Contiguous Zone or to the Convention on the Continental Shelf (Australian Treaty Series, 1963, No. 12, p. 24). I notice in passing the terms of the definition of the declared fishing zone in s. 4 of the Act as amended in 1967 seem to indicate that the draftsman has supposed that there are now Australian territorial waters fixing, internationally, Australian territorial limits. Undoubtedly these conventions now enure for Australia's benefit. The question of when and how the interest of Great Britain in such waters and in the continental shelf, if the full implications of the decision of the International Court of Justice be accepted, ceased need not be pursued. Nor is it necessary for me to consider the extent of the legislative power of the Commonwealth, if any, derived from the "sovereignty" over the territorial sea which the Convention recognizes; nor the extent of the legislation which the Commonwealth could pass in relation to the territorial sea by reason of its external affairs power: see s. 51 (xxix.) of the Constitution. Whatever laws it could validly pass would, of course, be paramount by virtue of s. 109 of the Constitution over any inconsistent State law passed for the peace, order and good government of the State.

It is noticeable that in s. 51 (x.) the expression is not "beyond the territorial limits of the States", or "beyond the territorial limits of the Commonwealth": but simply "beyond territorial limits". If the expression in s. 51 (x.) were construed as referring either to the territorial limits of a State or to the territorial limits of the Commonwealth as they were in 1900, I should feel bound to hold that the legislative power of the Commonwealth under s. 51 (x.) extends to fisheries within territorial waters as well as to fisheries within the high seas beyond them, unless some inaccurate meaning is given to the expression "territorial limits of the State", or "of the Commonwealth" because of a then current misconception. This course, as will appear, I am prepared to follow in relation to the terms of the proclamation. But, in my opinion, the expression "beyond territorial limits" should not be so construed: there is no need to place an imprecise meaning on the words of the constitutional provisions. If, as I think, the "sovereignty" over the territorial waters recognized by international comity was that of the Imperial Crown, it would be natural enough to refer to the territorial waters as within the territorial sovereignty of Her Majesty, as the Parliament of the United Kingdom did in the Territorial Waters Jurisdiction Act: see definition of the territorial waters of Her Majesty's dominions in s. 7 of the Act.

It would therefore, in my opinion, have seemed to be an acceptable denotation of the territorial limits of Her Majesty's Imperial dominions to include the territorial waters of the sea adjacent to any part of Her Majesty's dominions; and to refer to the external limits of those waters as "the territorial limits", i.e., of the Imperial dominion. In my opinion, this is the construction to be given to the expression "territorial limits" in s. 51 (x.). It is a reference to the territorial limits of Her Majesty's dominion; that is to say, a reference to the Imperial territorial limits. "Beyond territorial limits" within the meaning of s. 51 (x.) is, in my opinion, an area of the open sea which is not "within one marine league of the coast measured from low water mark".

I think there are two other reasons why the "territorial limits" referred to in the paragraph of the Constitution cannot be construed as the territorial limits of the States or as the territorial limits of the Commonwealth. In the first place it is apparent from the terms in which the constitutional power is expressed that it is not intended to comprehend all Australian waters within its ambit; but only those Australian waters beyond some specific point. To fix that point at the seashore by taking the expression "territorial limits" to be referring to the territorial limits of the States or of the Commonwealth as they existed or would exist at the time of the creation of the Constitution, would require that the inland waters of the continent, including those of Tasmania, be regarded as Australian waters. Whilst I do not think this is an impossible view, I think it an unlikely view. The enclosed waters of the coast and the inland rivers are, in my opinion, more properly regarded in a federal Constitution, particularly where the residue of legislative power is retained in the constituent States, as waters of the respective States. In my opinion, Australian waters are the waters of the open sea which wash the shores of the Australian continent and Tasmania and thus exclude waters of a kind which in England would have been regarded as within the body of a county. Therefore some point or line other than the seashore must be selected to divide that part of Australian waters which is within the description of the section and that part which is not. As I have indicated I think that line is the actual margin of what was the Imperial territorial sea.

The second reason is that looking at antecedent legislation affecting the Australian colonies it is apparent to my mind that there existed a widely held view that in some unspecified manner, the colonies had each acquired a territorial sea of their own over which they exercised the sovereignty which by international comity was recognized in coastal nation states. In s. 15 of the Federal Council of Australasia Act, 1885 Imp, the Federal Council of Australasia was given legislative authority with respect to, amongst other things:

(c) Fisheries in Australasian waters beyond territorial limits:

(f) The enforcement of criminal process beyond the limits of the colony in which it is issued,

(g) The custody of offenders on board ships belonging to Her Majesty's Colonial Governments beyond territorial limits.

I do not think much can be taken from the difference in expression between pars. (c) and (g) on the one hand and of (f) on the other. The Federal Council in 1888 passed The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act. In the recitals reference is made to the "territorial waters" of Queensland and to fisheries within the "territorial jurisdiction of Queensland" - a reference which having regard to the subject matter cannot be a reference to inland waters. "Australasian waters adjacent to Queensland" are defined as "All Australasian waters within the limits" of a schedule - to which I shall later have cause to refer - "exclusive of waters within the territorial jurisdiction of the Colony of Queensland".

In 1889 the Federal Council passed The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act. Again, in the recitals, reference is made to "the territorial waters of that Colony" and to vessels which are employed in pearl shell fishing both within and beyond the territorial jurisdiction of Western Australia. "Australasian waters adjacent to Western Australia" are defined as "All Australasian waters within the limits" of a schedule to which I shall later refer "exclusive of waters within the territorial jurisdiction of the Colony of Western Australia". The idea that the colonies had territorial waters specifically under their authority as such, as distinct from a plenary legislative power to make laws for the peace, order and good government of the colony which would authorize some legislation to operate in and over the adjacent high seas, was for the reasons I have indicated, a misconception. Indeed, this misconception has persisted in the Act itself for the draftsman seems to have thought that a territory of the Commonwealth has a territorial sea of its own so that the territorial limit of the territory may be regarded as extending to three nautical miles offshore. This it seems to me cannot be so, even if as I think due to various events the Commonwealth itself now has sovereignty over the territorial seas internationally recognized.

Accordingly, in my opinion, the constitutional power does not extend to fisheries within three nautical miles of the seashore. The Act itself repeats the constitutional formula and thus raises no problem derived from any possible deviation of the statutory description from the terms of the constitutional power. The Act therefore is itself clearly valid though it merely shifts the problem to the terms of the proclamation.

I ought, I think, to add that the exclusion of the first three nautical miles of coastal water from the Commonwealth legislative power with respect to fisheries as granted by s. 51 (x.) 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 determination upon a fishing vessel of the point at which it passes out of or into the area of water within the three-mile belt must be, to say the least of it, exceedingly difficult if indeed at all possible in practical terms. There may have been much to be said for the view that the legislative power with respect to all fisheries in all Australian waters should have been vested in one authority, particularly as those waters wash the shores of all the States and no "inter-State" boundaries in the waters around Australia are readily definable in a practical sense by those who fish in the sea. But, I do not think that the Constitution evidences an intention to do so and as I have said, I do not think it does so.

Australian waters beyond territorial limits is thus an area of the open sea having its shoreward margin one marine league from the Australian coast. I shall return to consider whether the proclamation confines the proclaimed waters to that inner margin. But first I will examine whether the outer limit of the proclaimed waters exceeds the bounds of Australian waters within the meaning of s. 51 (x.) of the Constitution and s. 4 of the Act. What I have so far concluded disposes of the defendant's submission that Australian waters beyond territorial limits are confined to the territorial sea recognized by international law. But the defendant's submission that in any case such waters do not extend so far as the seaward margins of the area of the proclaimed waters remains for consideration.

The matter to be decided in this connexion is the meaning of the words "Australian waters" in the constitutional provision s. 51 (x.). Both the connotation and the detonation of "Australian waters" is thus a matter for this Court exclusively. It is not a matter which can be decided by the Executive. Consequently there is no room here for the tender or the acceptance of a certificate of the Executive as to the status of any waters surrounding Australia in relation to the constitutional power.

However, as the Act operates by virtue of the Governor-General's proclamation under s. 7, the Executive must in the first place make a judgment as to the area of water which it deems it necessary or convenient in the interests of Australia to bring under the provisions of the Act for the control and operation of fisheries, a judgment which is entirely a matter for the Executive; and also form some opinion as to the area of water which may properly fall within the constitutional and statutory description of Australian waters. This latter opinion is not binding upon the Court though it is not, in my opinion, entirely irrelevant to the Court's consideration of the denotation of Australian waters in relation to a proclamation under the Act.

In my opinion, the framers of the Constitution doubtless had in mind the enactments to which I have made reference and were providing in s. 51 (x.) a legislative power to enable the Commonwealth to protect and regulate fisheries, which included, as of 1900, whaling, in which Australians may yet desire to operate. The possible participation of foreigners in those fisheries must also have been in mind. But, in my opinion, it is not Australian waters for the purposes of fishing which could be exclusively in mind in the construction of the constitutional provision. Australian waters for all Australian purposes are, in my opinion, comprehended in the description "Australian waters" in par. (x.) of s. 51. Accordingly, when the question of the extent of Australian waters for constitutional purposes is being considered it is necessary, in my opinion, to envisage Australian interests not only in fisheries but in defence and in commerce, particularly floating commerce, generally. None the less the physical contiguity of the high seas to the Australian continent, always treating the island of Tasmania as part of that continent and to the Territories of the Commonwealth must form a principal reason for the inclusion of an area of those high seas in the description "Australian waters".

I have already referred to the two Acts passed by the Federal Council in connexion with pearl shell and beche-de-mer fisheries. The schedules to those Acts describe Australasian waters for the purposes of the respective Acts as an area of the waters of the open sea which extend in the case of the Act relating to Queensland to a distance of some 140 miles from the Queensland coast and in the case of the Act relating to Western Australia at the point of greatest extension to a distance of some 450 miles from the coast of Western Australia. Of course, these waters related specifically to fisheries of a particular kind which were then already, or thought then likely to be, exploited by residents of one of the colonies; and in the case of Queensland, the appropriate area of water was complicated by the existence and location of the Great Barrier Reef. But each schedule is illustrative of a concept of Australasian waters which extended so far seaward as to enable protection to be afforded to fisheries which the colonists might wish to exploit. The Federal Council did not pass any Act concerning Australasian waters which were closer to the colony of New Zealand than to one or more of the Australian States. But it is not without present significance that the concept of Australasian waters did include waters in which both the Australian colonies and the colony of New Zealand were interested. Thus a great part of the Tasman Sea must have been considered as within the denotation of Australasian waters for the purposes of the Federal Council.

In 1888 the Parliament of the United Kingdom passed an Act to be known as the Imperial Defence Act, 1888 Imp (51 & 52 Vict. c. 32). In the recitals in the preamble to the Act, it was said that the governments of the United Kingdom and of the Australian colonies and of the colony of New Zealand had recognized the need for increased naval protection of "the floating trade in Australasian waters". The Act ratified what was described as "the Australasian Agreement", scheduled to the Act, which provided for the establishment of a naval force to be provided and maintained jointly by the governments. For the purposes of the Act and the Agreement, an Australian station was delineated in a schedule to the Agreement. The area of the waters of the open sea, comprised within the limits of this station extended on the east coast to longitude 160° W, to the west to longitude 95° E, to the north to latitude 10° S up to 130° E longitude and then by stepped lines to latitude 12° N. On the south it stretched to the Antarctic Circle. The limits of this Australian station thus very substantially exceeded the area of the proclaimed waters.

