Bonser v La Macchia

Bonser v La Macchia - [1969] HCA 31 - HCA 1969 case summary — Zoe

[29]

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.

[33]

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.

[61]

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.

[79]

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.

[82]

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:

[86]

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.

[89]

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.

[90]

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.

[106]

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.

[113]

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].

[114]

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".

[147]

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.

[185]

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.

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