New South Wales v Commonwealth

As a result of these assertions, it was submitted that the continental shelf and the territorial seas and subsoil were vested in the colonies in 1900, either by original settlement or upon the grant of self-government.

Because of these submissions, it was finally submitted that ss. 106-107 of the Constitution maintained these property rights and legislative power in the States so that the Parliament could not by the exercise of its legislative power with respect to external affairs trench upon such properties and rights.

To some extent I dealt with the matters thus raised in my reasons for judgment in Bonser v. La Macchia [97] . Having now heard full argument addressed to this issue, and having considered the many documents tendered in the case and the various decisions to which we were referred, I am confirmed in the opinion which I then expressed, namely, that the colonies in 1900 had neither proprietary rights in, nor legislative power over, the territorial waters which washed their shores, nor in or over the subjacent soil or superjacent airspace except in so far as they had legislative power to enact extra-territorially operating laws. Nor did they have any rights in the continental shelf and incline.

The question in this connexion is not what rights the Imperial Crown had, or asserted itself to have, in areas of the sea not within the jaws of the land. Nor is it what rights were claimed on behalf of Scotland in areas of the sea, or of arms of it. Due to the undoubted sovereignty of the United Kingdom it was free for its own purposes to make and enforce within its own territory any claim to any part of the high seas. The remarks of Lush J. in Reg. v. Keyn [98] , are significant in this connexion. He said that, though at common law the realm ended at low-water mark and though the jurisdiction of the Admiral did not extend to acts on a foreign ship on the high seas, albeit within a marine league of the shore, the Parliament could alter that situation if it so desired. But of course, whilst for its own domestic purposes it could pass without restriction laws operating beyond the domain, only such of those laws as operated within the area conceded to the nation by the comity of nations could have validity at international law.

A great deal of time and effort was expended in the preparation for and in the hearing of the cases in an endeavour to establish that Great Britain claimed, and it was submitted rightly claimed, vast areas of sea and seabed as part of the King's realm or of the King's waste. But there is no need to express any definitive opinion on these submissions in order to decide the present case. One can say in passing that it is quite apparent that views on the question of what, for domestic purposes, Great Britain properly claimed have varied from time to time and at best any conclusion on that question may be fraught with considerable uncertainty. But, in my opinion, the question of what Great Britain or the Imperial Crown claimed to own or to control is not really relevant to the question which lies at the root of the solution of the problem which is raised by this second issue. Suffice it to say that the Imperial Crown, as representing the Empire, had at all relevant times dominion according to international law over the Imperial territorial seas. Had the Imperial authorities been minded to do so, they could have placed such part of these territorial waters as washed the shores of a colony within the control of the government of that colony as representing the Imperial executive and legislature. But Great Britain as the nation state must have remained responsible internationally for the performance of the obligations associated with the territorial sea. The Imperial Parliament could have authorized the executive to place the colonial territorial seas under the control of the appropriate colony: but no statute of the Imperial Parliament did so.

The relevant question under this issue, therefore, is whether, in establishing a colony and later in giving the colony self-government, the Imperial Crown or the Imperial Parliament vested in the colony either proprietary rights or legislative power in the specific areas of sea and subjacent soil in question in these cases.

What was involved in the process of colonization in the case of the Australian colonies was the placing under delegated government defined areas of land. No alienation of property or of rights was involved. Nothing in the least comparable to the consequences of a conveyance of land occurred upon or by the act of establishing a colony. No ad medium filum analogy is available. The colonies were colonies in the classical sense of that word. They were settlements of British people. They did not involve any conquest; nor the displacement of any ruler or government in charge of the land to be settled.

In the inception of the first Australian colony, a Governor with extensive but defined powers, was commissioned to govern a definite area of land. Examination of that commission and of the instruments setting up the other colonies, or severing off parts of the original colony, amply supports that conclusion. My brother Jacobs, whose reasons I have been able to read, has amply examined those instruments. No power over Imperial territorial waters was granted expressly or impliedly. The colonists inherited the common law: but it operated only in the realm which ended at low-water mark. This was decided in Reg. v. Keyn [99] , a decision with which I respectfully agree. See also Harris v. Owners of Franconia [1] andBlackpool Pier Co. Ltd. v. Fylde Union [2] . Thus, property in and power over the territorial seas could not have come by the common law. As I have already mentioned, no statute and no executive act authorized by statute conferred upon the colonies property in or legislative power over the territorial seas. Later history in connexion with the control of the waste lands of the Crown in the colonies makes this clear.

1. (1876) 2 Ex. D. 63. 2. (1877) L.R. 2 C.P.D. 173. 3. (1877) 36 L.T. 251.

Imperial policy, however, in the light of the experience with the American colonies, favoured in relation to the Australian colonies, first, the creation of small rather than large land holdings - a policy sharply reversed during the governorship of Lachlan Macquarie, and, secondly, progressive increase of legislative power in representative bodies in the colonies. Each policy was designed to avoid a repetition of the American rebellion. Thus, the Imperial government progressively allowed the Governors, and subsequently the representative assemblies, to make provisions operating outside the precise territorial limits of the land in relation to matters of purely colonial concern being usually matters intimately connected with the welfare of the colony and of the colonists. But the control of the disposal of the unalienated lands in the colonies was long retained by the Imperial government for Imperial purposes. The Imperial authorities, apart from any other matter of policy, desired to use part of the proceeds of the disposal of the waste lands to assist the financing of migration from England to the colonies. Indeed, control of the unalienated land may be said to have been wrested by the colonists from the Imperial authorities by continued argument and protestation. However, in July 1855, nearly seventy years after the first settlement, the Imperial Parliament passed "an Act to repeal the Acts of Parliament now in force respecting the Disposal of the Waste Lands of the Crown in Her Majesty's Australian Colonies" which placed, or enabled the placement of, the control of the disposal of such waste lands in the hands of the legislatures of the colonies. It is clear to demonstration that the waste lands only included the land within the colonies and did not include any part of the high seas or subjacent soil. In earlier legislation relating to the waste lands, viz. 5 & 6 Vict. c. 36, passed in June 1842, it is made abundantly clear that only land is included in the description "waste lands". In authorized sales of such lands, there were to be three classes: town lots, suburban lots and country lots, these classes fully exhausting what was included in the description "waste lands". The Act of 1842 was repealed, along with other Acts on the subject, by the Act of 1855. There can be no doubt that the description "waste lands" in this Act was the same as that in the earlier Acts.

Not only was the territorial sea or its subjacent soil not part of the waste lands of the Crown, the disposal of which was thus placed by the Imperial legislation under the control of the colonial governments, but the fact of that legislation clearly indicates that the legislative control of the territorial seas and subjacent soil could not have been given to the colonial governments at any earlier time. To have given proprietary or legislative rights over part of the sea and seabed whilst denying any right or power in the disposal of the land would have been absurd. That the Imperial authorities had international obligations in respect of the territorial waters makes such a course more than unlikely.

Thus the history of the contest in Australia as to the power of disposal of the waste lands of the Crown, lands which did not include any part of the high seas, tends to deny that either by original settlement or by any other act of the Imperial authorities, the territorial seas and subjacent soil were placed or brought within the territory over which powers of government were given by that settlement. The Crown Lands Acts, e.g. of New South Wales and of Tasmania, made it quite clear that the Crown lands, the substitute expression for the waste lands, included and subjected to the statutory requirements only land above high water.

But it is said that on the grant of self-government to a colony, legislative power over the territorial sea and subjacent soil - and, indeed, over the continental shelf and incline - was granted to the colony. In so far as the concurrence of the operation of the Waste Lands Act with the grant of self-government is concerned, what I have already written suffices to answer the proposition.

However, and in any case, there is nothing in the Constitution granted to any of the colonies which supports the view that thereby the boundaries, or the territorial description, of the colony were or was enlarged. Local autonomy replaced representative government of limited capacity; but the territorial description remained. Of course, thereafter the Crown accepted the advice of colonial Ministers; but still only in relation to colonial affairs, of which, in my opinion, the control of the territorial seas and subjacent soil did not form part.

A large number of opinions of law officers of the Imperial Crown were pressed upon us in an endeavour to establish the proposition that the colonies possessed, as it were in their own right, territorial seas. Of course, however persuasive in some circumstances, and however eminent such law officers were or proved to be, their opinions are not precedents nor, in any sense, binding. Their opinions speak of the territorial seas of the colony, a description which, though involving a degree of ambiguity, I am prepared to assume meant, without being convinced that it did mean, that such seas were under the control of the colony. But I have no doubt that these law officers, who did not have to put their minds to the question now before this Court, could quite easily speak of the territorial seas of the colony and conclude that a law was good because, though plainly connected with the colony's affairs, it operated in the territorial sea. Yet it seems to me that if they meant that such seas were either colonial "property" or under colonial dominion, they were under a basic misconception. The territorial seas in themselves were not, in my opinion, source or subject of colonial power or authority. The colonial laws which these officers supported in their opinions all touched and concerned the colony and its welfare and in later times would be accepted as valid extra-territorially operating laws. Further, the Imperial colonial policies of the times, to which I have already made reference, need to be borne in mind in reading and evaluating these opinions. I am unable to give definitive weight to these various opinions of Imperial law officers to which we have been referred.

For reasons which I expressed in Bonser v. La Macchia [3] and in Reg. v. Bull [4] , and in what I have so far written in these cases, I am of opinion that low water on the coasts of the colonies formed the relevant part of the boundary of each - islands specifically made part of a colony excepted - and that no colony in 1900 had obtained any proprietary or legislative or other rights over the territorial seas or the subjacent soil. These and their control as such remained with the Imperial Government. Such territorial seas as washed the shores of islands forming part of the colony are, in my opinion, in the same position as the territorial waters washing the shores of the mainland of the colony.

1. (1969) 122 C.L.R. 177. 2. (1974) 131 C.L.R., at p. 219.

The third issue might properly be said not to arise if what I have already written is acceptable. But I propose to express myself about it, as, in my opinion, it does provide an opportunity of disposing of these cases upon grounds essentially involved in the creation of a federation such as that for which the Australian Constitution provides.

In dealing with the preceding issue, I have concluded that in 1900 none of the colonies had proprietary rights in the territorial sea, its subjacent soil or superjacent airspace or in the continental shelf and incline; and that none of them had legislative power over any of those items. However, for the purpose of discussing this third issue, I assume that, contrary to my expressed view, the Australian colonies did have such rights and such legislative power. Both must have been derived from the Imperial Parliament or executive and both were subject to the power of the Imperial Parliament to withdraw them and vest them elsewhere.

The Australian Constitution was an Act of the Imperial Parliament. Covering cl. 9 gave effect to the agreement of the people of the Australian colonies to unite in one indissoluble union. It conformed to the wishes of those people by enacting a federal constitution. A new colonial polity was brought into existence. There was no statement of the territory of the new entity, the Commonwealth of Australia. But it is evident that it was the sum of the colonial territory which had been placed under government by the Imperial authorities, with a territorial boundary ending at low-water mark. On the passage of the Imperial Act, those colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss. 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Constitution of the Commonwealth. But those constitutions and the powers of the States were subjected to the Australian Constitution. They were not the same as they had been before federation. The constitutions were continued "subject to this Constitution". The federal nature of the Constitution is seen in the distribution of constitutional power between the new Commonwealth and its constituent States, specific legislative topics being assigned to the Commonwealth and the residue to the States, paramountcy being given to Commonwealth laws where inconsistency with State laws exists. That residue is only discoverable when the full extent of Commonwealth power has been elucidated.

As already observed, power with respect to external affairs was assigned to the Commonwealth. That power at the very least included all matters of international concern. As I have already said, "once low-water mark is passed the international domain is reached" [5] .

1. Ante, p. 360; (1950) 339 U.S., at p. 719 [94 Law. Ed., at p. 1228.]

Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth, it must necessarily of its nature be so as to international relations and affairs. Only the Commonwealth has international status. The colonies never were and the States are not international persons.

Whilst the new Commonwealth was upon its creation the Australian colony within the Empire, the grant of the power with respect to external affairs was a clear recognition, not merely that, by uniting, the people of Australia were moving towards nationhood, but that it was the Commonwealth which would in due course become the nation state, internationally recognized as such and independent. The progression from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs. Section 61, in enabling the Governor-General as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided. That prospect in due course matured, aided in that behalf by the Balfour Declaration and the Statute of Westminster and its adoption.

A consequence of creation of the Commonwealth under the Constitution and the grant of the power with respect to external affairs was, in my opinion, to vest in the Commonwealth any proprietary rights and legislative power which the colonies might have had in or in relation to the territorial sea, seabed and airspace and continental shelf and incline. Proprietary rights and legislative powers in these matters of international concern would then coalesce and unite in the nation. That, in my opinion, was the intendment of the Constitution. It is far easier to conclude that the Act of the Imperial Parliament setting up the federal Constitution intended to vest such matters of international consequence in the new Commonwealth, withdrawing them from the former colonies, than it was to decide that when an American State, already an independent nation in possession of international rights, entered the Union, these rights became vested in the United States. Yet that is received doctrine in the United States expressed in decisions which have recently been affirmed: see United States v. California [6] ; United States v. Texas [7] ; United States v. Louisiana [8] and United States v. Maine [9] . The Supreme Court's reasons were applicable to the circumstances of the States originally entering the Union. These were then independent nation states. Yet without so clear an indication as the grant of the power with respect to external affairs, those States did not retain any rights or legislative power over the territorial sea, subsoil, etc. Later entrants to the Union, coming in on an "equal footing", were in the same situation.

1. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 2. (1950) 339 U.S. 707 [94 Law. Ed. 1221]. 3. (1950) 339 U.S. 699 [94 Law. Ed. 1216]. 4. (1975) 420 U.S. 515 [43 Law. Ed. 2d 363].

This result conforms, in my opinion, to an essential feature of a federation, namely, that it is the nation and not the integers of the federation which must have the power to protect and control as a national function the area of the marginal seas, the seabed and airspace and the continental shelf and incline. This has been decided by the Supreme Courts of the United States and of Canada: see above citations and Reference re Ownership of Offshore Mineral Rights [10] . I am satisfied with the reasons given by those Courts for their conclusions. The Canadian Supreme Court reached its conclusion after a close examination of the case law. I do not disagree with anything that is said in the Supreme Court's judgment about that law, though for my part I have found it unnecessary to deal with it in these my reasons. However, the Supreme Court's conclusion depends in no small degree upon the fact of Canada's independent nationhood and its recognition as such by the nations of the world. Appropriately, it is concluded that such international rights and obligations as derive from the Convention on the Territorial Sea devolve on Canada and not on any province of the federation. I can find no reason to differentiate in relevant respects the circumstances of this federation from those of the other great federations, except to say that the result of the cases to which I have referred more obviously flows in the case of our Constitution.

It is my opinion, therefore, that upon the enactment of the Constitution, any rights or powers which the former colonies might have had in the territorial sea, seabed and airspace or in the continental shelf and incline became vested in the Commonwealth. The emergence of Australia as an independent nation state confirmed this situation.

Therefore, however the matter be viewed, in my opinion, the Act is valid in enacting the sovereignty and sovereign rights in respect of the territorial sea and contiguous zone and of the continental shelf for which the respective Conventions provide. That sovereignty and those sovereign rights are exercisable in and in respect of the territorial sea and the continental shelf. The Act, in my opinion, validly vests that sovereignty and these sovereign rights in the Crown in right of the Commonwealth but any Act or law operating within Australia to implement either of those Conventions or the powers they give must be itself a valid law of the Commonwealth. But if there is such a law, it may operate on matters and things which otherwise could not be the subject of a law of the Parliament.

The question in these proceedings for determination by the Full Court is whether the Seas and Submerged Lands Act 1973 is a valid law.