Lastly, in this connexion, the Court was furnished at its request and with the consent of the parties with a chart of the land masses and the oceans lying between longitude 20° W and longitude 30° W. The continent of Africa below latitude 20° N and the whole of South America were included in the chart. The limits of the proclaimed waters were also shown around Australia on this chart. The association of these waters with Australia and their considerable disassociation with any other countries other than Portuguese Timor and Indonesia were thus clearly manifest. Also the relativity of the area of the proclaimed waters to the oceans in which Australia is set is apparent.

There is, in my opinion, no reason why waters should not for Australian constitutional purposes be considered Australian waters though for its own domestic and for that matter international purposes part of those waters may be regarded by another nation as its own waters.

With these considerations in mind, I have studied the charts with which the Court was provided during argument as well as maps in globular form and in single plane projection. It is evident that the proclaimed waters are not merely contiguous but of particular interest and concern to Australia. The breadth of these waters relative to the surrounding oceans is small and certainly not disproportionate to the Australian interests to be served.

Having regard to concepts evidently current in 1900 as to Australasian waters and their extent and to the interest of Australia in the fisheries, including whaling, actual or potential about the Australian coast and the other commercial and security interests of Australia in the adjacent waters, I have no doubt that "Australian waters" as envisaged by s. 51 (x.) extends at least as far seaward from the Australian coast as the limits of the proclaimed waters. The denotation of Australian waters will not, in my opinion, be static and will extend for example as the capacity to exploit fisheries yet further afield develops with increased technology. But the inner limit of three miles offshore as the Imperial territorial limit as in 1900 will, in my opinion, remain static, whatever changes may take place in administration, understanding, comity and convention.

I turn now to the final point touching the validity of the proclamation with which I have found some difficulty. The question is whether the proclamation has confined the inner limits of the proclaimed waters to the constitutional inner limit three nautical miles offshore. The metes and bearings set out in the proclamation use the coastline as the inner boundary. The proclamation excludes from the waters enclosed within this described area "waters that are within the territorial limits of a State". As will have appeared from what I have so far written, I have concluded that the "territorial limits" to which the constitutional power (s. 51 (x.)) refers were not the territorial limits of any State or of the Commonwealth. They were the Imperial territorial limits. The territorial limits of a State or Territory would be the coastline at low-water mark. In strict legal parlance, waters within the territorial limits of a State or Territory, are, in my opinion, the "inland waters", comprising the waters within estuaries, enclosed bays and the inland rivers. This it seems to me is so as a matter of law whether one is speaking of the State as a political entity or as a geographical unit. If this meaning be given to the description "waters within the territorial limits of a State" in the proclamation, quite clearly the proclamation would be void as embracing a larger area of water in the proclaimed waters than is permissible. Because the Act merely repeats the constitutional description in the relevant part of the definition of Australian waters the proclamation would exceed the statutory authority given by s. 7. It would include the three nautical miles of the territorial sea, which, in my opinion, are excluded from the scope of the constitutional power and the statutory definition by the expression "beyond territorial limits". But the excess of the proclaimed waters on that view would be immediately curable by a fresh proclamation.

However, quite clearly the draftsman of the proclamation did not intend to include waters which were not included in the constitutional and statutory description. Both by the form of the Act (see s. 4) "Australian waters" and the form of the proclamation itself, the intention clearly was to keep within the constitutional power however much or little it might comprehend. But even more significantly the inland waters were not comprised within the area described by metes and bearings. It was from this described area of water that the draftsman of the proclamation meant to make an exception.

As I remarked earlier, in my opinion, there has been a misconception in the minds of the law officers of the colonies, of the States, and now I think of the Commonwealth. It has been thought that the colonies had a territorial sea which was a colonial territorial sea as distinct from an Imperial territorial sea. The concept has been carried down into the State and Commonwealth sphere after federation. Indeed, in the case of the Commonwealth it has extended so far as to include a territorial sea as appurtenant to and as part of each Territory of the Commonwealth. In the case of the Northern Territory, the supposition may have been that the State of South Australia had a northern territorial sea which remained as a territorial sea appurtenant to the ceded territory when Northern Territory became a Commonwealth Territory. I have indicated my view as to the position of the colonies and the States in this regard. In any case I find nothing in the instruments by which the Northern Territory was transferred to the Commonwealth which would justify such an assumption; see the description of the Northern Territory in the definition in the agreement scheduled to the Northern Territory Acceptance Act 1910-1919 Cth. As I have mentioned earlier at some point of time but certainly by the time the Commonwealth became a party to the Convention on the Territorial Sea the Commonwealth acquired "sovereignty" in the territorial sea around the whole of Australia and its territories, and the subjacent soil so that the territorial limits of Australia accepted internationally extend beyond the land mass of Australia and its territories to a point, as of this time, at least three nautical miles seaward of the shores of Australia and its territories. But that "sovereignty" has not been passed away from the Commonwealth so far as I can discover. However, this is not the question here. The question is whether the words of exception in the proclamation can be read as referring to an area of waters between the coastline and three nautical miles therefrom. As I have said, I feel confident that it was the intention of the writer of the proclamation so to provide. But, though a misconception, the evident existence of the idea of a territorial sea of a colony which set its territorial limits is, I think, relevant to the construction of the proclamation. It is not an area where thinking it so may make it so: but the existence of the misconception may aid the construction of the statutory instrument. Bearing in mind this evident misconception and the other indications I have mentioned, I have come to the conclusion, though not without considerable hesitation, that it is permissible to interpret the words of exception in the proclamation as intending to describe an area of waters confined in the three-mile belt. Consequently, so construing the proclamation, I conclude that the proclamation does not include waters which are not within the ambit of the constitutional power or of the definition of the Act.

The last submission of the defendant was that to legislate to control fishing was not to make a law with respect to fisheries. The point needs no discussion for, in my opinion, it completely lacks substance. The most direct way to protect a fishery is to regulate how and to what extent waters may be fished.

In my opinion, the complaint has been made out. The defendant should be convicted and the proceedings remitted to the magistrate to impose an appropriate penalty.

I think the submissions of the defendant in this case fail.

The subject of the legislative power vested by s. 51 (x.) of the Constitution in the Parliament is "Fisheries in Australian waters beyond territorial limits".

In the Federal Council of Australasia Act, 1885 Imp the expression "Fisheries in Australasian waters" occurs: see s. 15 (c). In that Act the expression "Australasian waters" denoted the territorial seas and the oceans around and about the coasts of the member colonies of the Federal Council. I think that this usage affords presumptive evidence that the expression "Australian waters" in s. 51 (x.) does not denote merely "Australian territorial waters" but it means the whole expanse of waters constituting the marine environs of Australia. The waters six miles east of the coast of New South Wales where the alleged offence was committed are therefore "Australian waters" within the meaning of that expression in s. 51 (x.). But it is necessary for the purposes of this prosecution that such waters should be "proclaimed waters" within the meaning of s. 4 of the Act. It is argued that the area defined by proclamation is in certain regions so remote from Australia as not to be capable of being described as "Australian waters" and that therefore the proclamations are invalid. It is a matter for the discretion of Parliament to select such area of "Australian waters" as it thinks fit over which to apply laws enacted under s. 51 (x.). Further it is within this power for Parliament to delegate to the Executive the exercise of this discretion as it has done by s. 7 of the Act.

The plan in evidence shows the area of the oceans surrounding Australia which the Governor-General has declared to be "proclaimed waters". I think it is right to take the view that there are no waters so little connected with Australia or so distant in this area as to lead the Court to hold that the area defined by proclamation is based on an excessive estimate of the extent of "Australian waters".

I am of opinion that no provision of the Act, which the defendant attacks as not being within power, is ultra vires.

It seems to me therefore that there must be a finding of guilty.

In a prosecution initiated in a New South Wales court of petty sessions and removed into this Court by an order under s. 40 of the Judiciary Act 1903-1966 Cth, the defendant stands charged with an offence under s. 13 (1) (e) of the Fisheries Act 1952-1966 Cth in that he did an act prohibited by a notice for the time being in force under s. 8 of that Act. That section provides, inter alia, that the Minister may, by notice published in the Gazette , prohibit the taking, from proclaimed waters, of fish, by equipment specified in the notice. The Minister by such a notice, dated 19th May 1961, prohibited the taking from "proclaimed waters" of fish, other than prawns, by an otter trawl-net the size of the mesh of which, measured in a specified manner, was less than three and a half inches.

The expression "proclaimed waters" is defined by s. 4 of the Act to mean Australian waters specified by proclamation in force under s. 7. That section authorizes the Governor-General to declare any "Australian waters" to be proclaimed waters for the purposes of the Act. The Governor-General by proclamation made on 30th November 1954, as varied by a proclamation made on 7th February 1956, had declared as proclaimed waters the waters, other than "waters that are within the territorial limits of a State or a Territory of the Commonwealth", contained within an area bounded by a line roughly following the general outline of the Australian coast, mostly between two and three hundred miles from the shore, but off the New South Wales coast digressing to include waters surrounding Lord Howe Island, off the Queensland coast making a large detour on an irregular course to the north to embrace the sea for varying distances to the south, east and north of the Territory of Papua and New Guinea as well as some small Queensland islands, and off the Western Australian coast making a small deviation to enclose waters around the Territory of Ashmore and Cartier Islands (administratively part of the Northern Territory): (see the Acts Nos. 60 of 1933 and 11 of 1938).

The parties are agreed that the defendant took fish, other than prawns, by equipment specified in the Minister's notice from waters forming part of the waters declared by the proclamation (as varied) to be proclaimed waters, and that the place where he did so was approximately six and a half nautical miles off the coast of New South Wales.

The first question to be decided is whether the waters described in the proclamation (as varied) are wholly "Australian waters" within the meaning of s. 7; for unless they are the proclamation was not authorized by the Act, the prohibition in the Minister's notice had no legal force and the defendant's admitted conduct constituted no offence. If the answer to that question be yes, a constitutional question arises, namely whether it is within the powers of the Parliament to create an offence of taking fish by specified equipment in the waters so described.

The first question requires consideration of the definition of Australian waters in s. 4 of the Fisheries Act. The expression is there defined to mean -

(b) the waters adjacent to a Territory and within territorial limits; and

(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits.

Paragraph (a) of this definition is a simple repetition of words from s. 51 (x.) of the Constitution, which empowers the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to "fisheries in Australian waters beyond territorial limits"; and the inference seems clear that the words are intended to bear the meaning they have in the Constitution. The argument we have heard accepts that this is so and proceeds to raise three questions. The first relates to the meaning of the word "fisheries" in the context of s. 51 (x.), the defendant contending that the reference is only to fishing grounds. Plainly enough, however, "fisheries", as a head of legislative power, means activities of taking fish and other marine products from the sea. The other and more serious questions relate to the meaning of the expressions "Australian waters" and "beyond territorial limits".

A submission was made for the defendant that the "territorial limits" of a country washed by the sea are considered by English law to be the baseline of low-water mark and across the mouth of each bay, gulf and estuary intra fauces terrae, and that therefore the expression "Australian waters" in s. 51 (x.) and par. (a) of the Fisheries Act definition should be understood as limited to waters to a distance of three marine miles seaward of those lines, that being the distance which was generally considered in international law in 1900 as the width of the off-shore area over which a country was entitled to exercise control as regards certain matters including fisheries. (As to the present state of international law on the subject, see the Fisheries Case, United Kingdom v Norway [1] .)

In my opinion this interpretation of "territorial limits" should not be accepted. It is true that in some of the judgments in Reg v Keyn [2] , and indeed by the actual decision in that case as interpreted in Harris v Owners of Franconia [3] , a distinction was drawn between, on the one hand, the area (to low-water mark and intra fauces terrae) as being territory over which a country's sovereignty extends and, on the other hand, the area of sea beyond low-water mark and within three miles therefrom as being territory over which the country enjoys internationally conceded authority while yet not forming part of the country itself. But even those who support the distinction are accustomed, as Lush J. pointed out in Reg v Keyn [4] , "by a convenient metaphor" to describe the latter area as the "territorial waters" of the country, and it seems but a natural continuation of the metaphor to describe the limits of the "territorial waters" of a country as its "territorial limits". Moreover, the view for which Reg v Keyn [2] is cited cannot be regarded as established: Attorney-General for British Columbia v Attorney-General for Canada [5] ; and indeed it may be that having regard to the judgment of the Privy Council in Secretary of State for India v Chelikani Rama Rao [1] , and notwithstanding what has been laid down for America in United States v California [2] , this Court should hold, if the question were to arise squarely for decision, that the seaward boundaries of the States are set by the three-mile rule: cf. Dr. Lushington's interpretation in The Johannes [3] , of "the limits of the United Kingdom", as used in the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104 Imp). A third possible view rests upon the proposition that even if neither sovereignty nor general legislative authority extends beyond low-water mark the authority of a littoral state to deal with certain special matters, including fisheries, was conceded in international law throughout the nineteenth century, and that the endowment of the Australian legislatures with plenary powers to make laws for the government of their respective colonies carried a power corresponding with that which the Imperial Parliament thus enjoyed by the law of nations: cf. in the case of a dominion Croft v Dunphy [4] . On any of the three views, the expression "Australian waters" in s. 51 (x.) of the Constitution, and consequently in par. (a) of the definition in the Fisheries Act, stands in a context sharply contrasting with that in which "British waters" was found in s. 544 of the Merchant Shipping Act, 1894 Imp (57 & 58 Vict. c. 60), and such a case as The Pacific [5] , is therefore not in point. Being used as comprehending waters beyond territorial limits, the expression must necessarily have a meaning to which the three-mile rule is irrelevant.

1. (1876) 2 Ex. D. 63. 2. (1877) 2 C.P.D. 173, 177. 3. (1876) 2 Ex. D. 63, at p. 239. 4. (1876) 2 Ex. D. 63. 5. [1914] A.C. 153, at pp. 174-175. 6. (1916) 85 L.J.P.C. 222, 7. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 8. (1860) Lush. 182 [ 167 E.R. 87]. 9. [1933] A.C. 156. 10. [1898] P. 170.

It seems clear that the Constitution was framed upon the assumption that the federating colonies had, and as States would continue to have, legislative power as to fisheries over some part of the waters washing their shores. From a mere reading of s. 51 (x.) the intention may, I think, be inferred that some law-making power in respect of a limited area of the sea belonged to the colonies and should be preserved to them as States of the Commonwealth, so that any colonial or State laws made in exercise of that power should not be liable to be superseded by federal laws on the subject of fisheries: see also s. 107. We have not to decide in this case whether the assumption was right or wrong, for the acts charged against the defendant were done outside the three-mile limit, and in view of the state of international law in 1900 and British general doctrine at that time on the subject of territorial waters it seems certain that no wider limit can have been in contemplation. But some historical considerations must be mentioned which put beyond doubt, in my mind, the correctness of the inference I have stated as to the intention of the words "beyond territorial limits".

Paragraph (x.) of s. 51 was carried into the Constitution, with the substitution of "Australian" for "Australasian", from s. 15 (c) of the Federal Council of Australasia Act, 1885 (48 & 49 Vict. c. 60 Imp). That Act had recited that it was expedient to constitute a Federal Council of Australasia for the purpose of dealing with such matters of common Australasian interest, in respect of which united action was desirable, as could be dealt with "without unduly interfering with the management of the internal affairs of the several colonies by their respective legislatures". By s. 15 (c) the Council was given legislative authority in respect of "Fisheries in Australasian waters beyond territorial limits". The last three words were, as I see it, a clear reflexion of the intention announced in the recital that the internal affairs of the colonies should continue to be managed by their own legislatures without interference from the Federal Council. By the time the Constitution of the Commonwealth was under consideration it was notorious that the expression "territorial limits" in s. 15 (c) had been generally taken to mean the limits of territorial waters. The Federal Council itself and Her Majesty's advisers in the United Kingdom had plainly shown that they so understood the expression. This appears, as regards the Federal Council, from the fact that under the authority of s. 15 (c) the Council had enacted The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888 and The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act of 1889, each Act using the expression "Australasian waters adjacent to" (the relevant colony) with an express definition of it to mean all Australian waters within limits described in a schedule, "exclusive of waters within the territorial jurisdiction" of that colony. Moreover the Acts contained recitals which reflected the assumption that the colonial legislatures had power to regulate fisheries within the limits of their territorial waters, and which show that those limits were taken to be "the territorial limits" referred to in the Imperial statute. It will suffice to quote recitals from the first of these Acts:

Whereas by certain Acts of the Parliament of the Colony of Queensland provision has been made for regulating the Pearl Shell and Beche-de-mer Fisheries in the territorial waters of that Colony: And whereas, by reason of the geographical position of many of the Islands forming portion of that Colony, vessels employed in such Fisheries are, in the prosecution of their business, sometimes within and sometimes beyond the territorial jurisdiction of Queensland:

And Whereas it is expedient that the provisions of the said Acts should extend and apply to such vessels during all the time during which they are so employed, and that for that purpose the provisions of the said Acts, so far as they are applicable to extra-territorial waters, should be extended to such waters by an Act of the Federal Council of Australasia.

The schedules to the Acts described limits which in places were a hundred miles and more, sometimes much more, from the coastline. Both Acts, being reserved for the Queen's assent, were in fact assented to; and it seems proper to infer that the Queen's advisers in the United Kingdom saw no excess of the Federal Council's powers in treating "waters within the territorial jurisdiction" of the colonies as synonymous with "waters beyond territorial limits". It will be remembered that the two Acts remained unrepealed at the time the Constitution was enacted, and that the seventh covering clause preserved them by preserving all laws passed by the Federal Council of Australasia and still in force.

It seems hardly conceivable that the very words of s. 15 (c) of the Federal Council of Australasia Act should have been employed in s. 51 (x.) of the Constitution and thence carried into s. 4 of the Fisheries Act, unless with the intention in each case that they should receive the same interpretation. Moreover, it is by construing "territorial limits" as meaning the limits of territorial waters, in pars. (b) and (c) as well as par. (a) of the definition of Australian waters in the Fisheries Act, that the significance of the difference between pars. (b) and (c) is found. The expression "waters adjacent to a Territory" cannot mean or include internal waters of a Territory, any more than the expression "waters adjacent to" Queensland and Western Australia respectively in the Acts of the Federal Council that have been mentioned meant or included internal waters of the colonies. They must refer to waters outside a Territory; and waters outside a Territory cannot be within "territorial limits" unless that expression refers to the limits of territorial jurisdiction. To recognize this is to see that par. (b) extends "Australian waters" so as to make the Fisheries Act an exercise by the Parliament of a part of its power under s. 122 of the Constitution to make laws "for the government of any territory", namely the part which in relation to the Territories corresponds with the assumed powers of the State Parliaments to regulate fisheries within "territorial limits" as part of their general powers to make laws for the government of their respective States; and likewise it is to see that par. (c) extends "Australian waters" so as to make the Act an exercise by the Parliament of a power which it asserts (rightly, on the authority of Croft v Dunphy [1] ) in right of a Territory not being part of the Commonwealth to regulate fisheries in waters the relation of which to the Territory corresponds with the relation of "Australian" waters (in the sense of s. 51 (x.) of the Constitution) to the Commonwealth.

I use the expression "the Commonwealth" here because it is the expression in par. (c) and what I have said flows from my understanding of "the Commonwealth" in that paragraph to mean the continent of Australia including Tasmania. Only upon that geographical interpretation of the expression is the enactment of par. (c) to be accounted for. The Northern Territory and the part of the Australian Capital Territory which the Commonwealth accepted by the Jervis Bay Territory Acceptance Act 1915 Cth were, at federation, each a part of a federating colony and so became a part of the Commonwealth. Indeed "a part of the Commonwealth" is the expression used in the second recital to the Northern Territory Acceptance Act 1910 Cth to describe "the Province of South Australia, including the Northern Territory of South Australia"; and that Territory was mentioned in s. 6 of the Commonwealth of Australia Constitution Act, 1900 Imp itself as one of "the parts of the Commonwealth". When these areas became Territories of the Commonwealth all formerly existing power of South Australia in the one case and New South Wales in the other to regulate fisheries in their territorial waters ceased, and was replaced by the corresponding power of the Commonwealth Parliament comprehended in the plenary power which arose in respect of those Territories under s. 122; but power to make laws with respect to fisheries in Australian waters beyond the territorial limits of those Territories belonged already to the Commonwealth Parliament under s. 51 (x.). This was not the case in regard to territories outside the continent, and therefore the operation of the Fisheries Act in respect of waters off their coasts and beyond the limits of the Commonwealth's powers in respect of them required a separate extension of the meaning of "Australian waters" for the purposes of that Act.

It seems proper in these circumstances to infer that the Parliament selected the expression "adjacent to a Territory" as being apt to describe waters having a geographical relation to a Territory corresponding with the geographical relation which "Australian" waters, in the sense of the Constitution, have to Australia. What that relation is it is necessary now to consider. In the expression "Australian waters" there is a vagueness of which the founders of the Constitution were acutely aware. This we know as a matter of history. But the expression was selected in the light of precedent and used in a familiar kind of context. The Federal Council of Australasia Act, 1885 Imp, had prefaced its provisions, as I have said, with a recital that it was expedient to constitute a Federal Council of Australasia for the purpose of dealing with matters "of common Australasian interest, in respect of which united action is desirable", and had conferred on the Council a power in respect of fisheries in Australasian waters beyond territorial limits as one of a list of matters considered to be of that description. Similarly the Constitution of the Commonwealth gave the Parliament a power to make laws with respect to fisheries in "Australian" waters beyond territorial limits as one of a list of topics to which its power to make laws "for the peace, order, and good government of the Commonwealth" should extend. In this context, it seems to me, the adjective "Australian" resembles the adjective "Australasian" as used in the description of those waters in which fisheries were a matter "of common Australasian interest", in that it connotes a propinquity or other physical relation sufficient to make the enactment of laws concerning fisheries in those waters a matter of natural relevance to the government of the Australian Commonwealth.

Precedent likewise accounts for the use of the word "adjacent" in the Fisheries Act and justifies our giving it a similar meaning. When the Acts of the Federal Council treated wide tracts of water off the shores of Queensland and Western Australia as Australasian waters "adjacent to" those colonies, it did so on the footing that the geographical relation of those tracts of water to Australasian coasts was such as to make them "Australasian waters", and to make the regulation of fisheries in them "matters of common Australasian interest". It is of the first importance to keep in mind that s. 51 (x.) of the Constitution confers a particular power as one of the collection of powers which are to belong to the Parliament for the peace, order and good government of the Commonwealth. It is also to be remembered that the Fisheries Act bears on its face the character of an exercise of that power together with a part of the power to make laws for the government of the Territories. The fundamental purpose in each statute being that of internal government, it seems to me that the descriptive expressions "Australian" and "adjacent to a Territory" must necessarily be interpreted as referring to waters which lie in such a physical relation to Australia in the one case and to a Territory in the other that by reason of that relation the regulation of fisheries in those waters is relevant or incidental to the government of Australia or the Territory. In particular cases the question of fact to which this general proposition gives rise may perhaps involve consideration of such matters as the conformation of the sea floor, the situation and nature of islands or reefs and distance from other lands, notwithstanding that at bottom it is not a question of comparative appropriateness as between regulation of fisheries by Australia and their regulation by any other country. But no doubt it will most often depend upon proximity to Australia and its Territories, as determining what parts of the sea may fairly be regarded as home waters in respect of the regulation of fisheries.