The seas and submerged lands are not within Australia's land territory or its inland waters. The Act presumes that a belt of sea adjacent to the coast of Australia and Tasmania is a territorial sea for the purposes of the international Convention on the Territorial Sea and Contiguous Zone and that the seabed and subsoil of submarine areas adjacent to the coast, but outside the area of the territorial sea of Australia, is a continental shelf for the purposes of the international Convention on the Continental Shelf.

Australia is a state in the eye of international law and being a coastal state and a party to each of these Conventions it was its right and duty to legislate so as to receive these articles into Australian municipal law. The Parliament did this by embodying in the Act under consideration, a schedule setting out verbatim the articles of the former Convention and a schedule setting out verbatim the articles of the latter Convention. Each schedule is part of the Act and of the enactment: Craies on Statute Law, 7th ed. (1971), pp. 224-225.

The Act implements the stipulations in the Convention on the Territorial Sea as to the limits thereof (ss. 7-9), and the stipulations in the Convention on the Continental Shelf as to the limits thereof.

The long title of the Act indicates that the subject of the Act is sovereignty in respect of regions beyond Australia's territorial jurisdiction.

The preamble of the Act recites that the territorial sea of Australia, the airspace over it and the soil beneath it are "within the sovereignty of Australia". There is also a recital about the continental shelf. This is:

and Whereas Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources:

The territorial sea and its soil (mare et solum) and the continental shelf (solum) are in an area proper for the operation of rules of international law.

As regards "sovereignty" Wheaton (Elements of International Law, English ed. (1878), pp. 28-29) said:

Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally.

Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public laws, droit public interne, but which may more properly be termed constitutional law.

External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law.

The controversial sections of the Act are ss. 6, 10 and 11. Each is in form, a declaratory provision. The presumption against giving an Act by construction a restrospective operation is not applicable to a declaratory Act: Craies on Statute Law, 7th ed. (1971), pp. 58, 395. That a retrospective operation to 1st January 1901 is intended appears from par. (a) of s. 14, a saving clause of the Act.

The preamble provides an explanation of the terms used in ss. 6, 10 and 11.

6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth.

10. It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the seabed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth.

11. It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

The object of each section is, in my opinion, to give legal efficacy to the rules of the Convention to which it relates. In effect each section authorizes the Executive Government of the Commonwealth to administer the rules, to fulfil the duties of Australia as a coastal state under the rules, and to exercise the rights given by the rules to a coastal state. Section 11 in particular authorizes the Executive Government of the Commonwealth to exercise the sovereign rights of Australia, in its capacity as a coastal state, which are mentioned in the Convention on the Continental Shelf. The rules and the duties and rights of Australia under the rules are external affairs from Australia's standpoint. The Parliament has legislated in this Act to incorporate them verbatim in the Act, and the Act makes no addition to or omission from them. The rules of international law are matters that concern the Crown and fall within its prerogative in relation to foreign affairs. This prerogative could not be used in any way that would conflict with the articles of either of these international Conventions if validly carried into effect by this Act. The power to make laws with respect to external affairs authorized Parliament to incorporate the articles in the Act, thus giving to them the force of laws of the Commonwealth. In R. v. Burgess; Ex parte Henry [11] , Latham C.J. said that s. 51 (xxix.) of the Constitution gave Australia "full control of her external affairs" and "power to legislate to give effect to international obligations binding the Commonwealth or to protect national rights internationally obtained by the Commonwealth whenever legislation was necessary or deemed to be desirable for this purpose". In the same case Latham C.J. said, "In fact other countries deal with Australia and not with the States of the Commonwealth and this practice follows the evident intention of the Constitution" [12] . 1. (1936) 55 C.L.R. 608, at p. 644. 2. (1937) 55 C.L.R., at p. 645.

The States dispute that at the establishment of the Commonwealth the sovereignty over the territorial sea of Australia did arise in the Crown in the right of the Commonwealth, as the Act purports to declare. The States claim that, as colonies, the dominion of each of them over its territorial waters was established by international law, and, broadly, the dominion extended from low-water mark a marine league outward to the open sea. This means that the sea, the soil beneath it within that limit, and airspace over it was for all purposes part of a colony's territory.

In Reg. v. Keyn [13] , Cockburn C.J. held, in effect, that English law had never recognized that the English state had a general dominion over territorial waters; that, except for special purposes defined by statute, it held such waters to be part of the high seas. The judgment of Cockburn C.J. and of the majority is an answer to the claim that any colony had been invested by Imperial authority with territorial jurisdiction extending over territorial waters.

The boundary limits of the colonies, read in the course of the argument, do not satisfy me that the boundary of any colony was set in the high seas.

The sovereignty to which the Act relates is over regions which were not land territory or internal waters of any colony at the time of the establishment of the Commonwealth. It follows from this that at the time of the establishment of the Commonwealth they did not become its land territory or internal waters. In the Engineers' Case [14] , Knox C.J., Isaacs, Rich and Starke JJ., in a joint judgment, said:

The Act 63 & 64 Vict. c. 12, establishing the Federal Constitution of Australia, being passed by the Imperial Parliament for the express purpose of regulating the royal exercise of legislative, executive and judicial power throughout Australia, is by its own inherent force binding on the Crown to the extent of its operation. It may be that even if s. V. of the Act 63 & 64 Vict. c. 12 had not been enacted, the force of s. 51 of the Constitution itself would have bound the Crown in right of a State so far as any law validly made under it purported to affect the Crown in that right; but, however that may be, it is clear to us that in presence of both s. V. of the Act and s. 51 of the Constitution that result must follow. The Commonwealth Constitution as it exists for the time being, dealing expressly with sovereign functions of the Crown in its relation to Commonwealth and to States, necessarily so far binds the Crown, and laws validly made by authority of the Constitution, bind, so far as they purport to do so, the people of every State considered as individuals or as political organisms called States - in other words, bind both Crown and subjects. The functions of the Crown include the prerogative of the Crown in relation to foreign affairs. Even if the most limited criterion be applied, a country's territorial waters, the soil beneath them, and the country's shelf, in themselves, have an external aspect and are matters of the country's foreign relations. 1. (1920) 28 C.L.R. 129, at pp. 152-153.

Professor Holdsworth in Essays in Law and History (p. 267) wrote, on the topic "The Relation of English Law to International Law" the following:

In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become, a source of, English law.

The Territorial Waters Jurisdiction Act 1878 gave the courts the jurisdiction which the minority of judges in this case had held that they possessed; and its declaratory form is some evidence that the legislature considered that their views were correct. Nevertheless, I think that the opinion of Cockburn C.J. and the majority of the judges had come to be more in accord with the principles of modern English law than the opinion of the minority which represents the older view that international law is per se part of the law of England.

I quote a statement in Wheaton's Elements of International Law on maritime territorial jurisdiction which reads as follows:

The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State. The general usage of nations super-adds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation. The English edition published 1878 adds the following (pp. 237-239): This statement requires some qualification. It has now been decided in England by the celebrated case ofThe Franconia [15] , that the courts of this country have no jurisdiction over a criminal offence committed on board a foreign ship while that ship is on the open sea, but within three miles of the shore of England. That the question is one of great difficulty and doubt, is shown by the fact that of the fourteen judges who attended during the arguments in The Franconia, seven pronounced against the jurisdiction, while six claimed it. One who agreed with the majority died before judgment was delivered. This case decides that by English law as at present administered, no jurisdiction is claimed over criminal offences committed beyond low water mark, unless they have taken place on board a British ship, or within waters admitted on all hands to be territorial, such as ports, harbours, bays, &c. But it still remains a doubtful question, whether any portion of the open sea may be claimed as part of the territory, and if so to what extent, and for what purposes, it may be so claimed.

No precise rule can be derived from the writings of publicists. The suggestion of Bynkershoek given in the text, that the sea, as far as a cannon shot will reach from the shore, should belong to the State it borders, has been adopted by many writers, and has generally been assumed to be a distance of three miles. It is evident, however, that on this assumption, consistency requires the limit to be increased in proportion to the increased range of modern artillery. But in the practical application of the rule, in respect of the particular distance, and in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, a great difference of opinion is to be found. The only point upon which publicists are more or less unanimous, is that some zone of sea (most of them fix it at three miles), is for some purposes subject to the dominions of the local State. "Even if entire unanimity had existed," said Lord Chief Justice Cockburn, "the question would still remain how far the law, as stated by the publicists, had received the assent of the civilised nations of the world The question is not one of theoretical opinion, but of fact, and fortunately, the writers upon whose statements we are called upon to act, have afforded us the means of testing those statements by a reference to facts. They refer us to two things, and to these alone - treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the State shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in ships of other nations, has never been made the subject-matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic discussion When the treaties referred to by text writers are looked at, they will be found to relate to two subjects only, - the observance of the rights and obligations of neutrality, and the exclusive right of fishing." In these respects nations have followed text writers, and adopted three miles as a convenient distance, not as matter of existing right, but as matter of mutual concession and convention. Such treaties would be superfluous, if the general assent of nations had given to each a three-mile belt of the sea surrounding its shores. As regards usage, "the only usage found to exist, is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined." His Lordship comes to the conclusion that "it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes, to the local State," and that "a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other States. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but from the acquiescence of other States, some outward manifestation of the national will, in the shape of open practice, or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control."

It would be strange if the Executive Government of the Commonwealth which, as Latham C.J. said in R. v. Burgess; Ex parte Henry [16] , can deal administratively with the external affairs of the Commonwealth, could not negotiate and ratify an international Convention settling the rules of international law applicable to the subjects of the Conventions to which the Act gave effect. It is not inconsistent with the Commonwealth of Australia Constitution Act (63 & 64 Vict. c. 12), which, indeed, gave effect to the agreement of the people of the colonies to unite in an indissoluble federal Commonwealth under the Crown and under the Constitution thereby established. The Constitution is s. 6 of that Act.

In Wheaton's Elements of International Law the following statement on "Federal Unions" is made at p. 57:

the federal government created by the act of union is sovereign and supreme, within the sphere of the powers granted to it by that act; and the government acts not only upon the States which are members of the confederation, but directly on the citizens. The sovereignty, both internal and external, of each several State is impaired by the powers thus granted to the federal government, and the limitations thus imposed on the several State governments. The compositive State, which results from this league, is alone a sovereign power. Hall's International Law, 6th ed., pp. 24-25, states: The distinguishing marks of a federal state upon its international side consist in the existence of a central government to which the conduct of all external relations is confided, and in the absence of any right on the part of the states forming the corporate whole to separate themselves from it. Under the Constitution of the United States, for example, the central authority regulates commerce, accredits diplomatic representatives, makes treaties, provides for the national defence, declares war and concludes peace; the individual states, on the other hand, are expressly forbidden to enter into any agreement with foreign powers without the assent of Congress, to maintain military or naval forces, or to engage in war. Section 61 (executive power) of the Constitution of Australia is applicable in relation to external affairs and s. 51 (xxix.) is a power to make laws with respect to that subject matter. The Act under consideration here is not extraordinary even though Australia is a federal Commonwealth.

The land underlying the sea adjacent to the coast of the States respectively, or the soil that underlies it or the sea or any part of the shelf of that land are not mentioned in the Constitution. No rights of the States in respect of this land or sea are implicitly reserved by the Constitution. As a whole these regions are an appendage of the continent and a sphere proper for the operation of international law. A necessary intendment of the Act, 63 & 64 Vict. c. 12, would I think be that the sovereignty which the Crown possessed in respect of such regions would be exercisable by the Executive Government of the Commonwealth in accordance with the Constitution. In my opinion ss. 6, 10 and 11 respectively accomplish that object.

The Seas and Submerged Lands Act 1973, is, in my judgment, a law entirely supported by s. 51 (xxix.) of the Constitution and is not in conflict with s. 123 of the Constitution.

In these proceedings, respectively brought by each of the six States against the Commonwealth, we are called upon to decide whether the Seas and Submerged Lands Act 1973 ("the Act") is a valid law of the Commonwealth.

The Act contains three main sections to which its other provisions may properly be regarded as incidental. These three sections deal respectively with sovereignty in respect of the territorial sea, sovereignty in respect of internal waters and sovereign rights in respect of the continental shelf. Section 6, which deals with the territorial sea, reads as follows:

It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth. The expression "the territorial sea" means "the territorial sea of Australia": s. 5. No further definition of the term is attempted by the Act. However, the Governor-General is given power by proclamation to declare, not inconsistently with s. II of Pt I of the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea, and for the purposes of such a proclamation he may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea, or of any part of it, is to be measured: s. 7.

Section 10 deals with internal waters. It provides as follows:

It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth.

In the Act, the term "continental shelf" has the same meaning as in the Convention on the Continental Shelf: s. 3(1). Article 1 of that Convention defines the term as follows:

For the purpose of these articles, the term "continental shelf" is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth. The Governor-General has power by proclamation to declare, not inconsistently with the Convention on the Continental Shelf or any relevant international agreement to which Australia is a party, the limits of the whole or any part of the continental shelf of Australia: s. 12.

The Act contains three saving provisions in ss. 14, 15 and 16. Those sections read as follows:

14. Nothing in this Part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and -

(a) were, on 1st January, 1901, within the limits of a State; and

or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters.

15. Nothing in this Part shall be taken to vest in the Crown in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works.

(a) do not limit or exclude the operation of any law of the Commonwealth or of a Territory in force at the date of commencement of this Act or coming into force after that date; and

(b) do not limit or exclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part.

The Act recites that Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone and to the Convention on the Continental Shelf. Each of those Conventions was signed at Geneva on 29th April 1958. A copy of each is contained in a schedule to the Act. It is unnecessary to do more than give a brief indication of the nature of their provisions. The Convention on the Territorial Sea and the Contiguous Zone declares that the sovereignty of a state extends, beyond its land territory and its internal waters, to the territorial sea and to the airspace above it as well as to its bed and subsoil: s. I of Pt I. The limits of the territorial sea are dealt with in s. II of Pt I. Having regard to the provisions of s. 10 of the Act it should perhaps be mentioned that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast, but in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured: Arts. 3, 4(1). Ships of all states are to enjoy the right of innocent passage which is defined and regulated by s. III. A coastal state is given the right to exercise, in a zone of the high seas contiguous to its territorial sea, the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea or punish any such infringement committed within its territory or territorial sea: Pt II.

By the Convention on the Continental Shelf it is provided that the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources: Art. 2(1). The rights of the coastal state over the continental shelf, which are defined and qualified by other provisions of the Convention, do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters: Art. 3.

Before it can be decided whether the Act is valid, it is necessary to determine its true meaning. Sections 6 and 10 speak of "sovereignty". That word is at best imprecise, but when used in relation to a federation it assumes protean qualities. No one can doubt that, for the purposes of international law, Australia is now a sovereign state. It is "a nation which governs itself by its own authority and laws without dependence on any foreign power" (see Duff Development Co. Ltd. v. Government of Kelantan [17] where a passage from Vattel is cited). However, for the purposes of the municipal law of Australia there exists that division of sovereign authority which is characteristic of, if not essential to, a federal constitution. All the powers of government are distributed between the Commonwealth and the States. The Convention on the Territorial Sea and the Contiguous Zone deals with sovereignty only for the purposes of internatonal law. It recognizes that a coastal state is, for the purposes of international law, sovereign of the territorial sea as it is of its land territory and internal waters, but it is not concerned with the way in which the municipal law of any coastal state distributes its sovereignty or with the question where, according to the constitution and laws of any state, the powers of government are reposed. The Convention recognizes that the sovereignty of Australia extends to its territorial sea; it says nothing as to whether that sovereignty is vested solely in the Commonwealth or is divided between the Commonwealth and the States.

If the Act did no more than echo the Convention, and declared that for the purposes of international law the Commonwealth is the state recognized as the sovereign of the territorial sea, as it is of the land, there would be no doubt as to its validity. If the intention of the Act were merely to give effect to the Convention, it would be natural to start with the assumption that "sovereignty" has the same meaning in the Act as in the Convention. However, there are a number of indications that the purpose of the Act is to do a great deal more than simply give effect to the Convention. Sections 6 and 10 do not declare that the sovereignty of Australia extends beyond its land territory and its internal waters to the territorial sea; they declare and enact that the sovereignty in respect of the territorial sea and internal waters is vested in, and exercisable by, the Crown in right of the Commonwealth. Although it is not very material, I should say that it appears to me that the words "vested in" govern "the Crown in right of the Commonwealth" and not merely "the Commonwealth". The reference to "the Crown in right of the Commonwealth" indicates that the Act, unlike the Convention, distinguishes between the position of the Commonwealth and the States. Section 14 also makes it clear that the Act is concerned with the Commonwealth not as a person at international law, but vis-à-vis the States. The sovereignty which the Act vests in the Crown in right of the Commonwealth is intended to carry with it the ownership of the seabed and subsoil; if this were not so, the provisions of s. 15 would be unnecessary. Moreover, s. 16 appears to assume that if it were not for the provisions of that section the operation of all State laws in the territorial sea and internal waters might be excluded. When the Act says that the Crown in right of the Commonwealth is sovereign, it does not mean only that when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail; it asserts an ampler sovereignty than that. The Act, on its proper construction, in effect declares that the Crown in right of the Commonwealth has plenary and unlimited powers over the territorial sea and internal waters, and is the owner of the seabed and subsoil beneath them.

When s. 11 refers to "the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia", it does not anywhere indicate that those rights are to be limited by reference to the Convention on the Continental Shelf. The section in effect assumes that Australia has sovereign rights in respect of the continental shelf and vests those rights in, and makes them exercisable by, the Crown in right of the Commonwealth.

A final question of construction that arises is whether ss. 6 and 10 intend to enable the Executive Government of the Commonwealth to exercise all the powers of sovereignty - legislative, executive and judicial - in respect of the territorial sea and internal waters. The use of the words "and exercisable by" after "is vested in" in those sections suggests that it was intended not only to assert sovereignty but also to give the Crown the right to exercise all the powers which belong to sovereignty. However, the expression "the Crown in right of the Commonwealth" does not naturally refer to the Governor-General or the Governor-General in Council. The Act itself, in ss. 7 and 8, confers powers upon the Governor-General by that name and this strengthens the view that "the Crown" in the Act does not mean the Executive Government. In my opinion, the Act does not purport to confer legislative, executive and judicial powers on the Governor-General; its intention is to assert that the Crown in right of the Commonwealth is invested with, and may exercise, sovereignty over the territorial seas and internal waters. Further legislation would be necessary to enable any organ or instrumentality of the Commonwealth to exercise any specific power. On this view no question arises as to whether the Parliament has in effect abdicated its legislative power or has improperly commingled judicial and other powers.

In my opinion there is no doubt that the Act will be valid if, when it was passed, the territorial sea and internal waters (and the airspace above and the seabed and subsoil below them) were already subject to the sovereignty of the Crown in right of the Commonwealth, and the Crown in such right already had sovereign rights over the continental shelf. It cannot be doubted that the Parliament has power to declare the existence of sovereignty or sovereign rights that have previously become vested in the Crown in right of the Commonwealth. Further, the Crown in right of the Commonwealth had power to acquire sovereignty over the territorial sea and internal waters, and sovereign rights over the continental shelf, if that sovereignty and those sovereign rights were not already vested in the Crown in some other capacity, e.g. in right of the States, and the Parliament had power to legislate to give effect to such an acquisition. The Act will, however, be invalid in whole or in part if, when it was passed, the territorial sea or inland waters formed part of the territory of any of the States, or the States had rights of property in the bed and subsoil beneath those waters, or in the continental shelf.

In Post Office v. Estuary Radio Ltd. Diplock L.J. said [18] :

It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of Parliament is not required. That statement, in my respectful opinion, correctly states the law. The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state. For statements and illustrations of this principle it is enough to refer to Salaman v. Secretary of State in Council of India [19] ; Sobhuza II v. Miller [20] , and Secretary of State for India v. Sardar Rustam Khan [21] . Those cases were concerned with the acquisition of territory on land but the same principle applies where the Crown, in the course of its relations with other nations, asserts sovereignty over an area of sea, or sovereign rights over the continental shelf, either pursuant to international treaty or even by unilateral action. The prerogatives of the Crown to acquire new territory or extend its sovereignty or jurisdiction are, in my opinion, available to the Crown in right of the Commonwealth. 1. [1968] 2 Q.B. 740, at p. 753. 2. [1906] 1 K.B. 613, esp. at pp. 639-640. 3. [1926] A.C. 518. 4. [1941] A.C. 356, esp. at pp. 370-371.

An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of new sovereign rights over the continental shelf, might be effected by executive act, but might validly be authorized, ratified or given recognition by legislation. In my opinion, the power conferred upon the Parliament by s. 51 (xxix.) to make laws with respect to external affairs would authorize legislation of that kind. It is quite unnecessary for present purposes to consider the difficult questions to which the words of s. 51 (xxix.) can in some cases give rise. The extension of the sovereignty of the Commonwealth over territory, whether on land or at sea, which is not already part of the Commonwealth, is a matter that affects the external relations of the Commonwealth. An assertion of sovereignty in those circumstances would be entirely international in character and would not affect the rights of the States but would, on the other hand, involve the Commonwealth's relations with other nations. The same would of course be true of an assertion of sovereign rights in the continental shelf, assuming that to be no part of the territory of the States. Legislation which gave effect to an extension of sovereignty or sovereign rights in those circumstances would be legislation with respect to external affairs on the narrowest view of s. 51 (xxix.). It would be unnecessary (but perhaps possible) also to justify such legislation by reference to the principle that Commonwealth powers extend to "whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government" (Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth [22] , and see Victoria v. The Commonwealth and Hayden [23] ).

1. (1945) 71 C.L.R. 237, at p. 269; also at p. 266. 2. (1975) 134 C.L.R. 338.

Once the Commonwealth had extended its sovereignty, or had newly acquired sovereign rights, it could make laws to provide in what organs the sovereignty and sovereign rights should be vested and by what instrumentalities the powers attendant on them might be exercised. Where new land territory is acquired, laws for the government of that territory would, it appears, be made under the power conferred by s. 122 rather than that conferred by s. 51 (xxix.): Fishwick v. Cleland [24] . However, I would gravely doubt whether s. 122 provides a source of power to legislate for the government of an area of the ocean or of the continental shelf. A territory to which s. 122 refers must be capable of representation in the Parliament and it is difficult to regard a tract of sea detached from the land as such a territory and impossible to treat the continental shelf as answering that description. However, it could not be doubted that the Parliament would have power to make laws for the exercise of the Commonwealth's sovereignty and sovereign rights over an area of sea or over the continental shelf; such power would arise either from s. 51 (xxix.), s. 51 (xxxix.) or from the status of the Commonwealth as a national government.

The position would, however, be entirely different if the territory over which the Commonwealth claimed sovereignty or sovereign rights was already part of the territory of a State. A law to divest powers from a State and vest them in the Commonwealth could not be regarded as a law with respect to external affairs; such a law would relate to the internal organization of the nation and not to its international relations. The existence of the Commonwealth as a state and the exercise of its functions as a national government do not enable it to alter at will the distribution of powers made by the Constitution. Moreover, it is well settled that the only power given by s. 51 to make laws for the acquisition of property is that conferred by par. (xxxi.), which is subject to the condition that the acquisition must be on just terms: Re Döhnert Müller Schmidt and Co.; Attorney-General (Cth) v. Schmidt [25] . The power conferred by s. 122 is not subject to a similar limitation: Teori Tau v. The Commonwealth [26] ; that, however, does not assist the Commonwealth in the present case. If, when the Act was passed, the seabed and subsoil under the territorial sea and internal waters formed part of the territory of the State the Act, in so far as it purported to acquire without compensation proprietorial rights for the Commonwealth, would be plainly invalid.

1. (1961) 105 C.L.R. 361, at pp. 370-372. 2. (1969) 119 C.L.R. 564.

It follows from what I have said that the Act cannot be justified as having been made for the purpose of carrying out or giving effect to the Conventions. The external affairs power authorizes the Parliament to make a law for the purpose of carrying out or giving effect to a treaty, at least if the treaty is in reference to some matter indisputably international in character. The tests suggested in R. v. Burgess; Ex parte Henry [27] for determining whether a statutory enactment is made for the purpose of carrying out or giving effect to a treaty are conveniently collected in the judgment of Menzies J. in Airlines of New South Wales Pty. Ltd. v. New South Wales [No. 2] [28] . Whichever of those tests is applied, it should in my opinion be held that the Act was not made for such a purpose. As I have already pointed out, the Conventions are not concerned with the manner in which the rights and powers granted by international law to coastal states are distributed by the municipal law of a coastal state which is a federation, whereas the principal object of the Act is to effect such a distribution for the purposes of the municipal law of Australia. The existence of the Conventions no more justifies the Parliament in redistributing the powers of government in respect of the territorial waters of the Commonwealth than it would justify a redistribution of powers in respect of the land territory of the Commonwealth. Moreover, some important provisions of the Conventions are not reproduced in the Act. A most significant omission is that of any reference to the right of innocent passage to which the sovereignty recognized by the Convention on the Territorial Sea and the Contiguous Zone is made subject. Similarly, the Act does not incorporate the limitations which the Convention on the Continental Shelf places on the sovereign rights of a coastal state over the continental shelf.

1. (1936) 55 C.L.R. 608. 2. (1965) 113 C.L.R. 54, at p. 141.

The questions raised in these cases as to the scope and nature of the powers of the Commonwealth are in my opinion neither difficult nor doubtful. The difficult questions relate to the position of the States; they are whether, on 4th December 1973 when the Act was passed, the territorial sea and internal waters, and the bed and subsoil beneath them, and the continental shelf formed part of the territory of the States or whether the Crown in right of the States was then the owner of that bed and subsoil and of the continental shelf.

It is convenient first to consider whether by the law of England the territorial sea forms part of the territory of the Crown and whether the Crown is the owner of the bed of the sea between low-water mark and the outer limit of the territorial sea. (It is unnecessary, I think, to discuss separately the ownership of the subsoil, for if the Crown is the owner of the bed there can be no question that it is the owner of the subsoil as well.) These two questions, although related, are separate, and a decision that the territorial sea is not part of the territory of the Crown does not necessarily mean that the Crown is not the owner of the seabed. If these questions are answered in the affirmative it will become necessary to consider whether at federation the territorial sea adjacent to a colony was part of the territory of the Imperial Crown, or part of the territory of the colony, and whether the bed of the territorial sea adjacent to a colony was owned by the Imperial Crown or by the Crown in right of the colony. If the entitlement was that of the Crown in right of the colony, the question will arise whether it now vests in the Crown in right of the State.

On behalf of the Commonwealth, much reliance was placed on Reg. v. Keyn [29] , which is said to establish that the territory of the Crown does not extend beyond the land mass, that is, below low-water mark. Before I discuss that case, I would turn to the decisions, given before Reg. v. Keyn, in which consideration was given to the proprietary rights of the Crown in respect of the bed of the sea.

The authorities, in my opinion, leave no doubt that according to the law of England the soil of the sea below low-water mark, adjoining the coasts of England or English territory, is the property of the Crown, unless a subject has acquired a right to it by grant or prescription. If there is room for debate it is as to how far out to sea the right of the Crown extends. That question must be answered by reference to English, not international, law. I need not refer to past controversies or present disagreements as to the limits of the territorial sea. Great Britain and Australia now claim that the breadth of the territorial sea is one marine league - it extends to the three-mile limit. Before the eighteenth century Britain's claims were more extensive. In some cases it has been unnecessary to consider or to decide to what distance seawards from low-water mark Crown ownership extends, but in my opinion it can now be taken as established that it extends to the three-mile limit.

The question whether the Crown owns the land below low-water mark fell for decision in the Privy Council in Benest v. Pipon [30] . In that case the respondent, the lord of a manor, who claimed the exclusive right to cut seaweed growing on rocks below low-water mark off the coast of Jersey, obtained from the courts of Jersey an order granting him permission to notify the appellant that he should desist in future from going to the rocks and appropriating the seaweed, and ordering the appellant to pay damages and costs. On appeal to the Privy Council the judgment was reversed and a new trial directed because the respondent had failed to prove that he had acquired the right which he claimed, either by grant or prescription. Lord Wynford said [31] :

The sea is the property of the King, and so is the land beneath it, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a subject has either had a grant from the King, or has exclusively used for so long a time as to confer on him a title by prescription This is the law of England, and the cases referred to prove that it is the law of Jersey. 1. (1829) 1 Knapp 60 [12 E.R. 243]. 2. (1829) 1 Knapp, at pp. 67-68 [12 E.R., at p. 246].

In Attorney-General v. Chambers [32] , a dispute arose between the Crown and certain landowners as to the ownership of minerals which lay under the sea and the contiguous seashore. It does not appear to have been disputed that the Crown was entitled to the minerals under the sea and the shore - the question was how far landwards the Crown's right to the seashore, and therefore the minerals, extended. However, Lord Cranworth L.C. in his judgment apparently regarded the concession that the Crown was entitled to the minerals under the sea as correctly made; he said [33] :

What, in the absence of all evidence of particular usage, is the limit of the title of the Crown to the seashore? The Crown is clearly in such a case, according to all the authorities, entitled to the "littus maris" as well as to the soil of the sea itself adjoining the coasts of England. 1. (1854) 4 De G.M. & G. 206 [43 E.R. 486]. 2. (1854) 4 De G.M. & G., at p. 213 [43 E.R., at p. 489].

In Gammell v. Commissioners of Woods and Forests [34] the House of Lords held that salmon-fishings in the open sea round the coast of Scotland, unless parted with by grant, belonged exclusively to the Crown. It had been argued that the claim was too wide, because the fishings had no definite seaward limit. Lord Chelmsford L.C. disposed of this difficulty by holding that the right extended only to those modes of fishing which implied either the connexion of the apparatus with the coast, or the use and possession of the coast [35] . Lord Cranworth, after mentioning the doubts he had been caused by the indefinite nature of the claim, went on to say [36] :

I think an observation that was made is not unentitled to considerable weight, namely, that if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the Crown, in England at least, to the bed of the sea, because that is undefined; yet nobody doubts that such a right exists. Lord Wensleydale expressed agreement with the Lord Chancellor's judgment and added [37] : besides the limits he has stated of the fishing being connected with the coast, it may be worth while to observe that it would hardly be possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country, that which is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession. 1. (1859) 3 Macq. 419. 2. (1859) 3 Macq., at pp. 454-455. 3. (1859) 3 Macq., at p. 465. 4. (1859) 3 Macq., at pp. 465-466.

The question was again discussed in the House of Lords in Gann v. Free Fishers of Whitstable [38] . The company of Free Fishers, which had become entitled to a royalty of fishery and oyster dredging in "the arm of the sea which forms the estuary of the Thames, opposite to the manor of Whitstable in the open sea way, being the high road for the passage of vessels" [39] , claimed to be entitled to exact tolls from vessels which anchored on the fishery below low-water mark. This claim succeeded in the Common Pleas and the Exchequer Chamber but failed in the House of Lords. Both of the Courts below held that the Crown, being entitled to the soil of the seabed, could grant it to a subject and with it the right to charge a toll for anchoring upon it [40] and [41] . In reversing the decisions below, the House of Lords did not deny that the Crown owned the soil of the seabed; they held that the grant by the Crown of any part of the soil below low-water mark was by the common law subject to the public right of navigation, of which the right to anchor is an essential part, and that no property could be claimed in the soil except subject to this overriding right [42] . The remarks of two members of the House, Lord Westbury L.C. and Lord Wensleydale, as to the property of the Crown in the bed of the sea, appear to have been confined to internal waters [43] . However, the judgment of Lord Chelmsford was not so limited. He said [44] :

The case of the respondents is very shortly and distinctly stated by Lord Chief Justice Erle in his judgment in this case. He says, "The soil of the sea shore, to the extent of three miles from the beach, is vested in the Crown, and I am not aware of any rule of law which prevents the Crown from granting to a subject that which is vested in itself. If the Crown did grant the soil of the shore in question, it may well be that the right of taking an anchorage toll of 1s. was granted with it."