The concept, at once political and geographical, contains the notion that some areas of the sea are, because of their location, naturally to be considered objects of exploitation by means of fisheries as part of the primary production of Australia and its Territories, so that legislation for the regulation of fisheries in those areas, including provisions directed to the conservation and development of the resources of fish and other products in those areas, extra-territorial though such legislation may be called, is germane to the good government of Australia and the Territories. The concept does not, of course, enable a precise dividing line to be drawn, as on a map, so as to separate waters that are within it from waters that are not; but it is nevertheless, in my opinion, the touchstone to apply. It is not a concept which has anything to do with international relations, and therefore its application in a particular instance is not a matter upon which the courts should seek or accept the certificate of a Minister. Essentially the question in such an instance, being a question of the meaning and application of constitutional and statutory provisions, is for the courts to decide on their own responsibility in the exercise of federal judicial power, though the fact that the Executive, with all its facilities for the making of fully informed assessments of the relevant facts, has made such a proclamation as we have here to consider should by no means be put aside as an irrelevant or unimportant circumstance. A case may of course be imagined in which a court should hold that waters which the Executive, or even the Parliament itself, has treated as "Australian" or as "adjacent" to a Territory (in the sense that has been mentioned) are, as a matter of objective fact, not within these descriptions. The waters of the Persian Gulf, for instance, would necessarily be held incapable of falling within either of the expressions, even if the Parliament or the Executive should be found to have indicated a contrary view. But we have not here to consider such a case.

When the lines described in the Governor-General's proclamation of 30th November 1954, are traced upon a map of the world, and it is seen how close and distinctive is the physical relation of the enclosed waters to the Australian continent and Tasmania, to the islands off the coast which are politically Australian, to the Territory of Papua and New Guinea, and to the Territory of Ashmore and Cartier Islands, and how carefully the area is delineated to exclude all waters which, in a context referring to the self-government of countries in regard to fisheries, may fairly be thought to be Indonesian rather than Australian, the conclusion seems to me to admit of no doubt that in such a context every part of the area is naturally to be subsumed under the heading either of "Australian" waters or of waters "adjacent" (in a corresponding sense) to a Territory. Accordingly I am of opinion that every part of the waters described in the proclamation (as varied), waters within the territorial limits of a State or a Territory being excluded, falls within either par. (a) or par. (c) of the definition of Australian waters in the Fisheries Act, and that therefore the proclamation was within the authority of the Governor-General to declare any "Australian waters" to be proclaimed waters for the purposes of the Fisheries Act.

To the second question, whether a law creating an offence of taking fish by specified equipment in the waters described in the proclamation is within the powers of the Parliament, I have no doubt that the answer should be affirmative. From what I have already said the reasons will have sufficiently appeared for my opinion that such a law is authorized by the Constitution, that is to say by s. 51 (x.), as to a great part of the proclaimed waters and by s. 122 as to the rest.

The particular issue here is whether the defendant, a fisherman, can be convicted of an offence against s. 13 (1) (c) of the Fisheries Act 1952-1966 Cth for taking fish six and one-half nautical miles east of Barrenjoey Lighthouse by an otter trawl-net with a mesh smaller than that prescribed by notice under s. 8 of the Act. The matter of substance is whether s. 7 of the Act and a proclamation made thereunder are within the legislative competence of the Commonwealth under s. 51 (x.) of the Constitution, supported by s. 122. The place where it is alleged that the offence was committed is, without question, within the waters proclaimed under s. 7 and defined by a notice gazetted under s. 8.

By virtue of the proclamation waters extending up to 300 miles from the nearest coastline of Australia and its Territories have been proclaimed under s. 7. The proclamation is good if, but only if, the Parliament's power to make laws with respect to fisheries extends to the whole of the waters so proclaimed. The power of the Governor-General is to declare any Australian waters to be proclaimed waters for the purposes of the Act and the phrase "Australian waters" means, for the purposes of the Act:

(b) the waters adjacent to a Territory and within territorial limits; and

(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits.

The law, so far as it relates to the waters described in (a), is supported by s. 51 (x.) of the Constitution, so far as it relates to the waters in (b) by s. 122 and so far as it relates to the waters described in (c) by s. 51 (x.). I refrain, therefore, from considering any question relating to the authority of the Parliament under other sources of power over adjacent waters or the seabed beneath such waters. Likewise I refrain from considering the legislative power of the Parliaments of the States beyond the low-water mark except to the extent that reference to colonial power may be necessary to elucidate s. 51 (x.). All these important matters, so far as I am concerned, remain open for decision in a case in which the Court is required to decide, and has the benefit of argument directed to, some such question actually in issue.

The proclamation expressly excludes "waters that are within the territorial limits of a State". "Waters within the territorial limits of a State" I read as meaning waters which could also be described as the territorial waters of a State or, to use the language of the Acts of the Federal Council of Australasia, to be referred to hereafter as "waters within the territorial jurisdiction" of a State. In 1900 waters within the three-mile limit of the coast of a colony would be understood as the territorial waters of the colony. See Territorial Waters Jurisdiction Act, 1878 Imp, s. 7, in which "the territorial waters of Her Majesty's dominions means such part of the sea adjacent to the coast of the United Kingdom or the coast of some other parts of Her Majesty's dominions, as is deemed by International Law to be within the territorial sovereignty of Her Majesty". Upon federation such waters would be appropriately described as the territorial waters of the State and would, of course, become part of "Australian waters". Fisheries within such waters would not be within the power of Parliament by virtue of s. 51 (x.) of the Constitution because the waters would be Australian waters within territorial limits.

In this case it is not necessary to attempt to define exhaustively the limits of the legislative power conferred by the Constitution, s. 51 (x.). All it is necessary to decide is whether fisheries within the whole of the area proclaimed, except as to waters adjacent to a Territory and within territorial limits, are fisheries "in Australian waters beyond territorial limits". Fisheries in s. 51 (x.) means, I think, no more than waters where fish are to be found.

For the defendant it was argued that no waters beyond the three-mile limit are Australian waters. This submission I reject. It seems to me that it is impossible to read s. 51 (x.) as relating only to fisheries within the three-mile limit, i.e., the limit of territorial waters as understood in 1900. Australian waters are, I think, waters adjacent to Australia and its Territories and these waters s. 51 (x.) seems to me to put into two categories - those within territorial limits and those outside territorial limits. The proclaimed waters begin, in my opinion, at the three-mile limit, except with regard to waters adjacent to a Territory.

It was further argued that the waters proclaimed extend too far from the coast to fall within the description of Australian waters but I have no doubt that the whole of the proclaimed waters are waters adjacent to Australia. Australia is an island continent with Africa over 4,000 miles to the west and South America over 6,000 miles to the east. In comparison with distances of this magnitude a coastal strip of 300 miles is tiny. I have no hesitation in regarding it as well within the conception of waters adjacent to Australia and its Territories and so within the description of "Australian waters". It matters not, I think, that part of the waters so proclaimed could also be properly described as "Indonesian waters" because they are adjacent to Indonesia as well as to Australia.

My conclusions, both as to the inner limit of the waters in which fisheries are subject to the legislative power of Parliament and to the extent of such waters, are strongly reinforced by the circumstance that at the time of the establishment of the Commonwealth there were in existence two Acts of the Federal Council of Australasia, the validity of which was recognized by the Constitution Act, s. 7. These Acts defined areas extending 500 miles from the coast of Australia as "Australian waters" for the purposes of the Federal Council of Australasia Act, 1885, an Imperial Act which authorized legislation in respect to "Fisheries in Australasian waters beyond territorial limits". See The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888, and The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act of 1889. By these Acts "Australasian waters adjacent to Queensland" were defined as "All Australasian waters within the limits described in the Schedule to this Act, exclusive of waters within the territorial jurisdiction of the Colony of Queensland" and "Australasian waters adjacent to Western Australia" were defined as "All Australasian waters within the limits described in the Schedule to this Act, exclusive of waters within the territorial jurisdiction of the Colony of Western Australia". The schedule to these Acts, as I have already intimated, covered waters at least 400 miles from the coast. These Acts must be regarded as of great importance in the construction of s. 51 (x.) of the Constitution. They recognize that "Australasian waters" are waters adjacent to some part of Australasia and that waters at least 400 miles from the coast are within that description. They also recognize that waters within the three-mile limit fall within the description of "waters within the territorial jurisdiction of the Colony".

It was also argued that s. 7 of the Fisheries Act attempts unconstitutionally to vest judicial power in the Governor-General but, in my view, this argument is untenable.

Accordingly, my conclusion is that s. 7 of the Fisheries Act 1952-1966 and the proclamation thereunder are valid.

What is the meaning and effect of s. 51 (x.) of the Constitution by which the Commonwealth Parliament is empowered to make laws for the peace, order and good government of the Commonwealth with respect to "fisheries in Australian waters beyond territorial limits"? That is the primary question.

The argument for the defendant sought to give the word "fisheries" a narrow meaning - I am not sure that I understood exactly what meaning - and to exclude control of fishing operations from the constitutional power. But that proposition surely cannot be right. In law a fishery means, and since the Middle Ages - when the word appears as pescharie, or peskerye or with other spellings, or as piscary - it has meant the right or liberty, of the public or a particular person, of fishing in specified waters. When that is understood, it is apparent that the constitutional power is to make laws defining rights of fishing in Australian waters. It follows that the power enables the Parliament to prescribe conditions for the exercise of the right or liberty. I can see no basis at all for the suggestion that provisions prescribing the size of fish that may lawfully be taken, or nets that may lawfully be used, are not laws with respect to fisheries. Such laws have for centuries past been a common feature of the statute law of England governing fisheries. Perhaps the earliest of these Acts is the statute 13 Edw. I c. 47, enacted in 1285. It prohibited the taking of young salmon in certain seasons. In 1423 came the prohibition, by 2 Hen. VI c. 15, of fastening nets over rivers "saving always to every of the King's liege People, their Right, Title, and Inheritance in their Fishings in the said Water". In 1558 the taking of fish of less than certain prescribed sizes was prohibited; and fishing nets were required to have meshes "two Inches and a Half broad": 1 Eliz. I c. 17. I cite these as examples of the many early statutes which could unquestionably be called laws with respect to fisheries. They are matched by many statutes of the same character in modern times. The present-day legislation of the United Kingdom regulating methods and practices of fishing at sea is described in the article "Fisheries", in Halsbury's Laws of England, 3rd ed., vol. 17, at p. 373 et seq. In Australia matters of the same sort have been dealt with by State statutes called Fisheries Acts. One of the earliest was the Fisheries Act of 1865 of New South Wales, 28 Vict. No. 10.

I have no doubt that the Commonwealth power with respect to fisheries extends to the control and regulation of fishing operations, by, among other things, prescribing what kinds of fish may be taken, from what grounds, at what times, of what sizes, in what quantities and by what methods, tackle or equipment.

The serious question in the case is not what activities may be prohibited by virtue of a power over fisheries, but what are fisheries in Australian waters beyond territorial limits. This involves questions of constitutional law. It involves the relationship of the Commonwealth and the States under the Commonwealth Constitution. It involves too the position of the Commonwealth as a nation. That leads on to some aspects of international law, so far as that impinges upon Commonwealth municipal law and can aid or affect the interpretation of the Constitution.

The arguments which we heard were directed to the extent of Australian waters. For the defendant it was contended that the Commonwealth power over fisheries did not reach beyond three miles from the coast: alternatively it was said that, if it did, it did not extend over the whole area of the high seas covered by the Governor-General's proclamation, which should therefore, it was urged, be held invalid.