With great respect for the learned Chief Justice, I do not think it can be assumed as an unquestionable proposition of law, that, as between the Crown and its subjects, the sea shore, to the extent mentioned, is the property of the Crown in such an absolute sense as that a toll may be imposed upon a subject for the use of it in the regular course of navigation. In stating the right of the Crown in the sea shore, the text writers invariably confine it to the soil between high and low water mark. The three miles limit depends upon a rule of international law, by which every independent State is considered to have territorial property and jurisdiction in the seas which wash their coasts within the assumed distance of a cannon-shot from the shore. Whatever power this may impart with respect to foreigners, it may well be questioned whether the Crown's ownership in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation.

1. (1865) 11 H.L.C. 192 [11 E.R. 1305]. 2. (1865) 11 H.L.C., at p. 208 [11 E.R., at p. 1312]. 3. (1861) 11 C.B. (N.S.) 387, at p. 413 [142 E.R. 847, at p. 857]. 4. (1863) 13 C.B. (N.S.) 853, at pp. 857-860 [143 E.R. 337, at pp. 339-340]. 5. (1865) 11 H.L.C., at p. 209 [11 E.R., at p. 1312]. 6. (1865) 11 H.L.C., at pp. 207, 210-211 [11 E.R., at pp. 1312, 1313]. 7. (1865) 11 H.L.C., at pp. 217-218 [11 E.R., at pp. 1315-1316].

In Duchess of Sutherland v. Watson [45] the Court of Session had to consider the nature of the Crown's right to mussel scalps on the seashore of Scotland. In fact, according to the report, "the greater part of the scalps lay between high and low water mark" [46] . It is not altogether clear whether it was necessary to decide what rights the Crown had below low-water mark, but two members of the Court stated that the solum of the sea adjoining the coast, and not merely the foreshore, belonged to the Crown [47] .

1. (1868) 6 S.C. 199. 2. (1868) 6 S.C., at p. 201. 3. (1868) 6 S.C., at pp. 209, 213.

It was at this stage of the development of the law that Reg. v. Keyn [48] was decided. Although that case was not primarily concerned with any question of Crown ownership of the seabed it does discuss that question, and it is convenient to refer to the decision now. The prisoner was a foreigner in command of a foreign ship, which, while passing within three miles of the English shore on a voyage to a foreign port, collided with a British ship causing the death by drowning of a passenger on that ship. He was charged with manslaughter. The question for the Court of Crown Cases Reserved was whether the Central Criminal Court had jurisdiction [49] . A majority of seven of the thirteen judges answered that question in the negative. There has been much debate as to the true ratio of the decision. It was clear that the Central Criminal Court had, for relevant purposes, only the jurisdiction formerly possessed by the Admiral. The majority of the Court held that the Admiral had no jurisdiction to try offences (other than piracy) committed by foreigners on foreign ships at sea. Moreover, the majority considered that the effect of 13 Ric. II, c. 5, was that the Admiral would have had no jurisdiction if the offence was committed "within the realm". The prosecution was thus in a dilemma which Cockburn C.J., who delivered the principal judgment for the majority, thus expressed [50] :

To put this shortly. To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction of the admiral. But the admiral never had criminal jurisdiction over foreign ships on the high seas. How, when exercising the functions of a British judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorized by statute? On the other hand, if this sea is to be considered as territory, so as to make a foreigner within it liable to the law of England, it cannot come under the jurisdiction of the Admiralty. Thus, on the view taken by the majority, the Central Criminal Court lacked jurisdiction whether or not the sea within the three-mile limit formed part of the territory of England. In Harris v. Owners of Franconia [51] Lord Coleridge C.J. said that the ratio decidendi of Reg. v. Keyn [52] "is, that, for the purpose of jurisdiction (except where under special circumstances and in special Acts Parliament has thought fit to extend it), the territory of England and the sovereignty of the Queen stops at low-water mark". However, in Secretary of State for India v. Chelikani Rama Rao [53] Lord Shaw said that "that case had reference on its merits solely to the point as to the limits of admiralty jurisdiction; nothing else fell to be there decided". In my opinion it is apparent that a decision in Reg. v. Keyn [52] could have been reached without deciding whether the territory of England stopped at low-water mark. In any case I find it surprising that it should be thought that a decision as to the jurisdiction of the Central Criminal Court, given by the narrowest of majorities after an extreme conflict of judicial opinion, should be treated as binding by this Court in deciding a question as to the limits of the territory of the Australian States. 1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at p. 64. 3. (1876) 2 Ex. D., at p. 230. 4. (1877) 2 C.P.D. 173, at p. 177. 5. (1876) 2 Ex. D. 63. 6. (1916) L.R. 43 Ind. App. 192, at p. 199; 85 L.J.P.C. 222, at p. 224. 7. (1876) 2 Ex. D. 63.

Of those judges who formed the majority in Reg. v. Keyn only Cockburn C.J. discussed the question of the Crown's ownership of the seabed. He said that there was "beyond question, ancient authority in abundance for the assertion that the bed of the sea is part of the realm of England, part of the territorial possessions of the Crown" [54] . However, he regarded those authorities as based on the doctrine that the Crown had sovereignty over the whole of the narrow seas and said "that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was suggested to be consequent upon it must necessarily go with it" [55] . Taking this view it was still necessary for him to explain what he called "encroachments on the sea" such as harbours, piers, breakwaters and forts, and to deal with the question of the ownership of mines under the bed of the sea below low-water mark. He gave substantially the same explanation in both cases as follows: "Beyond low-water mark the bed of the sea might be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier." [56] . This observation seems quite inconsistent with Benest v. Pipon [57] , to which his Lordship did not refer. Indeed he mentioned only two of the cases decided on this question during the nineteenth century before Reg. v. Keyn, and then briefly and in a different context. He did refer to some of the remarks of Lord Wensleydale in Gammell v. Commissioner of Woods and Forests [58] , but said that they were "wholly unnecessary to the question before the House" [59] . He also cited what was said by Erle C.J. in Free Fishers and Dredgers of Whitstable v. Gann [60] and made the following comment: "The learned Lord Chief Justice overlooked the fact that the time when the grant was supposed to have been made was centuries before the idea of a three-mile belt of sea had been thought of " [61] . However, he did not refer to the judgments in the House of Lords in the Free Fishers Case [62] . In my opinion the decisions which I have cited show that if the rule as to the Crown's ownership of the seabed was originally based on the doctrine that the Crown had sovereignty over the narrow seas, it survived the demise of that doctrine, and the three-mile limit came to be the limit of the Crown's property.

1. (1876) 2 Ex. D., at p. 195. 2. (1876) 2 Ex. D., at p. 196. 3. (1876) 2 Ex. D., at p. 199. 4. (1829) 1 Knapp. 60 [12 E.R. 243]. 5. (1859) 3 Macq. 419. 6. (1876) 2 Ex. D., at p. 227. 7. 11 C.B. (N.S.) 387, at p. 413 [142 E.R. 847, at p. 857]. 8. (1876) 2 Ex. D., at p. 228. 9. (1865) 11 H.L.C. [11 E.R. 1305].

The current of authority as to the ownership of the seabed continued to run on in its former channel undeflected by the decision in Reg. v. Keyn [63] . In three cases from Scotland questions arose respectively as to whether the Crown had the right to prevent the deposit of dredgings in Loch Long, or to make a grant of minerals under the bed of the sea beyond the foreshores of the Firth of Forth, or to the property in mussel scalps on the foreshore and bed of the river Clyde: Lord Advocate v. Trustees of the Clyde Navigation [64] ; Lord Advocate v. Wemyss [65] ; Parker v. Lord Advocate [66] . In each case it was held that the Crown was the owner of the soil under the adjacent waters below the low-water mark, and it was said that the ownership extended to the three-mile limit, although in Lord Advocate v. Wemyss Lord Watson spoke of "the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit" being vested in the Crown [67] . These cases were concerned with the law of Scotland, but they do not depend on principles peculiar to Scottish law, and in Parker v. Lord Advocate the Earl of Halsbury L.C. said that he thought that there was no relevant difference between the law of England and the law of Scotland [68] . It appears that the cases related only to internal waters, although the judgments do not rest on that circumstance. Lord Fitzhardinge v. Purcell [69] also concerned internal waters, this time in England, but in the course of his judgment Parker J. said [70] :

Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the Crown The whole doctrine of "incrementa maris" seems to depend on the beneficial ownership of the Crown in the bed of the sea, which in the older authorities is sometimes referred to as the King's royal waste. 1. (1876) 2 Ex. D. 63. 2. (1891) 19 S.C. 174, esp. at p. 177. 3. [1900] A.C. 48. 4. [1904] A.C. 364. 5. [1900] A.C., at p. 66. 6. [1904] A.C., at p. 368. 7. [1908] 2 Ch. 139. 8. [1908] 2 Ch., at pp. 166-167.

Although by this time it was no longer open to doubt that the Crown has a right of property in the bed of the sea below low-water mark, the question whether the right extended to the three-mile limit was left open by the Judicial Committee in two cases concerning fishing rights: Attorney-General (British Columbia) v. Attorney-General (Canada) [71] and Attorney-General (Canada) v. Attorney-General (Quebec) [72] . Their Lordships considered it inexpedient to pronounce upon the question, which in their opinion involved international relations and international law. Between the times when those two cases were heard the question had, however, arisen in two other matters that came before the Board. In Attorney-General (Southern Nigeria) v. John Holt and Co. (Liverpool) Ltd. [73] , their Lordships had to consider the doctrine of accretion from the sea and in the course of their judgment they spoke of "the Crown as owners of the sea and its bed within territorial limits, and or foreshore" [74] . In Secretary of State for India v. Chelikani Rama Rao [75] , islands had formed in the bed of the sea near the mouth of the river Godaveri, within three miles of the coast of Madras. The Governor of Madras in Council by notification under an Act of Madras constituted lands on the islands a reserved forest, but provision was made by the Act for persons claiming rights in the lands to have their claims considered. The respondents claimed the lands. Their claim failed; the Board held that the island upon their formation became the property of the Crown and that the respondents had failed to establish adverse possession for sixty years. It is made quite clear throughout the judgment delivered by Lord Shaw that the reason why it was held that islands, when they appeared, were the property of the Crown was because the seabed from which they had risen was itself the property of the Crown and within British territory. Professor O'Connell in his article on "The Australian Maritime Domain", Australian Law Journal, vol. 44 (1970), at pp. 195-196, criticizes the decision, and says that its real basis should have been that islands formed within the territorial sea are subject to the sovereignty of the coastal state on the "portico" doctrine in The Anna [76] . However, the ground on which the Board actually rested its decision was that which I have stated. Lord Shaw said: "The Crown is the owner, and the owner in property, of islands arising in the sea within the territorial limits of the Indian Empire." [77] . Lord Shaw considered that the law as he had stated it was "supported by the preponderating considerations of practical convenience" [78] - a comment with which, with respect, I completely agree.

1. [1914] A.C. 153, at pp. 174-175. 2. [1921] 1 A.C. 413, at p. 431. 3. [1915] A.C. 599. 4. [1915] A.C., at p. 611. 5. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 6. (1805) 5 C. Rob. 373 [165 E.R. 809]. 7. (1916) L.R. 43 Ind. App., at p. 201; 85 L.J.P.C., at p. 226. 8. (1916) L.R. 43 Ind. App., at p. 203.

There is another aspect of the decision in Secretary of State for India v. Chelikani Rama Rao [75] that may be mentioned immediately, although it relates to a different question which I shall later discuss. Lord Shaw said that the islands arose "within British territory" [79] and were the property of "the British Crown" [80] . These words were written at a time when India had still not attained responsible government. Further, it was not questioned that the Governor of Madras could effectively constitute the lands upon the islands a reserved forest; there was no suggestion that the power to deal with them could only be exercised in London.

1. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 2. (1916) L.R. 43 Ind. App., at p. 199; 85 L.J.P.C., at p. 224. 3. (1916) L.R. 43 Ind. App., at pp. 199, 203.

The territorial waters of the United Kingdom are defined by the Territorial Waters Jurisdiction Act, 1878, as any part of the open sea within one marine league of the coast measured from low-water mark. The Crown claims property in the soil of the sea under its territorial waters and also claims to be entitled to the mines and minerals under that soil: see Halsbury's Laws of England, 3rd ed., vol. 39 (1962), p. 556. It follows that if through negligence a ship is sunk in British territorial waters as a result of negligence with the result that it impedes access to an important waterway, the Crown would be entitled to remove it as interfering with a right and to recover the cost in damages for negligence. 1. [1969] P. 136, at p. 155.

Notwithstanding the doubts expressed by the Judicial Committee in the two appeals from Canada, there is in my opinion overwhelming authority in favour of the view that according to English law the Crown is the owner of the seabed from the low-water mark to the three-mile limit. The earlier dicta of Cockburn C.J. to the contrary in Reg. v. Keyn [82] were erroneous.

The fact that the Crown owns the seabed supports the conclusion that the territorial sea itself is part of the territory of the Crown. The alternative, that although the seabed is part of the territory of the Crown the sea above it is not, seems incongruous. Other circumstances also support that conclusion. There is no doubt that the Parliament of the United Kingdom has power to enact legislation which operates over the area of the territorial sea. In Reg. v. Keyn, Cockburn C.J. accepted that this was so [83] and another member of the majority, Lush J., went out of his way to emphasize that the competence of the Parliament to legislate in respect of the territorial sea is unfettered [84] . Of course the legislation of the Parliament of the United Kingdom can validly be given an extra-territorial operation and if the intention of the legislation is clear it is immaterial whether or not the law is characterized as extra-territorial. Where the legislation is that of a colony the distinction is material, because of the doctrine of extra-territorial incompetence which came to be evolved in relation to colonial legislatures, but the view taken by those concerned to advise on the validity of colonial legislation was that "there is jurisdiction over territorial waters because these are "intra-territorial" ": see per Stephen J. in Reg. v. Bull [85] , citing Professor O'Connell. The English courts were given jurisdiction to try offences committed by foreigners within territorial waters by the Territorial Waters Jurisdiction Act 1878 Imp. which, as the Earl of Halsbury L.C. said in Carr v. Fracis Times & Co. [86] , reversed the judgment in Reg. v. Keyn [82] . The colonial courts also exercised jurisdiction in respect of offences committed within the territorial sea; the various sources of that jurisdiction are discussed in Wm Holyman & Sons Pty. Ltd. v. Eyles [87] ; Giles v. Tumminello [88] and Reg. v. Bull [89] . The circumstances that the Crown is the owner of the seabed and subsoil beneath the territorial sea, and that there is full legislative competence and curial jurisdiction over the territorial sea are enough to show that the territorial sea is part of the territory of the Crown, notwithstanding that by international law vessels of other nations have the right of innocent passage over it. Various theories have been expressed by learned writers on international law as to the nature of the right of a state over its territorial waters and not all writers concede that the coastal state has sovereignty: see Colombos, International Law of the Sea, 6th ed. (1967), pp. 88 et seq. and O'Connell, International Law, 2nd ed. (1970), pp. 467 et seq. However, by the beginning of the twentieth century the view accepted by leading writers in England was that a coastal state has sovereignty over its territorial waters: see Hall, International Law, 5th ed. (1904), pp. 152-153; Westlake, International Law (1904), vol. 1, pp. 183-184; Oppenheim, International Law (1905), vol. 1, pp. 239-240. It is this view of international law that in my opinion has come to be accepted by English law. There are three decisions of the highest authority that accord with the opinions that I have expressed and are contrary to the statements of the majority in Reg. v. Keyn [90] . In Rolet v. The Queen [91] , where the question for decision was whether goods had been unladen from a ship within the colony of Sierra Leone, the Judicial Committee said that the jurisdiction of that colony appeared to extend three miles seaward [91a] and went on to hold on the facts that when the goods were unshipped the vessel "was not beyond the three miles which form the limit of the jurisdiction of the Colony" [92] . Since as a matter of fact the vessel was beyond the three-mile limit when the goods were unloaded, it was not strictly necessary to decide how far the territoral limits of the colony extended, provided that they did not extend more than three miles, but the decision is at least authority that the low-water mark was not the limit of the colony, for if it had been the whole inquiry in the case would have been unnecessary. In Carr v. Fracis Times & Co. [93] a British officer, who had seized ammunition in the territorial waters of Muscat, was sued in England for tort and claimed that his act was justifiable by the law of the place where it was committed. The seizure was held to be lawful by the law of Muscat and the question then became whether it had occurred within the territories of the Sultan of Muscat. The House of Lords answered this question in the affirmative. Lord Macnaghten said: "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" [94] . In Secretary of State for India v. Chelikani Rama Rao [95] the Privy Council, as I have already shown, accepted that the territorial waters are part of the territory of the Crown.

1. (1876) 2 Ex. D., at pp. 198, 207-208, 231. 2. (1876) 2 Ex. D., at pp. 238-239. 3. (1974) 131 C.L.R. 203, at p. 270. 4. [1902] A.C. 176, at p. 181. 5. (1876) 2 Ex. D. 63. 6. [1947] Tas. S.R. 11. 7. [1963] S.A.S.R. 96. 8. (1974) 131 C.L.R. 203. 9. (1876) 2 Ex. D. 63. 10. (1866) L.R. 1 P.C. 198. 11. (1866) L.R. 1 P.C., at p. 214. 12. (1866) L.R. 1 P.C., at p. 216. 13. [1902] A.C. 176. 14. [1902] A.C., at pp. 182-183. 15. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222.

Much legislative and administrative practice, both in the United Kingdom and in the Australian colonies, during the latter part of the nineteenth century proceeded on the assumption that the territorial sea formed part of the territory of the Crown. I shall give some instances of this when I come to deal with the question whether the territorial sea formed part of the territory of the colonies, but it is convenient at this stage to refer to two important statutes passed by the Imperial Parliament before federation which clearly recognized that the territorial sea adjoining the Australian colonies was part of the territory of the Crown. By s. 15 of the Federal Council of Australasia Act, 1885 the Federal Council was given legislative authority in respect (inter alia) of the following matters -

(c) Fisheries in Australasian waters beyond territorial limits;

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

The expression "territorial limits" in these provisions naturally meant the limits of the territorial waters of the colonies and it was so understood by the Federal Council in enacting The Queensland Pearl Shell and Bêche-de-mer Fisheries (Extra-territorial) Act of 1888 and The Western Australian Pearl Shell and Bêche-de-mer Fisheries (Extra-territorial) Act of 1889: see Bonser v. La Macchia, per Kitto J. [96] . When the Constitution was enacted the words of s. 15(c) of the Federal Council of Australasia Act, 1885 were echoed in s. 51 (x.) by which the Parliament was given power to make laws with respect to "Fisheries in Australian waters beyond territorial limits". It was held by five members of the Court in Bonser v. La Macchia [97] that waters within three miles of the Australian shores are waters within "territorial limits" as those words are used in s. 51 (x.). So construed the Constitution itself establishes that the territory of the Crown includes the territorial sea. 1. (1969) 122 C.L.R. 177, at pp. 203-204. 2. (1969) 122 C.L.R. 177.

However, the Commonwealth submits that before federation the seabed beneath the territorial sea was vested in the Imperial Crown, not in the Crown in right of any of the colonies, and that the territory of a colony did not include any part of its territorial sea. This submission is supported by the observations of Barwick C.J. and Windeyer J. in Bonser v. La Macchia where, however, the question was not argued and did not fall for decision.

In Theodore v. Duncan [98] , Viscount Haldane said: "The Crown is one and indivisible throughout the Empire, and it acts in self-governing States on the initiative and advice of its own Ministers in these States." The question whether land belongs to the Crown in right of a colony, or, as it may be compendiously put, belongs to the colony, depends on whether the right to the beneficial use of the land or its proceeds has been appropriated to the colony and is subject to the control of its legislature, and, when the beneficial use of land or its proceeds has been appropriated to a colony, the right of disposing of the land can only be exercised by the Crown under the advice of the Ministers of that colony: Ontario Mining Co. Ltd. v. Seybold [99] , Saskatchewan Natural Resources Reference [1] . It is therefore necessary to consider whether the legislatures of the Australian colonies immediately before federation had power to control the use of the territorial sea and of its bed and whether the rights of the Crown in relation to the territorial sea and the seabed were exercised on the advice of its Ministers in the colonies.

1. (1919) 26 C.L.R. 276, at p. 282; [1919] A.C. 696, at p. 706. 2. [1903] A.C. 73, at p. 79. 3. [1931] 1 D.L.R. 865, at p. 877; approved [1932] A.C. 28, at p. 40.

When each of the Australian colonies became self-governing the control of the waste lands of the Crown "in" or "within" the colony was vested in the colonial legislature: see New South Wales Government Act (1855) (18 & 19 Vict. c. 54), s. II, and Constitution Act, s. XLIII; Wastelands Act (1855) Imp. (18 & 19 Vict. c. 56), ss. 5, 7; Constitution Act (1855) Vict., s. 54; Constitution Act of 1867 Q., s. 30; Western Australia Constitution Act (1890), s. 3. There is in my opinion much to be said in favour of the view that the lands under the territorial sea were just as much waste lands of the Crown in or within the colony as were lands above high-water mark. The legislature of Tasmania, at least, acted on that view: the Wastelands Act (1858) Tas., s. 32. But if the submarine lands were not technically waste lands of the Crown within the meaning of these statutes, the plenary powers of legislation conferred on the legislature of each colony when it attained self-government were wide enough to empower it to make laws for the control of the lands under the territorial sea and for the regulation of conduct on the territorial sea itself. In fact, before federation, the various colonies made laws for the establishment of harbours and the construction of wharves, jetties and breakwaters, the control of navigation and pilotage, the maintenance of lighthouses and lightships, the regulation of fishing, whaling and prawning, and of diving for pearl shell and bêche-de-mer, the grant of oyster leases and licences to get marine fibres and sponges, and the grant of leases to enable mining to be carried out below low-water mark, and for customs and quarantine purposes. The validity of this legislation was not questioned by the courts or by the Imperial authorities in London. On the contrary, opinions given by the law officers in London, many of them lawyers of great distinction, consistently affirmed that the authority of the colonial legislatures, in Australia and elsewhere, extended for three marine miles from low-water mark: see O'Connell, Opinions on Imperial Constitutional Law (1971), esp. pp. 123-125, 154-155, 159-160, 190-197. It might be possible to regard some of this legislation as extra-territorial but nevertheless sufficiently connected with the colony to be within power, but that cannot truly be said of all of it. For example, it seems to me that if the doctrine of extra-territorial incompetence were logically applied, and unless the waters within the three-mile limit were regarded as part of the colony, a colony would have no more right to prevent foreigners, in a foreign boat, from fishing in the territorial sea except under licence than it would to prevent them from hunting in the neighbouring colony. If the territorial sea is outside the colony, how can one justify legislation regulating the exploitation of the minerals under the seabed or the pearl-shell upon it?

Under the powers conferred by colonial statutes the Crown, on the advice of its colonial Ministers, did in fact dispose of interests in, and control the use of, the lands beneath the territorial sea. Leases were granted to enable mining to be carried out beneath the Pacific Ocean off the coast of New South Wales and licences were granted to fish for pearls and bêche-de-mer in the waters of Queensland and Western Australia. Hundreds of wharves and jetties extending below low-water mark were built - in the ocean, not only in internal waters - particularly along the coasts of Queensland and Western Australia. It would have been absurd if the Crown's right to control the use of the seabed adjoining a colony - for example the right to authorize the building of a pier or to grant an oyster lease - could only have been exercised on the advice of Her Majesty's Ministers 12,000 miles away in London. The practical administrators in Whitehall did not descend to such absurdity. Once self-government had been granted to a colony neither the Imperial Parliament nor the Imperial Government sought to fetter the decisions of local administrators as to the use of the territorial sea or the seabed. It has been suggested that the territorial sea was of Imperial interest because of its importance from the point of view of security and defence. That, however, could not be said of the seabed, at least before federation; although today the security of a nation may be menaced from the bed of the sea, in the less complicated days of the nineteenth century the seabed had little to do with the security and defence of the states adjoining its coasts. No doubt forts might have been built on the seabed, but they could also be built on the land. Moreover, most of the matters that in fact arose in relation to the sea itself - the control of fishing, for example - had nothing to do with security or defence.

Before federation the territorial sea and lands beneath it were in fact subject to the control of the colonial legislatures. Of course the Imperial Parliament had power to pass legislation which, if repugnant to the laws of the colonies, would prevail over them, but that was equally true of legislation that related to the control of the land. Moreover, the right of disposing of interests in the seabed was in fact exercised by the Crown on the advice of the colonial Ministers. In Williams v. Attorney-General (N.S.W.) [2] , Isaacs J. said: "It is a mere truism to say that the title of the King to the lands of the Colony was in right of his Sovereignty of the Colony, in other words in right of the Colony." This observation is in my opinion equally true of the submarine lands beneath the territorial sea.

It was submitted on behalf of the Commonwealth that the boundaries of the Australian colonies did not extend below low-water mark and that accordingly the area of the territorial sea was never within the limits of any of the colonies. It would be unprofitable to examine the instruments which created the various Australian colonies and delimited their extent. Notwithstanding that in some instruments the word "territories" (which it was submitted on behalf of some of the States includes the territorial sea) was used, I am prepared to assume that the express words of the instruments in question did not include the territorial sea. However, the Crown was sovereign of the colony, and the territorial sea adjoining the colony was part of the territory of the Crown; the rights and property of the Crown to the territorial sea and its bed were exercised on the advice of the colonial Ministers, once the colony was self-governing, and were therefore held by the Crown in right of the colony. The effect of the doctrine that I have discussed at such length was that the description of the land territory of the colony necessarily connoted that the territorial sea was a part of the colony, and that the power of the colonial legislature extended over the territorial sea. As Isaacs J. said in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [3] : "But the grant of powers of self-government to a component portion of the Empire connotes, primarily, restriction of their exercise to the limits of the local territory and its adjacent sea limit as recognized universally and by statute." Put in another way, the description of a colony as lands bounded by the sea is to be construed as including the territorial sea, in the same way that a description of parcels as bounded by a non-tidal river is construed prima facie as including so much of the river bed as lies between the bank and the middle of the stream. If what I have said is incorrect, it would be difficult to see on what principle internal waters came to be part of a colony. The waters of Port Jackson are no more within the express description contained in the instruments creating New South Wales than are the waters of the Pacific Ocean within three miles of the New South Wales coastline. However, in my opinion a colony, although described only by reference to its land or its coast, received as part of its territory the sea and seabed within the three-mile limit; on the other hand, a colony, such as Tasmania, which comprised all "Islands and Territories" lying between lines on a map which encompassed large tracts of sea, could not claim that the sea formed part of its territory unless it was within a marine league from the coast or from an island within the bounded areas.

It is immaterial whether it was right to describe the colonies as sovereign states and equally immaterial that they were not internationally recognized as persons. The Crown was the sovereign. The territorial sea vested in the Crown, and the Crown's sovereignty was recognized internationally, if that matters, for, as I have already indicated, we have to apply English law, and are concerned with international law only if it has been accepted as part of English law. The question is in what right did the Crown hold the territorial sea.

For the reasons I have given, I conclude that at the time of federation the bed of the territorial sea adjacent to each of the colonies was vested in the Crown in the right of that colony and that the territorial limits of the colony extended to the three-mile limit.

Nothing that occurred on federation altered the pre-existing situation. That which had been the territory of the colonies became the territory of the States; the rights of the Crown in right of the colonies passed to the Crown in right of the States; the legislative powers of the colonies became exercisable by the State legislatures. For complete accuracy it would be necessary to qualify the generality of these statements by reference to such sections as 52, 85 and 90 of the Constitution, but those sections have no relevance to the present case. Of course the territorial seas of the States became part of the Commonwealth, just as the land territories of the States became part of the Commonwealth, but that does not mean that they ceased to be part of the territories of the States. The fact that the Parliament of the Commonwealth was given power to legislate with respect to external affairs meant only that a law validly made under that power would prevail over inconsistent State laws; the existence of the power did not divest the States of their territories.

On the other hand, if I were wrong, and the territorial sea was a part of the territories of the Crown but not part of any of the colonies, and the seabed was vested in the Crown in its Imperial right, this situation would have remained unaltered on federation. If the territory of the colonies ended at low-water mark, the territory of the new Commonwealth, which was formed by the federation of the colonies, similarly ended there. The very arguments that would deny that the seabed was owned by the Crown in right of the colonies, would, if accepted, mean that immediately after federation it was not owned by the Crown in right of the Commonwealth. At the time of federation the Commonwealth was not an independent nation - not a person recognized by international law. That remained the situation until after the First World War - probably at least until after the Imperial Conference of 1926. At federation, and until the Statute of Westminster, the Commonwealth had no more power to enact legislation having extra-territorial operation than did any State. It is therefore significant that in cases decided soon after federation it was accepted that the territory of the Commonwealth extended to the three-mile limit: Robtelmes v. Brenan [4] ; Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. [5] . That could only have been the case if the territories of the States also extended to the three-mile limit.

1. (1906) 4 C.L.R. 395, at p. 404. 2. (1908) 5 C.L.R. 737, at p. 744.

The view that the territories of the States included the territorial sea has been accepted in a number of decisions in the Australian States: Bruce v. Moore; Ex parte Moore [6] ; Chapman & Co. Ltd. v. Rose [7] ; Commissioner of Taxation v. Cam & Sons Ltd. [8] . Those cases are consistent with Rolet v. The Queen [9] , Carr v. Fracis Times & Co. [10] , and Secretary of State for India v. Chelikani Rama Rao [11] . The same view was taken by the majority of the Court in D. v. Commissioner of Taxes [12] . However, in that case Philp J. [13] took a different view, being influenced, in my opinion wrongly, by what he regarded as the effect of Reg. v. Keyn [14] .

1. [1911] St. R. Qd. 57. 2. [1914] St. R. Qd. 302, at pp. 313, 319-320, 325. 3. (1936) 36 S.R. (N.S.W.) 544, at p. 549. 4. (1866) L.R. 1 P.C. 198. 5. [1902] A.C. 176. 6. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 7. [1941] St. R. Qd. 218. 8. [1941] St. R. Qd., at pp. 228-229. 9. (1876) 2 Ex. D. 63.

In my opinion the "territorial limits" referred to in s. 51 (x.) of the Constitution were the territorial limits of the Commonwealth (which are in part, but not entirely, coterminous with the territorial limits of the States). With the greatest respect, I am unable to agree with the views expressed in Bonser v. La Macchia [15] that the reference is to Imperial territorial limits.