At the back of the case, as thus presented, there were, it seemed to me, two questions. The first is whether the phrase "Australian waters beyond territorial limits" means Australian waters which are beyond the territorial open sea, as understood in international law: or whether, on the other hand, it means Australian waters beyond the limits of the land as understood by the common law. The other question, which I shall consider first, is as to the legal nature of the right which a country has in its territorial sea.

In 1900, when the Constitution was enacted, the expressions "territorial sea" and "territorial waters" were well known as meaning the open marginal sea within three miles of a national coastline. Some nations consider their territorial seas to be wider than that. But British and Australian doctrine and practice has, up to the present, accepted the marine league as the width of the territorial sea for most purposes.

What is the juristic nature of the rights which a nation has in these territorial waters is a question which has been much debated by text-writers. In his work, The International Law of the Sea, 6th ed. (1967), pp. 88-89, Doctor Colombos said:

The nature of the right of a State over its territorial waters is viewed in various ways by publicists; with some it is an actual ownership (dominium) because it implies in certain cases an exclusive enjoyment very characteristic of ownership, especially in the matter of fishing and pilotage; others treat it as a right of limited sovereignty conferring only a right of jurisdiction on the littoral State. There is an embarrassing abundance of contradictory opinions of text writers, an almost complete absence of case law and a varying and conflicting practice by States on this subject. The argument goes back to Grotius. It invokes the distinction he made, which is still made by writers in the civil law countries, between "dominium" and "imperium" - a distinction which for common lawyers is imprecise, or blurred, because they cherish concepts of all land tenures as derived in feudal theory from the Crown. In quite recent times the topic has assumed a new importance. The debate is no longer of merely academic importance as a matter of juristic theory. The discussion has extended beyond questions of sovereignty over the seas, and beyond property in whales and fishes taken from the sea, or in oysters and pearl shell taken from the seabed. International law has moved on. National interests and claims have moved outwards. Nations have become interested in the continental shelf and what is there, in the subsoil of the seabed, in the ownership of minerals and oil there, and of submerged, or partly submerged, coral reefs, especially those that, using Lord Stowell's metaphor in the case of The Anna [1] , form "a kind of portico to the mainland". New technologies and new equipment for both fishing and mining have given a new vitality to old legal theories. Important new international agreements and conventions resulted from the Geneva Conferences in 1958 and 1960; and from these have come developments in relevant municipal law by statutory enactments in many countries: in Australia there is the Continental Shelf (Living Natural Resources) Act 1968 Cth. Withal, there have been new editions of old textbooks, and scholarly monographs by learned persons in various countries, not always unanimous. I should add here that since we heard this case the International Court of Justice delivered its judgment in the North Sea Continental Shelf Cases. 1. (1805) 5 C. Rob. 373 at p. 385 c [ 165 E.R. 809, at p. 815].

However, I do not think that the decision in this case really depends on these topics of newly-discovered importance. It is not that I do not appreciate that there is a relationship between questions of the title to the bed of the ocean and the right to fish in ocean waters. There is, and it has long been noticed by English law. It was strikingly stated by Hale in Ch. IV of De Jure Maris: but Hale wrote when the King claimed a right over the whole of the narrow sea. "In this sea", he said, "the King of England hath a double right, viz. a right of jurisdiction which he ordinarily exerciseth by his admiral, and a right of propriety or ownership." That claim has been long since abandoned. It had indeed been discarded from the common law long before the decision in Reg v Keyn [2] . Now, notwithstanding the obvious physical relationship, and the generally assumed legal relationship, between ocean waters and the earth beneath them, I think that what are Australian waters for the purposes of the Commonwealth power over fisheries can be decided without any final pronouncement concerning proprietary rights and interests in any part of the bed of the ocean, whether the continental shelf or some narrower belt from the land. Moreover the present case must be decided by the law of Australia, not by recourse to doctrines of international law, except so far as they have been taken into and become part of the law of the land. Looking at the case in the way that I think a common lawyer should, and resisting the temptation to decide where doctors disagree, I doubt whether anything is to be gained by preferring one to the other of the several juristic analyses which have been offered of the nature of a nation's rights in the territorial sea. These may be found conveniently set out and usefully considered by Professor O'Connell in his International Law (1965), vol. 1, pp. 533-542. But the topic cannot be put completely aside in considering what is meant by the words "Australian waters beyond territorial limits". The concept of national sovereignty, as understood in international law, may seem an intruder into what is ultimately a question of statutory interpretation, of the meaning of words in the Constitution. But there are, in my view, several reasons why it cannot be altogether overlooked. One is that s. 51 (x.) of the Constitution is a provision of an Imperial statute, enacted in 1900, demarking Commonwealth legislative powers from those of the States. It must be read vis-à-vis an examination of the jurisdiction of the States in respect of the sea. Professor O'Connell brought to light some complexities in the learned article, "Problems of Australian Coastal Jurisdiction", he contributed to the 1958 British Year Book of International Law. In substance, and brought up to a later date, it is now to be found as Ch. XI of the book International Law in Australia. I acknowledge my indebtedness to this article, adding that I have studied too the criticisms of it, and comments on the same topic, which have appeared in several Australian university law reviews. I shall state later my own conclusions on the legal provinces of the Commonwealth and the States in relation to the open sea and fisheries there, so far as that is relevant in this case. At this point I say only that I do not think that the area of Commonwealth power with respect to fisheries under the Constitution is to be determined by seeking to define the bounds of "Australian waters" independently of the context "fisheries".

"Australian waters" is, no doubt, a geographical expression; but it is not a term established and known to geographers as a description of a part of the open seas by the name of an adjacent land - like for examples the South China Sea, the Indian Ocean, the Gulf of Mexico, the Arabian Sea. The words "Australian waters" denote, no doubt, a definite area of ocean, to which the power to legislate with respect to fisheries pertains and to which at any given time it is confined. But the extent of these Australian waters was not fixed by the Constitution. The denotation of the words today was not determined permanently by their denotation in 1900. That is because they were not, and are not, a purely geographical expression: they are a geographical term with a political connotation. They must be read, in s. 51 (x.), as governed by their relationship to fisheries. They there designate what may be called Australian fishing waters. They do not designate an area of the ocean where for all purposes Commonwealth law holds sway. The power to legislate for fisheries in Australian waters does not make those waters a "part of the Commonwealth" within the meaning of s. 5 (in the covering clauses) of the Constitution Act. The question is what, for the purpose only of the power over fisheries, are the limits of Australian waters. Any powers of the Commonwealth in respect of matters beyond Australian shores other than fisheries must be founded upon some other specific head of power such as defence, customs, quarantine, or upon the external affairs power or upon general attributes of Australia's national sovereignty today. It is worthwhile noticing here that the Beaches, Fishing Grounds and Sea Routes Protection Act 1932-1966 Cth purports to be made under the quarantine, trade and commerce and fisheries powers: that it uses the expressions "within territorial limits" and "beyond territorial limits", but defines "at sea" as meaning simply "within Australian waters".

Several nations that claim only a narrow territorial sea, usually three miles, nevertheless claim a much wider zone as exclusively theirs for fishing: see Doctor Bowett, The Law of the Sea (1967), pp. 13-19. Particulars are shown in the synoptical table prepared for the 1958 and 1960 Geneva Conventions on the territorial sea which may be found in several modern works on international law. The Commonwealth Parliament recently legislated to control fishing operations by anyone, foreigner or resident, within a twelvemile zone. This was accomplished by the amendment of the Fisheries Act 1952-1966 made by the Fisheries Act 1967. This enables a "declared fishing zone" to be established, to extend to twelve miles seaward from "the baselines by reference to which the territorial limits of Australia are defined for the purposes of international law". Within this zone the Fisheries Act applies to all persons, including foreigners, and to all boats, including foreign boats. The 1967 Act only came into force on 30th January 1968, that is after this prosecution began. The new provisions introduced into the principal Act have therefore no direct bearing on this case. It is enough to observe that "the declared fishing zone" cannot extend beyond the waters which are "proclaimed waters" under the principal Act. The waters proclaimed extend far beyond twelve miles; but there is nothing incompatible with the assertion of a twelve-mile "declared fishing zone" for the operation of the new provisions (including s. 13AA) and "proclaimed waters" pursuant to s. 7 of the principal Act extending far beyond twelve miles.

I do not think that the Governor-General's proclamation of itself makes the proclaimed waters Australian waters within the meaning of s. 51 (x.) of the Constitution. The ambit of any description in the Constitution and the validity of anything purporting to be done in reliance upon it are in the last resort matters for this Court. A proclamation defining Australian waters for the purpose of the laws about fisheries is not like a formal statement, made to the Court on behalf of the Government as to whether a particular place is, or is not, within Her Majesty's dominions. Such a statement is conclusive when it is made by a Minister of the Crown in response to a formal inquiry by the Court: see the explanation by Latham C.J. in Ffrost v Stevenson [1] . To that position, and only to that position, the statement of Lord Atkin, then Atkin L.J., is applicable: "Any definite statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive": The Fagernes [2] . However, the Governor-General's proclamation, although not decisive, is a weighty matter in this case. A glance at the map with the proclaimed waters delineated at once shews, I think, that the proclaimed waters can unquestionably be fairly called Australian waters. I certainly have no doubt that a man fishing in the sea six miles off Barrenjoey headland in New South Wales was fishing in Australian waters. But that is not all. I turn now to arguments based on the other words in the description in s. 51 (x.).

1. (1937) 58 C.L.R. 528, at p. 549. 2. [1927] P. 311, at p. 324.

Three interpretations were suggested. One is that the waters within the Commonwealth power over fisheries begin at low-water mark on the shore and extend seawards for three miles, this being on that view the outer boundary of Australian waters. The second is that they begin at the three-mile limit from the shore and extend further seawards. The third is that they begin at low-water mark on the shore and extend seawards to whatever be the outer boundary of Australian waters for fishery purposes.

The first view was put in the argument for the defendant. I have already rejected it; and what I shall say later will amplify my reasons for holding that the outer limit from the coastline of Australian waters for fishery purposes is not a mere three miles off shore.

The second view appears to be that on which the Fisheries Act proceeds. It appears, from implications in its structure, not to cover territorial waters. The proclamation must be then read as not extending further than the Act warrants. That fixes a meaning on the express provision of the proclamation excluding from its operation "waters that are within the territorial limits of a State". If these words stood alone and their denotation did not depend on the Act, I would have thought that "territorial limits" there means the land limits of a State; for, as will appear, I think it an inaccuracy in law to speak of a State as possessed of territorial waters in the open sea. However the words of the proclamation, in themselves, merely raise, in a slightly aggravated way, the same problem as do the words of the Constitution. They do nothing to solve it. They merely echo the assumption implicit in the Act.

The third of the three views I have mentioned is that which I think accords best with the words of the Constitution. Nevertheless I cannot escape misgivings; for there are powerfully persuasive reasons for saying that in 1900 the words "waters beyond territorial limits" may have meant waters beyond the limits of territorial waters, territorial waters meaning the open sea up to three miles from the seashore. I am far from convinced that this is what the words mean in the Constitution; but the constitutional powers of the Commonwealth and the States over the marginal sea of Australia and over fisheries there was not fully argued. We were asked to abstain from declaring where the landward limit of the Commonwealth power lies. I agree that the question is not critical for a decision of this case. But I do not find it possible to ignore it altogether if I am to deal, satisfactorily to myself, with some of the propositions that were advanced.

Territorial waters: The starting point in considering what waters are "beyond territorial limits" must be to notice how English law regards the territorial sea of England and British possessions. It is of some consequence, for the purposes of this case, to remember that, as Professor O'Connell has said, "the whole doctrine of the territorial sea is meaningless except as explained by the history of fishery claims".

Learned writers will continue to argue about the effect of Reg v Keyn [1] . It was a case in which, taking from a different context the aphorism of MacKinnon L.J., "the voices of infallibility by a narrow majority" stated the law of England in a way which Parliament very promptly corrected. Yet it is surely a mistake to suppose that the basic proposition on which Cockburn C.J., and those who with him made up the majority, relied was unsound as a statement of common law doctrine. It was that the realm of England ended at low-water mark; the Admiral always claimed jurisdiction over persons on board British ships wherever they might be, and at one time he claimed jurisdiction over all persons and all ships in the four narrow seas; but long before the nineteenth century that claim had been abandoned; therefore no British court had criminal jurisdiction over a foreign subject on a foreign ship on the high seas, although he committed a criminal act within three miles of the British coast.

The minority opinion, summarized, was that every nation has by the doctrines of international law jurisdiction over its territorial sea of at least three miles in width; and that by English law the Admiral had a general criminal jurisdiction there.

The reversal of the majority decision by the Territorial Waters Jurisdiction Act, 1878 Imp is noteworthy for present purposes, because of the statement in the preamble that "the rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty's dominions to such a distance as is necessary for the defence and security of such dominions". Offences committed by any person, whether a British subject or not, "on the open sea within the territorial waters of Her Majesty's dominions" were made punishable in the Admiralty Court. "The territorial waters of Her Majesty's dominions", by definition meant, in reference to the sea, "such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty's dominions as is deemed by international law to be within the territorial sovereignty of Her Majesty." The Act fixed the limit as one marine league from the coast "for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral". "Offence" here meant actions which, if committed in England, would be punishable by indictment according to the law of England for the time being in force.

The jurisdiction over territorial waters which the Act approved was a manifestation of sovereignty. It was exercisable by any court having jurisdiction in Admiralty. But the Act cannot, I think, be read as if it put territorial waters adjacent to a British colony, or any part of the seabed of the ocean there, within the power and jurisdiction of the colonial government, as if it were part of the land. There is strongly persuasive authority in the Supreme Court of Canada that the Act ought not to be so read. In the course of its judgment in the important case, Reference re Ownership of Off-Shore Mineral Rights [1] , that Court said:

The Act did no more than deal with what was regarded as a gap in the Admiral's jurisdiction. It did not enlarge the the realm of England, nor did it purport to deal with the juridical character of British territorial waters and the seabed beneath them. We have to take it, therefore, that even after the enactment of the Territorial Waters Jurisdiction Act the majority opinion in Reg v Keyn [1a] that the territory of England ends at low-water mark was undisturbed. 1. (1967) 65 D.L.R. (2d) 353, at p. 364. 2. (1876) 2 Ex.D. 63.

The Canadian Court held that the territorial sea had not become part of the adjacent Province of British Columbia. Their Honours remarked upon the provision that offences in territorial waters made triable by the Territorial Waters Jurisdiction Act were offences against the law of England. They said: "The legislation is inconsistent with any theory that in 1878 the Province of British Columbia possessed as part of its territory the solum of the territorial sea" [2] . I respectfully agree and apply the reasoning of that case to the Australian colonies. It is interesting to note that fifty years earlier Sir John Salmond had taken the same view of the Act in his paper, "Territorial Waters", Law Quarterly Review, vol. 34, p. 235, where he said (at p. 245):

The fact that the law so made applicable by the statute is the law of England and not the law of the adjacent colony seems to show that the Act, so far from adding to the colony a belt of maritime territory, has expressly recognized that the true limit of the colony is low-water mark, and that the marginal waters beyond that limit are not within the colony, but are merely subject to a special statutory criminal jurisdiction, similar to that which is possessed over offences committed on board British ships upon the high seas. 1. (1967) 65 D.L.R. (2d), at p. 365.

Assume that a sovereign nation has both imperium and dominium in the territorial sea which washes its coasts: assume too that this extends to the seabed and the subsoil; then in British countries this could, I suppose, be called Crown land, to use the expression which in Australia has taken the place of the older name, the "waste lands". But by what process in the law has any part of the seabed of the open sea below low-water mark ever become part of the Crown lands of New South Wales? There seem to me to be two reasons for questioning this. One is the narrow, perhaps pedantic, questioning of a lawyer looking for a good root of title. The other is a matter of broad constitutional principle.

The first will be well appreciated by anyone who knows the history of New South Wales when Sir George Gipps was Governor, and for the ten years thereafter. The local legislature then eagerly wanted to gain control of the disposition of the Crown lands. Imperial policy was against this, until 1855 when the new Constitution Bill as amended (17 Vict. No. 41; assented to pursuant to the Act, 18 & 19 Vict. c. 54) provided, by s. 43, that it should be lawful for the legislature of the colony to make laws "for regulating the sale letting disposal and occupation of the Waste Lands of the Crown within the said Colony". It is true that Cockburn C.J. - in Reg v Keyn [1] - quoted Hale as speaking long ago of the soil of the narrow seas as "part of the King's waste, demesnes, and dominions, whether in the body of a county or not". But his Lordship added:

This was said, not with reference to the theory of the three-mile zone, which had not then been thought of, but (following Selden) to the wild notion of sovereignty over the whole of the narrow seas. This pretension failing, the rest of the doctrine, as it seems to me, falls with it. Moreover, Hale stops short of saying that the bed of the sea forms part of the realm of England, as a portion of its territory. Whatever rights the Crown had in 1855 in the earth beneath the waters off New South Wales, I do not think it can be regarded as being "Waste Lands of the Crown within the said Colony". If the right to control the occupation and disposition of the submerged land beyond low-water mark did not become vested in the colonial legislature in 1855 - and I do not think it did - I am not aware of any other way by which, in point of strict law and history, it did. I fully appreciate that, as Jordan C.J. held in his notable judgment in Attorney-General v Australian Agricultural Co [2] , the words "within the said Colony" in s. 1 of the Act of 1855 did not curtail the power of the legislature to make laws for the peace, order and good government of the colony: but I do not think that this means that land under the open sea was, in 1855, comprehended in the description in s. 43 as land "within the Colony". That is the narrowly legalistic objection I have mentioned. 1. (1876) 2 Ex. D. 63, at p. 195. 2. (1934) 34 S.R. (N.S.W.) 571, at p. 575.

I go to a broader ground for the same conclusion. It accords with that taken in Canada. It is simply that territorial waters are an adjunct of territorial sovereignty: and that all rights and interests in territorial waters arise as an attribute of that sovereignty. Before federation New South Wales was not a sovereign polity. It was a British colony, a self-governing colony but not a sovereign body. Upon federation it lost some of its powers of self-government, because of the assignment to the new polity, the Commonwealth, of the capacity to make laws on topics defined by the Constitution. Before federation dominium and imperium in the territorial sea adjacent to the British colony New South Wales belonged to the British Crown as the sovereign of the colonial territory in international law. That position was not altered by federation. The former Australian colonies became States in the new Commonwealth: but of course not sovereign States. That term is sometimes heard: but clearly it is wrong: and nothing is added to political stature by a false description, which is perhaps the result of a supposed analogy, obviously fallacious in law and in historical fact, with the States of the United States of America.

In Carr v Fracis Times & Co [1] , Lord Macnaghten said of the alleged tort there in question:

It was committed within the dominions of the Sultan of Muscat, who is duly proved to be an independent sovereign. It was committed in the territorial waters of Muscat, which are, in my opinion, for this purpose, as much a part of the Sultan's dominions as the land over which he exercises absolute and unquestioned sway. This language points the contrast with the Australian States. At no time was any of them an "independent sovereign". They were once dependencies of Britain. They are now States in the Australian Commonwealth, having all the independent authority which the Constitution allows, but no international status. The States have never exercised "absolute and unquestioned sway" over any territory. 1. [1902] A.C. 176, at pp. 182-183.

I reject altogether the proposition that the Colony or State of New South Wales has or ever had in any strict sense dominium over the adjacent sea which was, within the statutory description in the Territorial Waters Jurisdiction Act, territorial waters of Her Majesty's dominions. Sovereign rights in respect of these waters resided in the Imperial Crown. The court which could exercise jurisdiction over them was the Court of the Lord High Admiral.

Admiralty Jurisdiction: In Australia this was exercisable originally by courts of Vice-Admiralty constituted by delegation by the Lords Commissioners of the Admiralty, later by the Supreme Courts exercising Admiralty jurisdiction by virtue of Imperial statutes; and today by the Supreme Courts and by this Court, still pursuant to the Colonial Courts of Admiralty Act, 1890 Imp.

The areas of the sea within the jurisdiction of the British Admiral were from the first not within the ordinary territorial criminal jurisdiction of the Australian colonies. On 5th May 1787 - a week before the First Fleet sailed - letters patent under the seal of the High Court of Admiralty issued enabling Phillip as Governor, Ross the Lieutenant-Governor, and others mentioned, to assemble a Court of Admiralty of seven members in New South Wales "to hear and determine all piracies, felonies, robberies and all assessories thereunto committed or which shall be committed in or upon the sea or within any haven, river, creek or place where the Admiral or Admirals have power, authority or jurisdiction": Historical Records of Australia, IV, i, pp. 13-19. I mention these matters only to expound my concurrence with what the Chief Justice has said on this aspect. Before leaving the passage I have quoted from the Admiralty letters patent I should say that the words used are derived from the Act of 1536, 28 Hen. VIII c. 15. They must I assume be read in the same way as that statute is to be read: see Reg v Keyn [1] . I add in passing that the word "creek" has of course here its English meaning, an inlet of the sea - a very different thing from Australian creeks, which are inland freshwater streams. This variant in the sense of the word is old. It was noticed by Governor King in 1805 among several "local expressions that have obtained in this Colony": Historical Records of Australia, I, v, p. 586.

I have referred to the Admiralty jurisdiction because this emphasizes that what in the Act of 1878 were called the territorial waters of Her Majesty's dominions were not the territorial waters of various British colonies considered separately. They were all seas adjacent to the coast of Britain and of any British possession, considered as a whole, which were "deemed by international law to be within the territorial sovereignty of Her Majesty".

The Commonwealth of Australia has, I consider, now succeeded to the Imperial rights and interests formerly existing in and under the territorial waters, as understood in international law, which are adjacent to the coast of Australia. That is because Australia has grown into nationhood. With the march of history the Australian colonies are now the Australian nation. The words of the Constitution must be read with that in mind and to meet, as they arise, the national needs of the "one indissoluble Federal Commonwealth" under the Crown. The law has followed the facts. The Statute of Westminster has, by removing restrictions, real or supposed, affirmed the legal competence of the Commonwealth Parliament. The Commonwealth has become, by international recognition, a sovereign nation, competent to exercise rights that by the law of nations are appurtenant to, or attributes of, sovereignty. It follows, in my opinion, that rights in and over the territorial sea and its seabed are now vested in the Crown in right of the Commonwealth of Australia. I have here used the word "rights" for convenience, to mean all forms of ownership, rule, dominion, and power known to our law, which are capable of existing in the open sea and seabed. The view I have expressed accords with the decision of the Supreme Court of Canada which I have already mentioned. It accords too with what I take to be the general tenor of present-day doctrine of federalism in the United States: see United States v California [1] ; United States v Louisiana [2] ; United States v Texas [3] ; cf. Alabama v Texas [4] .

1. (1947) 332 U.S. 19, at p. 38 [91 Law. Ed. 1889, at p. 1899]. 2. (1950) 339 U.S. 699 [94 Law. Ed. 1216]. 3. (1950) 339 U.S. 707, at p. 716 [94 Law. Ed. 1221, at p. 1226]. 4. (1954) 347 U.S. 272, at pp. 274-277, 281 [98 Law. Ed. 689, at pp. 649-696, 697].

Early writers on international law justified national sovereignty over territorial waters by the need for protection - against hostile acts, and of health and revenue. In each of these fields power is, by the Constitution, assigned to the Commonwealth - naval and military defence, quarantine, customs duties.