There is a final matter that provides confirmation of the view that the territorial sea is not under the exclusive legislative control of the Commonwealth. It has consistently been held that the effect of s. 51 (i.) and s. 98 of the Constitution is to endow the Parliament, not with a substantive power to deal with navigation and shipping at large, but only with power to deal with that subject in so far as it is relevant to inter-State and foreign trade and commerce: Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General (Cth) [16] ; Morgan v. The Commonwealth [17] ; Australian Coastal Shipping Commission v. O'Reilly [18] . If the territorial sea were part of the Commonwealth territory, and subject to plenary Commonwealth power, there would seem no reason why the Parliament could not deal with any navigation and shipping within the three-mile belt, including purely intra-State navigation and shipping.

1. (1921) 29 C.L.R. 357. 2. (1947) 74 C.L.R. 421, at p. 455. 3. (1962) 107 C.L.R. 46, at p. 54.

It remains to consider some decisions of the Supreme Court of the United States and a decision of the Supreme Court of Canada. Judgments of those Courts are, of course, not binding upon us but we always consider them with the greatest respect.

In the United States competing claims by the United States and the States to the ownership and control of the adjacent seas and seabed have led to protracted litigation. In United States v. California [19] , it was held that the United States was the owner of, and possessed of paramount rights in and powers over, the submerged lands lying within three miles of the coast of California. The argument advanced on behalf of California, which also claimed the lands, raised two separate issues, although in discussion they are not kept altogether distinct. In the first place, California relied on the fact that its territorial boundary, as laid down in the Constitution which it adopted in 1849, and as ratified in the Enabling Act of 1850 by which it was admitted to the Union, included the waters of the sea extending three miles from the shore, and asserted that in consequence it was entitled to the ownership of the lands under that area of the sea. Secondly, by the Enabling Act, California was admitted to the Union on "an equal footing" with the other States, and it was claimed that the original thirteen States had acquired ownership to the three-mile belt of water adjacent to their shores and the lands under it, and that California must therefore be accorded similar rights of ownership to enable it to stand on an equal footing with those thirteen States. The Court rejected the view that the thirteen colonies had acquired ownership to the three-mile belt or the soil under it. The Court said that when the thirteen original colonies won their independence - that is, in 1776, or at latest 1783 - there was no international custom or understanding that a nation owned the three-mile belt of ocean adjacent to its shores, and that the international recognition during the nineteenth century of national rights in the territorial sea resulted in large part from the endeavours of the government of the United States [20] . In other words the Court considered that in fact the United States accomplished the first acquisition of the three-mile belt [21] - an historical argument that has no application to the case of the Commonwealth. There was, however, a second ground for the decision, namely that protection and control of the three-mile belt "is a function of national external sovereignty" [22] . Stated shortly, the view of the Court on this aspect of the case would appear to be that the United States, which has the paramount responsibility for maintaining international relations, preserving peace and engaging in world commerce, must necessarily have the ownership of the three-mile belt, which is of vital importance for those purposes (see particularly the discussion at [23] ). By way of example, it was mentioned that the "very oil about which the State and nation here contend might well become the subject of international dispute and settlement" [24] . Two comments may be permitted on this view. The first is that its correctness is not self-evident. Reed J., in the course of rejecting the view of the majority, said [25] :

This ownership in California would not interfere in any way with the needs or rights of the United States in war or peace. The power of the United States is plenary over these undersea lands precisely as it is over every river, farm, mine, and factory of the nation. And Frankfurter J., who also dissented, pointed out that the oil under the sea is no more vital to the national security, and no more likely to be the subject of international dispute, than uranium under the land [26] . The second comment that may be made is that considerations of national policy cannot override rules of law, and in any case courts are not always the best judges of national policy. In fact Congress apparently took a rather different view from the Supreme Court of what the national policy required, for by the Submerged Lands Act of 1953 U.S. the ownership of the lands beneath navigable waters within the boundaries of the respective States, and the resources within those lands and waters, were vested in the respective States. 1. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 2. (1947) 332 U.S., at pp. 32-34 [91 Law. Ed., at pp. 1895-1897]. 3. (1947) 332 U.S., at p. 34 [91 Law. Ed., at pp. 1896-1897]. 4. (1947) 332 U.S., at p. 34 [91 Law. Ed., at p. 1897]. 5. (1947) 332 U.S., at pp. 35-38 [91 Law. Ed., at pp. 1897-1899]. 6. (1947) 332 U.S., at p. 35 [91 Law. Ed., at p. 1897]. 7. (1947) 332 U.S., at pp. 42-43 [91 Law. Ed., at p. 1901]. 8. (1947) 332 U.S., at pp. 44-45 [91 Law. Ed., at p. 1902].

United States v. California [27] was followed in United States v. Louisiana [28] and United States v. Texas [29] , where it was held that the United States, rather than the States, was possessed of paramount rights in, and full dominion and power over, lands underlying the Gulf of Mexico and extending seawards from low-water mark for twenty-seven miles (in the case of Louisiana) and to the outer edge of the continental shelf (in the case of Texas). In the first of those cases the Court accepted both of the reasons given for the decision in United States v. California [27] - that California, like the original colonies, never acquired ownership in the territorial sea, and that since the territorial sea is of national concern, national rights must be paramount in that area [30] . The first of these reasons was not, however, applicable in the case of Texas. That State was proclaimed a Republic in 1836 and admitted to the Union in 1845. The Court assumed that as a Republic, Texas had not only full sovereignty over the territorial sea but ownership of it and of the land underlying it [31] . However, they applied the "equal footing" doctrine in reverse and held that when Texas entered the Union she relinquished her rights over the territorial sea [32] . Three members of the Court took a different view. Frankfurter J. said [33] : "The Court now decides that when Texas entered the Union she lost what she had and the United States acquired it. How that shift came to pass remains for me a puzzle."

1. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 2. (1950) 339 U.S. 699 [94 Law. Ed. 1216]. 3. (1950) 339 U.S. 707 [94 Law. Ed. 1221]. 4. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 5. (1950) 339 U.S., at p. 704 [94 Law. Ed., at p. 1219]. 6. (1950) 339 U.S., at p. 717 [94 Law Ed., at p. 1227]. 7. (1950) 339 U.S., at p. 717-718 [94 Law. Ed., at p. 1227]. 8. (1950) 339 U.S., at p. 724 [94 Law. Ed., at p. 1230].

Finally, in United States v. Maine [34] , the Supreme Court was invited to overrule the earlier decisions but declined to do so. Apparently because of the States' submission that it was erroneous to deny that prior to independence the thirteen colonies had substantial rights in the territorial sea, the Court appointed a Special Master to take evidence and submit a report. The Master, the Honourable Albert B. Maris, presented a report in which, after learnedly discussing the history of the claims made by littoral nations to adjacent seas, he said (at p. 46):

I find that some time before 1776 the earlier English pretensions to sovereignty over the English seas and with them the claim of the Crown to the seabed of those seas had been abandoned and were beginning to be replaced by the new concept of a marginal band of sea within cannon shot of the shore, a distance which was later to be equated with three miles, in which the Crown could enforce neutrality, control fishing and exercise other sovereign powers. I find no evidence, however, that the idea of sovereignty over the marginal belt of sea, in a territorial sense, was accepted in either English or American law until well into the nineteenth century. Later he said (at p. 47): I conclude that when in 1776 the American colonies achieved independence and when in 1783 the Treaty of Paris was concluded, neither the British Crown nor the colonies individually had any right of ownership of the seabed of the sea adjacent to the American coast, except for those limited areas, if any, which they had actually occupied. The Court did not find it necessary to consider for itself the history relevant to the question whether the colonies had claims to the seabed, for even if they had that would not have disposed of the matter. The Court found it enough to accept and apply the rule, which was repeated time and again in the earlier cases, "that paramount rights to the offshore seabed inhere in the federal Government as an incident of national sovereignty" [35] . 1. (1975) 420 U.S. 515 [43 Law. Ed. 2d 363]. 2. (1975) 420 U.S., at p. 524 [43 Law. Ed. 2d, at p. 370].

Thus in the end the United States decisions depend on considerations of policy, and they are considerations which seem to me to assume a conclusion which is not logically necessary. It does not follow that because the central government in a federation has exclusive responsibility for the conduct of foreign relations, and because the ocean is of vital importance for the maintenance of peace and the conduct of trade, the central government should have exclusive powers over the territorial sea. The same argument, if valid, would apply to the land and the airspace over it. The proposition that before 1783 neither the Crown nor any colony had any right of ownership in the bed of the territorial sea (although apparently Texas had acquired such a right before 1845) may in my opinion be doubted, but if it is correct a change had occurred in English law before the end of the nineteenth century, and that is the time with which we are concerned.

In Canada a dispute between the Dominion and British Columbia as to the ownership of and jurisdiction over the seabed and subsoil seaward from low-water mark to the outer limits of the territorial sea of Canada, and as to the right to exploit the resources of the continental shelf beyond the limits of the territorial sea, was decided in favour of Canada in Reference re Ownership of Off-Shore Mineral Rights [36] . The reasons for the decision may be shortly summarized as follows: Reg. v. Keyn [37] decided that the territory of England ends at low-water mark. The Territorial Waters Jurisdiction Act, 1878 did not enlarge the realm of England. Early Canadian legislation is inconsistent with the theory that the Provinces possessed as part of their territory the solum of the territorial sea. Dicta contrary to the majority judgment in Reg. v. Keyn should be disregarded. In 1871 when British Columbia joined the Dominion it did not have ownership of, or property in, the territorial sea. The rights in the territorial sea formerly asserted by the British Crown in respect of the colony of British Columbia were after 1871 asserted by the British Crown in respect of the Dominion of Canada. Some time after the signing of the Treaty of Versailles in 1919 Canada became a sovereign state with full capacity to acquire new areas of territory and new jurisdictional rights which might be available under international law. The effect of the Territorial Sea and Fishing Zones Act of 1964 Can., and of the Geneva Convention of 1958, is that Canada is recognized in international law as having sovereignty over a territorial sea three nautical miles wide; it is part of the territory of Canada.

1. [1967] S.C.R. 792; (1967) 65 D.L.R. (2d) 353. 2. (1876) 2 Ex. D. 63.

The Court held that Canada has exclusive legislative jurisdiction in respect of the bed of the territorial sea either under s. 91 (1A) of the British North America Act Imp. or under the residual power in s. 91; British Columbia has no legislative jurisdiction; the lands under the territorial sea are outside its boundaries, and not within the Province, and therefore do not fall within any of the enumerated heads of s. 92 of the British North America Act.

The Court further held that international law with regard to the continental shelf is a recent development and that the rights now recognized by international law to explore and exploit the natural resources of the continental shelf do not involve any extension of the territorial sea. They held that the continental shelf is outside the boundaries of British Columbia and that Canada is the sovereign state which should be recognized by international law as having the rights stated in the Convention.

The decision that the lands under the territorial sea did not belong to British Columbia rests, in my opinion, on the authority of the views of the majority in Reg. v. Keyn [38] . It will appear from what I have said that I respectfully consider that the Supreme Court gave too much weight to those views and too little attention to the other decisions that I have discussed. It is unnecessary for me to consider whether the Court was right in concluding that if the territorial sea did not belong to the Province it now belongs to Canada. What was said as to the legislative power of the Province is clearly inapplicable to the position of the Australian States whose legislative powers are not limited in the manner indicated in s. 92 of the British North America Act. I am not persuaded, either by the Canadian or the United States authorities, to depart from the views I have already expressed. With the conclusion reached in relation to the continental shelf I am, however, as will be seen, in general agreement.

For the reasons which I have elaborated at length I hold that when the Act was passed the territorial sea adjacent to each State formed part of the territory of that State and the Crown in right of the State owned the bed and subsoil beneath the territorial sea. It follows from what I said earlier as to the powers of the Commonwealth that s. 6 of the Act is invalid.

If the conclusions that I have reached in relation to the territorial sea are correct it follows, a fortiori, that s. 10 of the Act, which vests in the Crown in right of the Commonwealth the sovereignty in respect of the internal waters and the airspace over them and the seabed and subsoil beneath them, is bad. If, however, my views as to the territorial sea are rejected, a question remains with respect to the internal waters. At the very least the territory of the States extends to low-water mark, but the Act treats as internal waters "any waters of the sea on the landward side of the baseline of the territorial sea" (s. 10). If the Governor-General, acting under s. 7, determined that straight baselines should be drawn between appropriate points, the waters of the sea over the foreshore between low-water mark and high-water mark, as well as waters within indentations of the coast, would lie to the landward of the baselines. Section 14 would preserve the sovereignty of the States in respect of areas "within any bay, gulf, estuary, river, creek, inlet, port or harbour" but would not preserve State rights in respect of the shore between low- and high-water mark. The assertion of Commonwealth sovereignty to this comparatively small, but not altogether unimportant, area must on any view be invalid.

The rules of international law now established by the Convention on the Continental Shelf are of recent origin. In the judgment of the International Court in the North Sea Continental Shelf Cases [39] , it was said that the "Truman Proclamation", issued by the Government of the United States on 28th September 1945, "soon came to be regarded as the starting point of the positive law on the subject, and the chief doctrine it enunciated, namely that of the coastal State as having an original, natural, and exclusive (in short a vested) right to the continental shelf off its shores, came to prevail over all others, being now reflected in Article 2 of the 1958 Geneva Convention on the Continental Shelf" [40] . Claims similar to those made in the Truman Proclamation were made by the Commonwealth Government in a proclamation dated 10th September 1953 (Commonwealth Gazette, 11th September 1953, p. 2563). It is true that before federation the colonies of Queensland and Western Australia had exercised a certain control over pearl and bêche-de-mer fishing outside teritorial waters, pursuant to the two Acts of the Federal Council of Australasia to which I have already referred. However, none of the colonies before 1900 had made any claim to sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources.

1. [1969] I.C.J. Rep. 3. 2. [1969] I.C.J. Rep., at par. 47.

The argument submitted on behalf of the States starts with the proposition, accepted by the International Court in the North Sea Continental Shelf Cases 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" [41] . Therefore it is said that the rights of the States to the continental shelf, although never asserted by any colony before federation, must now be taken always to have existed and that the States' ownership of the seabed no longer stops at the three-mile limit but extends to the outer limits of the continental shelf.

To say that the rights of coastal states in respect of the continental shelf existed from the beginning of time may or may not be correct as a matter of legal theory. In fact, however, the rights now recognized represent the response of international law to modern developments of science and technology, which permit the seabed to be exploited in a way which it was quite impossible for governments or lawyers of earlier centuries to foresee. In this matter the arguments of history are stronger than those of logic. In truth, when the Act was passed, the States had not asserted and did not have the rights to the continental shelf which the Convention now accords to coastal states. Those rights, if theoretically inherent in the sovereignty of coastal states, were in fact the result of the operation of a new legal principle. When those rights were recognized by international law the Commonwealth was the international person entitled to assert them, and it did so. The assertion by the Commonwealth of those rights in no way interfered with any existing right of any State.

For these reasons, in my opinion div. 2 of Pt II of the Act is valid.

I would declare that div. 1 of Pt II of the Act is invalid but that div. 2 of Pt II is valid.

By the Seas and Submerged Lands Act 1973 there is declared and enacted to be vested in and exercisable by the Crown in right of the Commonwealth the sovereignty in respect of the territorial sea of Australia and of any waters of the sea on the landward side of the baseline of that sea, its bed and subsoil and the airspace over it; likewise as to the sovereign rights of Australia in respect of its continental shelf for the purpose of exploring it and exploiting its natural resources.

Each of the six States of Australia challenges the constitutional validity of this Act, denying to the Commonwealth Parliament the particular legislative power which by this enactment it has purported to exercise.