International lawyers, discussing the width of territorial waters, do not all agree as to the proper baseline from which to measure; or as to whether, if it be low-water mark on the shore, the outer limit, say three miles off shore, must follow the sinuosities of the coast. These questions are not important for this case. Even if the three-mile limit be, in this case, a relevant consideration, exactly where it lies is not. Six miles off Barrenjoey cannot be within three miles of the coast, however wobbly the line be drawn.

What I have said so far influences my conclusion as to what area of sea the words "Australian waters beyond territorial limits" designate. But before coming to what that means, I would make it clear that I do not intend by anything that I have said to deny validity to the legislation of any Australian State regulating offshore fishing so far as it is not inconsistent with any valid Commonwealth law. Subject to that, I do not question that State law can regulate the size of nets to be used by residents of Australia who fish in seawaters adjacent to the coast of the State, just as it can prescribe the size of bathing costumes to be worn by those who swim in the surf. But that is not because of any right either of sovereignty or property in the open seas or the bed of the sea. It is simply that the State legislature is empowered to make laws for the peace, order and good government of the State; and State here means not merely a territory, but a territory inhabited by people as a political community.

To speak of laws with respect to fisheries as being justified by international rights in territorial waters seems to me historically a mistake. At least so far as English law is concerned, the process has been rather the other way round. Claims to a general jurisdiction over territorial waters have developed from long asserted claims to fish there. In Attorney-General for British Columbia v Attorney-General for Canada [1] , the Privy Council observed that "the right of the public to fish in the sea has been well established in English law for many centuries and does not depend on the assertion or maintenance of any title in the Crown to the subjacent land". That case has, I think, no direct bearing on the matter I am presently considering. The decision turned on item 12 of s. 91 of the British North America Act, 1867 Imp, which puts "sea coast and inland fisheries" among the matters which are within the exclusive authority of the Dominion Parliament: there is no comparable provision in our Constitution. But it is implicit in the judgment of their Lordships that the regulation and control of the right of the public to fish in the sea may be necessary for the peace, order and good government of the people of the neighbouring land.

It has been suggested that it is an anachronism to invoke the words "peace, order and good government" in support of laws made by Australian colonial legislatures in the nineteenth century for the control of sea fisheries. This, it has been said, is to use newly-found twentieth century doctrine to sustain nineteenth century laws, which should rather be regarded as dependent upon the colonies having had some right or title to the adjacent seas and with it the seabed. This, in my opinion, does not follow. It is true that the need to formulate a criterion for confining what might have seemed to be consequences of the decision of the Privy Council in Macleod's Case [2] , had not arisen until that decision. But within three years thereafter the doctrine which later, at least since Croft v Dunphy [3] , has become generally accepted was presaged in Ashbury v Ellis [4] . I do not think it necessary to go further into this matter here. I refer to the outline of it which I gave in the course of my judgment in Reg v Foster; Ex parte Eastern and Australian Steamship Co Ltd [5] . I shall not repeat what I then said. I add only that I think it consistent with what Jordan C.J. said on this topic in Attorney-General v Australian Agricultural Co [1] . My view therefore is that the legislatures of the Australian States have power to make laws about fishing at sea: but saying that does not presuppose that they have any sovereignty over the open sea or any title to the subjacent land of any part of that sea. The laws which they make must not be inconsistent with Commonwealth law. And, generally speaking, they will be read as referring only to the off-shore waters of the particular State, which are sometimes conveniently, but misleadingly, called its territorial waters: e.g., Green v Burgess [2] ; cf. Munro v Lombardo [3] . But this territorial restriction arises rather as a matter of construction than of power. The power of a State legislature to make laws which operate upon persons, things and events beyond the State is not limited by three miles of sea. It depends upon relationship to the State, not upon distance from it - on whether the persons concerned, or their transactions, are related to the peace, order and good government of the State. I certainly agree that a person resident in a State does not escape its criminal jurisdiction by putting out to sea in a boat to do a criminal act. I see no reason to doubt the decision of the Supreme Court of South Australia in Giles v Tumminello [4] ; but I would place it upon jurisdiction in respect of persons and events rather than upon place.

1. [1891] A.C. 455. 2. [1933] A.C. 156. 3. [1893] A.C. 339. 4. (1959) 103 C.L.R. 256, at pp. 307-308. 5. (1934) 34 S.R. (N.S.W.) 571, at pp. 576-578. 6. [1960] V.R. 158. 7. [1964] W.A.R. 63. 8. [1963] S.A.S.R. 96.

I come now from general constitutional principles, which must govern the interpretation of the Constitution, to the construction of its particular words.

If the words of s. 51 (x.) could be read without any regard to impedimenta, of commentary, curial exposition or use elsewhere, I would have thought that any part of the sea which was outside what the common law regarded as the jaws of the land would in 1900 have answered to the statutory description of "waters beyond territorial limits"; for waters within territorial limits are, I would have thought, inland waters, rivers and lakes, and seawaters within gulfs, estuaries and similar inlets. The words, Australian waters, when robbed of any context, are purely geographical and of wide denotation. A visitor to Australia who fished in Australian trout streams would surely say on his return home that he had been fishing in Australian waters: and so would a visitor who went deep-sea fishing off the coast.

But the question is not what meaning one would put upon the words "territorial limits", if they had appeared first in the Constitution; but what meaning is to be put upon them there, having regard to contemporary usage in other legal instruments. And they must be considered in connexion with other expressions relating to the same subject matter which are bewildering in their variety.

Turning then from geography to lexicography: The first appearance of the expression "beyond territorial limits" is said by Professor O'Connell (in International Law in Australia (1966), p. 254) to have been in the comments of the law officers of the United Kingdom in 1855 upon a British Guiana ordinance. There it was used in a statement that colonial legislatures had no jurisdiction "beyond territorial limits - three miles from the shore". On the other hand, waters "within territorial limits" meant for Wheaton, International Law (1866), at p. 188 , only those parts of the sea that are "partially surrounded and inclosed" by the territory of a State. This passage was quoted by Sir Robert Phillimore in Reg v Keyn [1] . The actual phrase "territorial limits" was not I think used in any other of the numerous passages from learned treatises quoted in that case.

The first place where I have noticed the expression territorial limits, in any relevant context, in connexion with the Australian colonies is in the Fisheries Act, 1881, of New South Wales. That Act dealt, among other matters, with fishing in tidal waters; and it established Commissioners of Fisheries for New South Wales. It defined "tidal waters" as "all waters which ebb and flow over Crown Lands within the territorial jurisdiction of the Crown in New South Wales and every lake and lagoon in the said Colony ordinarily subject to the influence of tides (although the communication with the sea may for the time be closed) the soil or bed whereof is the property of the Crown together with in each case the soil of such Crown Lands".

The Act provided in s. 4 that the duties and powers of the Commissioner should "extend to the territorial limits of the said Colony". But a perusal of the Act does not, I think, yield anything conclusive of the sense in which these words were there used. The most that can be said with assurance is, I think, that it extended to gathering oysters and fishing from the shore - defined as "the portion of Crown lands situate between mean high and mean low-water mark" - whereas the earlier Act, the Fisheries Act of 1865, which referred in its preamble to "the waters of the Colony of New South Wales" treated those as being "any bay estuary or other influxion of the sea or any river in New South Wales".

In 1882 Britain was a party to the "International Convention for the purpose of regulating the Police of the Fisheries in the North Sea outside Territorial Waters". Described in these words this was set out in a schedule and confirmed and enacted as part of the law of the United Kingdom by the Sea Fisheries Act, 1883. Then, in 1885, the Imperial Parliament set up the Federal Council of Australasia, by 48 & 49 Vict. c. 60. The Council was given legislative authority with respect to, inter alia, "Fisheries in Australasian waters beyond territorial limits". (These words appear to be misquoted by Professor O'Connell, International Law in Australia (1966), p. 255.) The whole extent of "Australasian waters", within the meaning of the Act, may not have been readily definable, especially as, by reason of s. 30, the Act never came into operation in respect of New South Wales and New Zealand; it did in respect of Fiji. However, the importance of the Act is that its words were unquestionably the source of the words of s. 51 (x.) of the Constitution. It has been sometimes assumed that "beyond territorial limits" in the Act of 1885 meant outside territorial waters, and that it was with this meaning that the expression was taken into the Constitution. I find no convincing reason for that conclusion. If that had been what was meant I would have expected to find it said expressly, as two years earlier it had been said in the Convention adopted by the Act of 1883. There seem to me to be several reasons why that construction was not intended.

First, the preamble of the Act which constituted the Federal Council shews it was intended that it should deal with matters which could be dealt with "without unduly interfering with the management of the internal affairs of the several colonies by their respective legislatures": and I would not have thought that territorial waters over which Great Britain had sovereignty were "internal affairs" of the colonies.

Secondly, two Acts passed by the Federal Council, reserved for the Royal assent and duly assented to, are enlightening. They are The Queensland Pearl Shell and Beche-de-mer Fisheries (Extraterritorial Act of 1888 and The Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act of 1889. These two enactments were, for presently relevant purposes, generally similar. Each was expressed to apply only to "British ships, and boats attached to British ships". They applied respectively to fisheries in "Australasian waters adjacent to Queensland" and in "Australasian waters adjacent to Western Australia". These terms were similarly defined in each Act as: "All Australasian waters within the limits described in the Schedule to this Act, exclusive of waters within the territorial jurisdiction of the Colony" (of Queensland in one case, Western Australia in the other). This is noteworthy for two reasons. First, the areas of Australasian waters, described in the respective schedules by latitude and longitude, embraced great tracts of open sea, and, in the case of Queensland, the Barrier Reef and various island groups. Doubtless one must be cautious in using any statute passed pursuant to an express power as indicative of the ambit of the power. Nevertheless, that wide areas of ocean off Australia, to the east and the west, were last century considered to be Australasian waters, is strongly suggestive that the description Australian waters is not today to be narrowly confined. The other way in which the two Acts are significant is the assumption, implicit in the definition I have quoted, that waters "within the territorial jurisdiction" of an Australian colony were within Australasian waters. However, the express exclusion of them from the purview of the Acts is not to my mind decisive of the meaning of the words "beyond territorial limits".

Looked at as a matter of purely literary statutory construction, it can be said that, if the two Acts had been meant to operate to the full limit of the legislative authority of the Federal Council, the words of exclusion would have been of waters within territorial limits. That this was not the plan adopted may mean no more than that the Federal Council did not intend its legislation to extend to the field which the legislation of the colonies already covered or could cover. It does not I think mean that all waters within the territorial jurisdiction of a colony were waters within its territorial limits. That would be to determine the extent of a power by the manner in which it was exercised. The deviation between "territorial jurisdiction" and "territorial limits" seems to me significant.

The phrase "the limit of territorial jurisdiction" had been used in 1878 by Grove J. in Reg v Keyn [1] , to include the three-mile belt of territorial sea: and Cockburn C.J., speaking of the theories of different writers as to the nature of the rights of a country in its territorial sea, said [2] :

Others again, like M. Ortolan and M. Calvo, deny any right of territorial property, but concede "jurisdiction"; by which I understand them to mean the power of applying the law, applicable to persons on the land, to all who are within the territorial water, and the power of legislating in respect of it, so as to bind everyone who comes within the jurisdiction, whether subjects or foreigners. 1. (1876) 2 Ex. D. 63, at pp. 110 and 111. 2. (1876) 2 Ex. D., at pp. 191-192.

I think that the words "waters within territorial jurisdiction", when used, in any legal instrument, in relation to a British colony in Australia, in the latter part of the nineteenth century, properly speaking denoted both internal and enclosed waters and also the high seas off the coast to a distance of three miles: that is to say, those sea waters which were "territorial waters of Her Majesty's dominions" within the meaning of the Territorial Waters Jurisdiction Act 1878. But saying that territorial waters are within territorial jurisdiction does not, to my mind, determine the meaning of the expression "beyond territorial limits" used in reference to British possessions in 1900. I do not see why the words "waters beyond territorial limits" in the Constitution should be read as "waters beyond territorial jurisdiction". I realize, however, that that may have been what those who framed the Constitution, or some of them, thought the words meant. We have the authority of Sir Robert Garran in support of that. Doubtless the words of the Constitution should be given the meaning that they had when it was enacted as a statute of the Imperial Parliament. But that does not mean that its words can now denote only what they then denoted, or that we are to ignore the fact that they appear in an instrument of government for a new nation then called into being as a dominion of the British Crown.

I realize too that, in fairly recent times, the phrase "beyond territorial limits" has come to be used in the sense in which I do not read it in the Constitution. Some of these uses have been in official documents - for example in the British Government's observations on the 1956 proposals for the recognition of a contiguous zone of sea between territorial waters and the high seas. This included the statement "It has hitherto been the policy of Her Majesty's Government to oppose any claims to the exercise of jurisdiction outside territorial waters. Many countries have, however, claimed to exercise jurisdiction for certain limited purposes beyond territorial limits": see Colombos, The International Law of the Sea, 6th ed. (1967), p. 112.

I do not question that the words "within the territorial limits of the Commonwealth" can be used - as I think they are used in the Whaling Act 1960 [*] , s. 5 (2) - to describe parts of the sea which are within the jaws of the land of Australia and also the territorial waters of Australia. But giving this meaning to the phrase "within territorial limits" in a statute or other instrument does not, to my mind, diminish the area of sea which is "beyond territorial limits" within the meaning of the Constitution. The two phrases may appear to be logical counterparts, but they do not therefore describe geographical counterparts. In any event I am not prepared to treat the language used in statutes or other documents long after 1900 as definitive of the meaning of the words of the Constitution.

The case before us does not turn directly on the words of the Constitution. It turns upon the words of the Fisheries Act 1952-1966, and in particular upon the definition in that Act of "Australian waters" - a definition inserted by the amending Act of 1953. Here, as in the Whaling Act which I have mentioned, words, by their context, can get a different meaning from the very same words in the Constitution.

Of course the Parliament cannot by the words it uses enlarge or contract any of the provisions of the Constitution. If, by using the phrases of the Constitution in a different sense from that which they there have, a statute travelled beyond the constitutional power, it would be invalid. But Parliament is not obliged to exercise any of its powers to their utmost extent; and if it so uses words in a statute that the enactment is within power, it matters not, it seems to me, that it has used those words in a narrower or different sense from that which, properly understood, they could bear in the constitutional provision whence the power relied upon was derived.

(b) the waters adjacent to a Territory and within territorial limits; and

(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits.

If the first head of that definition stood alone one would say simply that the words "beyond territorial limits" are used with whatever be their proper meaning in the Constitution. They are the same words used in relation to the same subject matter, fisheries. But they do not stand alone. They must be read with the second and third heads of the definition, which stand in juxtaposition with them. They shew that, for the purposes of the Act, waters adjacent to a Territory - which I take it means coastal waters - may be either within or beyond territorial limits. This I think shews clearly enough that in the Act "waters beyond territorial limits" means seas beyond territorial waters. But I say again: the language of the Constitution may give a meaning to the language of an Act. The language of an Act cannot give a meaning to the words of the Constitution. Either because of a misconception as to the areas of Commonwealth and State power which has unquestionably been prevalent for a long time, or simply as a matter of policy, the Commonwealth Parliament has chosen to leave to the States the regulation of fisheries in territorial waters adjacent to their coasts and to accept that as the reach of State laws on the subject. This view has had acceptance in State courts where, as I have said, the off-shore waters of the States are sometimes conveniently called the territorial waters of a particular State. By not entering the field - if the use of that expression in relation to the sea be permissible - the Commonwealth Parliament has avoided raising any question of inconsistent laws which would have to be resolved in accordance with s. 109 of the Constitution. This arrangement of, generally speaking, complementary laws in respect of different areas, must seem wise and convenient, except perhaps for fishermen and lawyers.

The proclamation by the Governor-General, stating the boundaries of the "proclaimed waters" for the purposes of the Act, describes them as waters within a described area "other than waters that are within the territorial limits of a State". The phrase "territorial limits of a State" here must have the meaning which it has for the purposes of the Act under which the proclamation was made. As I have said, I am far from convinced that it is equivalent to the phrase "beyond territorial limits" in the Constitution. I again observe, because it is not without significance, that in the 1967 amendment of the Commonwealth Fisheries Act the definition of "the declared fishing zone" begins "the waters adjacent to Australia and having as their inner limits the baselines by reference to which the territorial limits of Australia are defined for the purposes of international law".

The Chief Justice has said that to determine what should properly be called the original territorial limits of a State it becomes necessary to look at the original declarations describing and defining the maritime boundaries of the areas of New Holland claimed as possessions of the Crown. I do not propose to go into those. The Chief Justice has alluded to them. I add only that Governor Phillip's commission as "Captain-General and Governor-in-Chief in and over our territory called New South Wales" gave a description of the territory as comprehending the country inland from the east coast of Australia from Cape York to the South Cape of Tasmania, "including all the islands adjacent in the Pacific Ocean". 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.

I sum up the conclusions I have reached as follows:

(a) The Fisheries Act 1952-1966 and the proclamation made under it are a valid exercise of Commonwealth power.

(b) The Act and proclamation do not extend to all waters that are beyond territorial limits for the purpose of s. 51 (x.) of the Constitution; but they do not extend to any that are not.

(c) Australian waters beyond territorial limits, within the meaning of the Constitution, are areas of the high seas beginning at low-water mark and extending seawards to an outer boundary determined by geographical and political considerations. By contrast waters within territorial limits are (i) rivers, lakes and inland waters and (ii) sea-waters in gulfs, estuaries and similar inlets of the sea, that is all waters which at common law would be regarded as within the jaws of the land.

(d) Australian territorial waters for the purposes of international law are the territorial waters of the Commonwealth as a nation. They are not part of the territory of any Australian State: but a State may take possession of parts of them by for example building breakwaters; and it may use the seabed for limited purposes, for example sewerage outlets.

(e) The Australian States have plenary power to make laws for fisheries within their territorial limits; and also, in the interests of peace, order and good government, for fisheries off their coasts provided their laws are not inconsistent with any valid Commonwealth law.

Section 4 of the Fisheries Act 1952-1966 Cth defines "Australian waters" to mean:

(b) the waters adjacent to a Territory and within territorial limits; and

(c) the waters adjacent to a Territory, not being part of the Commonwealth, and beyond territorial limits.

Section 5 (1) declares that the Act is to extend to all the Territories and to all Australian waters and by s. 7 the Governor-General is authorized to declare, by proclamation, any Australian waters to be proclaimed waters for the purposes of the Act.

The proclamation, the validity of which is attacked, is expressed to cover Australian waters "other than waters within the territorial limits of a State". "Waters within the territorial limits of a State" are no doubt excluded from the statutory definition of Australian waters in par. (a) of s. 4 and therefore from the proclamation because of the terms of s. 51 (x.) of the Constitution under which the Parliament may make laws for the peace, order and good government of the Commonwealth with respect to "Fisheries in Australian waters beyond territorial limits". The proclamation does include, however, waters the internal boundary of which is the coastline of the Territory of New Guinea and in so far as these waters are concerned the legislative power of the Parliament rests upon s. 122 of the Constitution. But the arguments put forward by counsel for the defendant do not require us to consider the extent of the legislative powers of the Parliament under s. 122. His submissions were directed only to the powers conferred by s. 51 (x.) and it was not questioned that if the proclaimed waters around Australia itself can properly be described as "Australian waters", so much of the proclaimed waters as are adjacent to the coast of the Territory of New Guinea are properly included.

The first submission was that s. 51 (x.) authorizes the Parliament to legislate only with respect to fisheries within the three-mile limit. The words "territorial limits" in the placitum, it was said, refer to the land limits of the Commonwealth and "Australian waters beyond territorial limits" are limited to waters which lie within three miles of the coastline. If this be so, there can be no doubt that the proclamation made under s. 7 of the Fisheries Act 1952-1966 is invalid since the external boundaries which it sets lie beyond the three-mile limit.

Next it was said that if the words "Australian waters beyond territorial limits" are wide enough to cover areas of the seas beyond the three-mile limit, nevertheless the proclamation is invalid since the outer boundaries set by it are too wide and include waters which cannot fairly be regarded as "Australian waters".

Finally it was suggested that s. 7 of the Fisheries Act is invalid because it purports to vest the Governor-General with judicial power. As I understood this argument, it was that the section purports to authorize His Excellency to determine what are and what are not "Australian waters" within the meaning of s. 51 (x.). But s. 7 does no such thing. It does not confer power to declare what waters are Australian waters. What it does is to enable His Excellency to proclaim "Any Australian waters" to be "proclaimed waters" for the purposes of the Act.

I do not agree with the defendant's first submission that the Parliament's power to legislate is confined to the making of laws with respect to fisheries within three miles of the coast. It is said in Quick and Garran's Annotated Constitution of the Australian Commonwealth, at p. 569, that under s. 51 (x.) the States were "allowed to retain the control of fisheries within their territorial limits whilst the Federal Parliament was assigned jurisdiction over fisheries in Australian waters beyond the three-mile limit". The view thus expressed seems to be that the words "territorial limits" in s. 51 (x.) refer to the three-mile limit and that the Commonwealth Parliament's legislative powers do not enable it to make laws in respect of fisheries within that limit. I think it unnecessary to decide whether the Parliament's power to legislate with respect to fisheries is limited in the way suggested since waters within the territorial limits of a State - wherever those limits may lie - are excluded from the Fisheries Act and from the proclamation made under it, but I have no doubt that the placitum enables the Parliament to legislate with respect to fisheries in waters beyond the three-mile limit so long as those waters can fairly be described as "Australian waters". Support for this view is, in my opinion, to be found in two Acts passed pursuant to the Federal Council of Australasia Act (48 & 49 Vict. c. 60), an Imperial Act which authorized the Federal Council to legislate with respect to "fisheries in Australasian waters beyond territorial limits", the words which - with the substitution of "Australian" for "Australasian" - were later used in s. 51 (x.). One of these Acts (which was passed in 1888) dealt with pearl-shell and beche-de-mer fisheries in waters off the coast of Queensland, the other (passed in 1889) dealt with similar fisheries off the coast of Western Australia. In each case the fisheries were in areas which extended far beyond the three-mile limit. The continuance of these Acts was preserved by s. 7 of the Commonwealth of Australia Constitution Act and, in fact, they remained in force until they were repealed by the Parliament in 1952.

The remaining question for determination is the one about which I have felt most difficulty. Are the external limits set by the proclamation too wide or may the waters proclaimed properly be described as being "Australian waters" within the meaning of s. 51 (x.)? In considering this question it is to be borne in mind that Australia is an island continent and it is proper to take into account the width of the seas which lie between it and the shores of the other nations which border upon those seas. Here again I think that light is thrown on the question by the two Acts of the Federal Council to which I have referred earlier. In the case of the first of them "Australasian waters adjacent to the Colony of Queensland" were defined to cover an area which extended in places to two hundred miles or more from the coast of Queensland. In the second of the two Acts, the outer boundaries of "Australasian waters adjacent to the Colony of Western Australia" were defined so as to cover areas of the ocean five hundred miles from the coast of Western Australia.

In the light of these considerations I am of opinion that the defendant's contentions cannot be sustained.