The Commonwealth supports its validity by reliance upon a variety of sources of legislative power, the external affairs power - s. 51 (xxix.); its power to legislate for the government of any territory - s. 122; its power to legislate with respect to matters incidental to the execution of its executive power - s. 51 (xxxix.) and s. 61; and the power inherent in it as an international person to declare its sovereignty and sovereign rights and enact them for the purposes of municipal law, aided, if necessary, by reference to s. 51 (xxxix.).

A consideration of each of these sources of legislative power requires first an understanding of what was the status of the so-called territorial sea, that is, broadly speaking, the open seas lying within three miles of Australian coasts, and which I shall call league seas, immediately before the passing of this Act. Only then can the application to them of each of these suggested sources of legislative power be determined. I will, for the moment, defer consideration of the power to legislate concerning either Australia's continental shelf or the waters to landward of the baseline of league seas; in due course it will be necessary to turn to each of these.

Because on first settlement Australia was but a part of the British Crown's overseas possessions it is important, at the outset, to determine what interests or rights the Crown then possessed in league seas, whether those of the United Kingdom or of its overseas possessions.

I regard the status of the league seas off the coast of British possessions as having been authoritatively determined by the decision of their Lordships in the Judicial Committee. There are three decisions, reported in three successive years, in which they have been referred to. In the first in point of time, Attorney-General (British Columbia) v. Attorney-General (Canada) [42] , Sir Robert Finlay, who led for the appellant, sought to canvass the question of the title of the Crown to the solum of league seas but was stopped, their Lordships stating that they did not propose to deal with that question. When Viscount Haldane came to speak for their Lordships he said that it was unnecessary for the resolution of the appeal to express "any opinion on the question whether the Crown has a right of property in the bed of the sea below low water mark to what is known as the three-mile limit". His Lordship distinguished between the three mile limit, a concept comparatively modern in origin, and "the narrow seas" limit discussed by the older authorities, such as Selden and Hale, a principle which may safely be said to be now obsolete. He said that it was undesirable, pending international review of the matter at a conference of the nations concerned, that any municipal tribunal should pronounce upon questions concerning the three mile limit and that the conflict of opinion which arose in Reg. v. Keyn [43] would in the meanwhile have to remain unresolved, as would the question whether league seas formed part of the territory of the Crown or were merely subject to special powers necessary for protective and police purposes [44] .

1. [1914] A.C. 153. 2. (1876) 2 Ex. D. 63. 3. [1914] A.C., at p. 174.

However, only a year later their Lordships did in fact advert to the question. In Attorney-General (Southern Nigeria) v. John Holt & Co. (Liverpool) Ltd. [45] the Crown sought declarations as to its entitlement to certain accretions to the foreshore and when the matter came before the Judicial Committee the doctrine of accretion at common law was much debated. In the course of their Lordships' judgment, delivered by Lord Shaw, the consequence of erosion of the foreshore was referred to and it was said that "if erosion had continued, their Lordships do not doubt that it would have been no defence against the claim of the Crown that the foreshore upon the line of inroad had de facto been transferred to the Crown as owners of the sea and its bed within territorial limits, and of foreshore, even although the line of the eroded foreshore had made considerable invasion into the measured plots of lands, as these were described in the titles" [46] . Although but a passing reference, it is clear that their Lordships regarded the sea and its bed within territorial limits as owned by the Crown.

1. [1915] A.C. 599. 2. [1915] A.C., at p. 611.

Then, in the following year, the third appeal, Secretary of State for India v. Chelikani Rama Rao [47] , came before their Lordships. It concerned the title to islands which rose from the sea at the estuary of a river in India and again Lord Shaw delivered their Lordships' judgment. He stated that the matter was not complicated by doubts as to the furthest possible extent of territorial waters since the islands were clearly "within three miles of British territory". The question, he said, was whether they were no man's land and "The answer is, they are not; they belong in property to the British Crown" [48] .

1. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 2. (1916) L.R. 43 Ind. App., at p. 199; 85 L.J.P.C., at p. 224.

His Lordship then proceeded to explain the basis for this conclusion. He referred to "certain dicta" pronounced in Keyn's Case [49] which might be thought to raise doubts as to the Crown's ownership, dicta as to the Crown's dominion in the bed of the sea being bounded by low-water mark and extending no further seaward. Keyn's Case was disposed of quite shortly, his Lordship saying [50] :

It should not be forgotten that that case has reference on its merits solely to the point as to the limits of Admiralty jurisdiction; nothing else fell to be decided there. It was marked by an extreme conflict of judicial opinion, and the judgment of the majority of the Court was rested on the ground of there having been no jurisdiction in former times in the Admiral to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore.

When, however, the actual question as to the dominion of the bed of the sea within a limited distance from our shores has been actually in issue, the doubt just mentioned has not been supported, nor has the suggestion appeared to be helpful or sound.

In preference to the dicta in Keyn's Case [49] , their Lordships turned to three decisions which they regarded as being directly in point. The first was that of Parker J. in Fitzhardinge v. Purcell [51] , from which a lengthy passage was cited, which, after referring to the public rights of fishing secured by Magna Charta, concluded that, subject to those rights "there seems no good reason to suppose that the Crown's ownership of the bed of the sea and the beds of tidal navigable rivers is not a beneficial ownership capable of being granted to a subject in the same way that the Crown's ownership of the foreshore is a beneficial ownership capable of being so granted" [52] . 1. (1876) 2 Ex. D. 63. 2. (1916) L.R. 43 Ind. App., at p. 199; 85 L.J.P.C., at p. 224. 3. (1876) 2 Ex. D. 63. 4. [1908] 2 Ch. 139. 5. [1908] 2 Ch., at p. 167.

Lord Shaw then turned to two Scottish cases, saying that "In Scotland the law is firmly settled, and in a similar sense". In Lord Advocate v. Clyde Trustees [53] the Crown had sought a declaration that the trustees were not entitled to deposit "in any part of the narrow seas of Scotland" material dredged from the river Clyde and Lord Kyllachy had said, in a passage cited by Lord Shaw [54] , that the Crown's right in league seas, "now acknowledged to be part of the territory of the kingdom" was not merely a protectorate for certain purposes, such as navigation and fishing but was proprietary, there being "no distinction in legal character between the Crown's right in the foreshore, in tidal and navigable rivers, and in the bed of the sea within three miles of the shore. In each case it is of course a right largely qualified by public uses. In each case it is therefore, to a large extent, extra commercium; but none the less is it, in my opinion, a proprietary right - a right which may be the subject of trespass, and which may be vindicated like other rights of property" [55] .

1. (1891) 29 Sc. L.R. 153. 2. (1916) L.R. 43 Ind. App., at p. 201; 85 L.J.P.C., at p. 225. 3. (1891) 29 S.C.L.R., at p. 156.

The second Scottish case was that of Lord Advocate v. Wemyss [56] , which concerned the ownership of minerals under the bed of the sea below low-water mark. Their Lordships' judgment cited [57] what had there been said by Lord Watson; he had said [58] :

I see no reason to doubt that, by the law of Scotland, the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the threemile limit, and also the minerals beneath it, are vested in the Crown. Lord Shaw continued, in his own words [59] : In the opinion of the Board this is also the law of India. The Crown is the owner and the owner in property, of islands arising in the sea within the territorial limits of the Indian Empire.

It should be added, with reference to the suggestion that the territory of the Crown ceases at low-water mark, and that the right over what extends seawards beyond that is merely of the nature of jurisdiction, or the like, that there are manifest difficulties in seeing what are the grounds for this in principle. There is nothing to recommend a local jurisdiction over a space of water lying above a res nullius.

1. [1900] A.C. 48. 2. (1916) L.R. 43 Ind. App., at p. 201; 85 L.J.P.C., at pp. 225-226. 3. [1900] A.C., at p. 66. 4. (1916) L.R. 43 Ind. App., at pp. 201-202; 85 L.J.P.C., at p. 226.

Their Lordships had, of course, had cited to them [60] the then recent decision in Attorney-General (British Columbia) v. Attorney-General (Canada) [61] in which a differently composed Judicial Committee had found it unnecessary to pass upon the question of ownership of the solum in league waters; indeed Sir Robert Finlay appeared as counsel in both cases.

1. (1916) L.R. 43 Ind. App., at p. 196; 85 L.J.P.C., at p. 223. 2. [1914] A.C. 153.

What their Lordships determined in Chelikani's Case [62] to be the law of India and what they regarded as well settled in Scottish law and as long established in English law, unaffected by dicta in Keyn's Case [63] , is, then, that the British Crown is the owner of the solum underlying the league seas. This proposition is thus established on the highest of authority. That in Chelikani's Case it was the British Crown that was referred to reflects the fact that neither the Province of Madras, with which the case was concerned, nor India as a whole, had attained self government at the time of that decision.

1. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 2. (1876) 2 Ex. D. 63.

From this flow consequences of immediate relevance to the present dispute; were it not for the lengthy debate which we have heard concerning the dicta in Keyn's Case [63] and affecting many other decisions of the courts and the writings of many learned authors I would pass immediately to a consideration of those consequences. However, in deference to the arguments of counsel, I propose, as shortly as may be, to express my views concerning the gradual development of law and constitutional theory which led to the situation described in Chelikani's Case [62] . The course of this development reflects the interaction of a variety of influences; England's early predominance in naval affairs and her consequent assertion of sovereignty over ill-defined areas of water, sometimes described as the sea, or the four seas, of England and, more conservatively but no less ambiguously, as the narrow seas, and later, after the Act of Union, as the British seas; the need which was felt to reconcile these heady claims to sovereignty over entire seas with the legitimate commercial interests of other nations and with the like interests of British merchant shipping in the coastal waters of other countries; an appreciation that the common interest might be best served by some mutual moderation of claims; the growth of an international law doctrine combining the concept of the freedom of the seas with that of special rights of littoral states within their territorial seas although subject always to a general right of innocent passage; the development of prize law and of rules as to neutral ships and neutral waters. There were also influences of a purely domestic kind; the feudal concept that all title to land stems ultimately from a grant by the Crown; that the Crown's ownership of the foreshore, while proprietary, is nevertheless subject to public right of navigation and of fishing. Yet others, of a constitutional nature, played their part; the want of extraterritorial legislative competence on the part of colonial legislatures; the extent of Crown prerogative and the effect upon it of the grant of responsible colonial government.

1. (1876) 2 Ex. D. 63. 2. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222.

It is not surprising that the interaction of these various influences should have produced a result which, satisfactory enough from a pragmatic point of view, may not consistently reflect clear-cut principles. This is most apparent in the transition from England's wide claims of sovereignty over the English seas to the modern, and much diminished, assertion of sovereignty over and property in British league seas.

The early history of England's claims to sovereignty of the seas in Plantagenet times and before, extensively drawn upon by Selden in his Mare Clausum (1635), need not be examined; it is also enough to do no more than note in passing the transition from that climate of opinion in Tudor, and particularly Elizabethan, times, which favoured freedom of navigation and of fisheries, to the quite different Stuart period, characterized by protracted disputation with the Dutch over British sovereignty of the seas, beginning as early as 1609 with King James' exclusion from British seas of unlicensed foreign fishermen. The seventeenth century saw the publication of Wellwood's Abridgment of All Sea-laws (1613), Callis's work on Sewers (1622), Selden's Mare Clausum, Hale's first Treatise (written about 1636) and his later De Jure Maris. All of these works and several more espoused far reaching concepts of British sovereignty over the seas, and advocates of this view were not confined to those adhering to the doctrine of the divine right of Kings; Cromwell was no less insistent upon Dutch submission to the authority of the "Commonwealth of England, to whom the Dominion and Sovereignty of the British Sea belong", cited in Oudendijk's Status and Extent of Adjacent Waters (1970), p. 104. Like concepts were long reflected in works of the next century - Bacon's and Viner's Abridgements , Blackstone's Commentaries - and persisted into the early years of the nineteenth century - Chitty's Prerogatives of the Crown (1820) - although by then the ownership that is spoken of is specifically confined to "the narrow seas adjoining the English coasts" (op. cit., p. 206) and as there used "narrow seas" may mean no more than league seas.

In the realm of case law the high claims of Stuart days, almost metaphysical in character and epitomized in the Ship Money Case, R. v. Hampden [64] are in marked contrast to the more prosaic judgments of nineteenth century judges. Yet throughout all is to be found a consistent view that waters within league seas are British territory, that the fundum of those waters is the property of the Crown and that the league seas themselves are a part of the royal waste.

It is in the first half of the nineteenth century that for the first time a substantial body of case law on the topic developed. It is enough to refer to some only of these cases. First Blundell v. Catterall [65] , the sea bathing case, in which appears that "most remarkable" judgment of Sir George Holroyd, described by the Court of Appeal in Brinckman v. Matley [66] as "one of the first examples we have of the way in which the judgment of an English judge ought to be expressed" [67] ; and see [68] . Holroyd J. described the King as alone having the property "in the main sea itself adjacent to his dominions", his subjects not having "that property in the sea through the whole tract of it that the King hath " [69] . His Lordship relied extensively upon Hale's De Jure Maris and not at all upon doctrines of international law; he expressed what he regarded to be the common law. He said that by the common law both the shore between the flux and reflux of the tide and the sea itself belong to the King, although subject always to the public rights of fishing and of navigation for the purposes of commerce, trade and intercourse [70] . It was upon this judgment of Holroyd J. that Lord Parker founded himself in Fitzhardinge v. Purcell [71] in that passage which the Judicial Committee later were to adopt in Chelikani's Case [72] .

1. (1821) 5 B. & Ald. 268 [106 E.R. 1190]. 2. [1904] 2 Ch. 313. 3. [1904] 2 Ch., at p. 323. 4. [1904] 2 Ch., at pp. 326, 327. 5. (1821) 5 B. & Ald., at p. 293 [106 E.R., at p. 1199]. 6. (1821) 5 B. & Ald., at p. 298 [106 E.R., at p. 1201]. 7. [1908] 2 Ch., at p. 301. 8. (1916) L.R. 43 Ind. App., at p. 200; 85 L.J.P.C., at p. 225.

Seven years later, in 1828, came Gifford v. Lord Yarborough [73] , a case of land formed by alluvion of the sea, and in which Best C.J., answering on behalf of the judges the questions of the House of Lords, spoke of the fundum maris as the property of the King [74] ; again reliance was placed squarely upon the common law. Lord Lyndhurst and Lord Eldon affirmed the views of Best C.J.

1. (1828) 5 Bing. 163 [130 E.R. 1023]. 2. (1828) 5 Bing., at p. 165 [130 E.R., at p. 1024].

In the following year, in Benest v. Pipon [75] , a Jersey appeal, Best C.J., then Lord Wynford, speaking on behalf of the Privy Council, said of the sea that "it is the property of the King and so is the land beneath it"; he relied upon Blundell v. Catterall [76] and Lord Yarborough's Case [76a] and described this to be both the law of England and that of Jersey. It was, he said, the introduction, at the time of the Conquest, of the laws of Normandy into England which resulted in "the laws of England and Jersey being precisely the same with regard to land that is below the ordinary tides, dealing with such land as a part of the bottom of the sea, and vesting the original right to it in the King" [77] .

1. (1829) 1 Knapp 60, at p. 67 [12 E.R. 243, at p. 246]. 2. (1821) 5 B. & Ald. 268 [106 E.R. 1190]. 3. (1828) 5 Bing. 163 [130 E.R. 1023]. 4. (1829) 1 Knapp, at p. 69 [12 E.R., at p. 247].

In the 1850s there occur two cases of note; the first is Attorney-General v. Chambers [78] , in which the Lord Chancellor was, by special arrangement, assisted by Alderson B. and Maule J.; it concerned the precise landward extent of the seashore. After argument by a distinguished Bar, which included Bethell, James, Palmer and Mellish, the two common law judges, in a joint judgment, stated the question to be decided as follows [79] :

The Crown is clearly in such a case, according to all the authorities, entitled to the "littus maris" as well as to the soil of the sea itself adjoining the coasts of England. What then, is the extent of this littus maris? This case came on again before the Lord Chancellor for further consideration in 1859 [80] . On this occasion Lord Chelmsford cited with approval a passage from Blackstone which concluded with the words "if the alluvion or dereliction be sudden and considerable, in this case it belongs to the King, for as the King is lord of the sea, and as owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry" [81] . Neither in these judgments nor in the argument which preceded them was it suggested that this doctrine as to the ownership of the soil of the seabed was other than a doctrine of the common law. 1. (1854) 4 De G.M. & G. 206 [43 E.R. 486]. 2. (1854) 4 De G.M. & G., at p. 213 [43 E.R., at p. 489]. 3. (1859) 4 De G. & J. 55 [45 E.R. 22]. 4. (1859) 4 De G. & J., at p. 68 [45 E.R., at p. 27].

The much cited Scottish case of Gammell v. Commissioners of Woods and Forests [82] involved the question of the Crown's rights to salmon fishings in the open sea. In the joint opinion of the nine judges whose opinions were sought on appeal from first instance these salmon fishings were beneficial rights and fit subject of proprietorship; with this opinion a majority of the Second Division of the Court of Session concurred. An appeal was then taken to the House of Lords, on which sat Lord Chelmsford L.C., Lord Cranworth, Lord Wensleydale and Lord Kingsdown. The Lord Chancellor held salmon fishings in the open sea to be the property of the Crown. Lord Cranworth agreed and added that any doubts he might have entertained, due to the great difficulty of defining to what extent the claim might go with respect to sea fishings, had been overcome because "if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the Crown, in England at least, to the bed of the sea, because that is undefined; yet nobody doubts that such a right exists" [83] .

1. (1859) 3 Macq. 419. 2. (1859) 3 Macq., at p. 465.

Lord Wensleydale also agreed but he introduced a concept of international law. He said, speaking of the Lord Chancellor's opinion [84] :

I think it unnecessary to add anything to it, except that, perhaps, besides the limits he has stated of the fishing being connected with the coast, it may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of nations belongs to the coast of the country, that which is under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession. Lord Kingsdown likewise agreed. 1. (1859) 3 Macq., at pp. 465-466.

The 1860s produced a number of cases of which only two call for mention. In Gann v. Free Fishers of Whitstable [85] , the House of Lords had to determine whether the grant by the Crown of a several fishery must necessarily be subject to public rights of navigation and anchorage. In the course of his judgment Lord Wensleydale, while emphasizing that these public rights must prevail, spoke of that which the Crown might grant, and which in that case it was necessarily taken to have granted before Magna Carta (any grant since that date being unlawful), as "the right to the soil of the fundus maris within three miles below low water mark and to the fishery in it" [86] . Lord Chelmsford, while doubting the Crown's right to impose upon subjects a toll for the use of the soil of the sea as an anchorage "to this large extent", that is, as far off-shore as the three mile limit, because of his recognition of the existence of public rights of navigation, nevertheless acknowledged that that soil was the property of the Crown. His Lordship in this context, and referring to the three mile limit, said [87] :

Whatever power this may impart with respect to foreigners, it may well be questioned whether the Crown's ownership in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation. 1. (1865) 11 H.L.C. 192 [11 E.R. 1305]. 2. (1865) 11 H.L.C., at p. 213 [11 E.R., at p. 1314]. 3. (1865) 11 H.L.C., at p. 218 [11 E.R., at p. 1316].

In Ipswich Dock Commissioners v. Overseers of St. Peter, Ipswich [88] , Blackburn J., with whom Mellor and Lush JJ. concurred, examined in some detail the law relating to parish boundaries at the shores of the sea and concluded that the appellant's dock was extra-parochial and was therefore not subject to parish rates. In doing so he explained why the "main sea" is extraparochial; he said [89] :

In Reg. v. Musson it was rightly decided that what Lord Hale calls the main sea is prima facie extra-parochial, and in the absence of evidence that it forms part of a parish it must be taken that it does not; and the same reason, that it is part of the waste and demesnes and dominions of the Crown, would apply to an estuary or arm of the sea: it is a part of the great waste, both land and water, of which the king is lord. In so saying he paraphrased the words of Lord Hale which had been cited by Watson B. in Attorney-General v. Hanmer [90] . 1. (1866) 7 B. & S. 310. 2. (1866) 7 B. & S., at p. 344. 3. (1858) 27 L.J. Eq. 837.

In all these references to league seas the doctrine as to those seas which is enunciated is clearly not founded upon any concept of international law; however one such concept is introduced in two of the last three cases which I have examined; both Lord Wensleydale and Lord Chelmsford introduced the concept of the three mile limit and this for the purpose of providing some outer boundary for the relevant seas.

With the 1870s Keyn's Case [91] is reached. Keyn, the German captain of a German vessel which, within three miles of the English coast, had collided with a British vessel causing loss of life, was charged with manslaughter and convicted. He sought to challenge the jurisdiction of the Central Criminal Court to hear the charge against him. It was decided in 1876 and, as I have endeavoured to show, at a time when it had been long established that the Crown had property in the seas and seabed, at least within league seas. Of the two leading judgments delivered by members of the majority, that of Sir Robert Phillimore is much concerned with matters of international law, as was, of course, not inappropriate to what was in issue in the case; his Lordship made no close examination of the cases on English or Scottish municipal law to which I have referred. The same may he said of that portion of the judgment of Cockburn C.J. particularly devoted to an examination of the authorities [92] ; his Lordship, to the extent to which he touched upon such cases, was primarily concerned with matters of jurisdiction and the emergence of the doctrine of the three-mile limit of territorial waters, as is shown by his reference [93] to the Whitstable Fishers Case [94] , his reference to it being restricted to the case when before Erle C.J. and to the Chief Justice's reference to the three-mile limit. The judgment of Brett J.A., one of the minority, did advert to a number of these precedent cases although again the emphasis was rather different from that which I have adopted. The reason for this different emphasis throughout the judgment in Keyn's Case [91] is that given in Chelikani's Case in the passage already cited [95] , namely that what was in issue in Keyn's Case was not the question that has so long detained me in this judgment, but rather the extent of the former criminal jurisdiction of the Admiral.

1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at pp. 221-229. 3. (1876) 2 Ex. D., at p. 228. 4. 11 C.B. (N.S.) 387. 5. (1876) 2 Ex. D. 63. 6. (1916) L.R. 43 Ind. App., at p. 199; 85 L.J.P.C., at p. 224.

The subsequent history of Keyn's Case [91] has been curious. Despite the clear pronouncement of the Judicial Committee of the Privy Council already referred to, Reg. v. Keyn has nevertheless been much cited, both in judgments and by writers of texts, for the proposition that the territory of England ends at the low-water mark; yet it appears to me to be clear that Keyn's Case decided only the extent of jurisdiction of the Central Criminal Court, which had inherited the Lord High Admiral's jurisdiction. That jurisdiction had been restricted by 13 Ric. II c. 5, the words of which, translated from their original medieval French, having long been understood to read:

The admirals and their deputies shall not meddle from henceforth with anything done within the realm of England, but only with things done upon the sea. 1. (1876) 2 Ex. D. 63.

Now it was common ground in Keyn's Case that the criminal jurisdiction of the Common Law Courts did not extend to the open sea. Brett J.A., in delivering the leading judgment for the minority, said as much [96] :

It is admitted that the Common Law Courts never were appointed according to the common law, and therefore never had jurisdiction by virtue of the common law to try crimes committed on the high or open seas, even though the crimes were committed by the Queen's subjects, because the commissions of the judges applied in terms only to counties, and the juries were summoned only to try cases within counties, and the high or open sea is within no county. The jurisdiction of the common law courts was limited by the territorial limits of counties, to the limits of which the judges' commissions were restricted (Holdsworth, History of English Law, vol. I, pp. 264-285) and it was for this reason that "between high and low-water mark the Courts of Oyer and Terminer had jurisdiction when the tide was out, the Court of the admiral when the tide was in" (per Sir Robert Phillimore in Keyn's Case [97] ). In Admiralty [98] , Lord Coke had described the sea as that "from whence no pais may come", that is to say no panel from which a jury might be selected. Hence it was exclusively to the Admiral's jurisdiction, as transferred to the Central Criminal Court, that the Court in Keyn's Case [99] looked, with varying results, for the answer to the question before it, whether the Central Criminal Court had jurisdiction to try Keyn for manslaughter. However it is important to note that the fact that counties are bounded in extent by, and do not extend beyond, the shore bears not at all upon the question of ownership of the seabed. 1. (1876) 2 Ex. D., at p. 145. 2. (1876) 2 Ex. D., at p. 67. 3. (1610) 12 Co. Rep. 79, at p. 79 [77 E.R. 1357]. 4. (1876) 2 Ex. D. 63.

The majority in Keyn's Case held that the Admiral's criminal jurisdiction had never extended to foreign vessels on the open sea; accordingly there existed no jurisdiction to try Keyn. In so deciding, the majority rejected the contention of the Crown that, as a result of the development of international law, the league seas in modern times were to be regarded as British territory for the purpose of exercising jurisdiction over aliens. The fact that, by international law, Parliament might properly so legislate as to extend the jurisdiction of the Admiral was, they held, no justification for the Court to usurp legislative power and itself make that extension in the absence of such legislation. All this appears clearly from what was said by Cockburn C.J. [1] :

It is obviously one thing to say that the legislature of a nation may, from the common assent of other nations, have acquired the full right to legislate over a part of that which was before high sea, and as such common to all the world; another and a very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to foreigners within such part, or that, independently of legislation, the courts of the local state can proprio vigore so apply it. The one position does not follow from the other; and it is essential to keep the two things, the power of Parliament to legislate, and the authority of our courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct, which, it is evident, is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specifically liable to our law by statutory enactment that that law can be applied to them. and again [2] : If by the assent of other nations the three-mile belt of sea has been brought under the dominion of this country, so that consistently with the right of other nations it may be treated as a portion of British territory, which, of course, is assumed as the foundation of the jurisdiction which the courts of law are here called upon to exercise, it follows that Parliament can legislate in respect of it. Parliament has only to do so, and the judges of the land will, of course, as in duty bound, give full effect to the law which Parliament shall so create. The question is, whether legislative action shall be applied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the difficulty. The reason Lush J. gave for writing his separate judgment does but stress that the basis of the majority decision was that given by Cockburn C.J. in the above passages. 1. (1876) 2 Ex. D., at pp. 207-208. 2. (1876) 2 Ex. D., at p. 231.

It is because of this that I have described the subsequent history of Keyn's Case [3] as curious. Its explanation may lie in the various shades of meaning which can be attributed to the word "territory". To regard Reg. v. Keyn as deciding that the territory of England ends at low-water mark is to understand the word "territory" as used in the judgment of Cockburn C.J. in the widest sense, as that area over which Britain exercised dominium and imperium. Cockburn C.J. did not, I believe, use the word "territory" in this sense but rather as interchangeable with "realm", both describing merely all that which is within the body of any county. This the following passage from his Lordship's judgment demonstrates [4] :

To come to the subject of the realm, I cannot help thinking that some confusion arises from the term "realm" being used in more than one sense. Sometimes it is used, as in the statute of Richard II, to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England extended or was supposed to extend, over.

When it is used as synonymous with territory, I take the true meaning of the term "realm of England" to be the territory to and over which the common law of England extends - in other words, all that is within the body of any county - to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of Richard II between the realm and the sea. For centuries our judicial system in the administration of the criminal law has been divided into two distinct and independent branches, the one having jurisdiction over the land and any sea considered to be within the land; the other over the sea external to the land. No concurrent assent of nations, that a portion of what before was treated as the high sea, and as such common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of Parliament, convert that which before was in the eye of the law high seas into British territory, and so change the law, or give to the courts of this country, independently of legislation, a jurisdiction over the foreigner where they had it not before. The argument in support of the contrary appears to me, I must say, singularly inconsistent with itself. According to it the littoral sea is made to assume what I cannot help calling an amphibious character. At one time it is land, at another it is water. Is it desired to apply the law of the shore to it, so as to make the foreigner subject to that law? - it becomes so much territory. Do you wish to keep it within the jurisdiction of the admiral - as you must do to uphold this indictment? - it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of Great Britain is fatal to the argument which it is intended to support. For, if the sea thus becomes part of the territory, as though it were actually inter fauces terrae, it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the Admiralty jurisdiction. The littoral sea cannot be land for one purpose and high sea for another. Nor is anything gained by substituting the term "territory" for land. The law of England knows but of one territory - that which is within the body of a county. All beyond it is the high sea, which is out of the province of English law as applicable to the shore, and to which that law cannot be extended except by legislation.

With respect to those who may think otherwise, it appears to me to be clear from this passage that the Chief Justice uses "territory" exclusively in the sense which I have suggested and that his Lordship is at all times concerned solely with the question of jurisdiction. 1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at pp. 197-198.

With reference to the concept of "realm" it should be mentioned that the Solicitor-General of South Australia, in an argument which he supported by contemporary references and by expert evidence, contended that the words "but only" in the statute of Richard II either constituted an erroneous translation into English of the medieval French of the statute or, alternatively, bore, at the time of their original translation into English in the mid-sixteenth century the meaning, in the English of that day, of "with the exception of" or "save only", rather than carrying the exclusory meaning which "but only" commonly signifies in modern usage. Whether or not this submission be accepted it bears, I think, not at all upon the fact of Crown ownership of the seabed as established by the authorities which I have cited although it does, of course, go to the correctness of the conclusions of Cockburn C.J. as to the Admiral's jurisdiction, since his Lordship relied for those conclusions in no small measure upon this phrase "but only" which he found in the English translation of the statute of Richard II.

With the case of Harris v. Owners of Franconia [5] , as subsequently understood, began what I regard as the later misinterpretation of Keyn's Case [6] . This case has been relied upon as one in which the three judges who constituted the Court, and who happened also to have been members of the minority in Keyn's Case, were all of the opinion that Keyn's Case did decide that the territory of England and the sovereignty of the Queen stopped at low-water mark. But that does not accurately represent what was said in Harris' Case. What Lord Coleridge is reported, in the Common Pleas Division report but not in the fuller report of argument in the Law Journal report, to have said in the course of argument may have contributed to the misunderstanding; however when his Lordship came to give judgment he left no room for misunderstanding. He said, speaking of Keyn's Case [7] :

The ratio decidendi of that judgment is, that, for the purpose of jurisdiction (except where under special circumstances and in special Acts parliament has thought fit to extend it), the territory of England and the sovereignty of the Queen stops at low-water mark. The matter in respect of which this action is brought, therefore, happened beyond the jurisdiction of the Queen's Courts; (emphasis added). Denman J. made it still clearer that Reg. v. Keyn only decided a point of jurisdiction when he said [8] : The case of Reg. v. Keyn clearly goes the length of holding that, for all purposes, apart from any express statutory provision, the moment you get beyond low-water mark you get beyond the jurisdiction within which the Queen's writs run. Each member of the Court in Harris' Case speaks of territory in a jurisdictional sense, thereby equating "territory" with "realm" and the body of any county, these being the geographical limits of jurisdiction of the common law courts. The judgments do not at all deal with territory in the sense of Crown ownership or of dominion. Likewise in Blackpool Pier Co. v. Fylde Union [9] , heard by Lord Coleridge and Grove J. a few days after Harris' Case and involving a point of statutory construction, it was as to the extent of the "realm" in a parish rate appeal that Keyn's Case was cited. 1. (1877) 2 C.P.D. 173; 46 L.J.C.L. 363. 2. (1876) 2 Ex. D. 63. 3. (1877) 2 C.P.D., at p. 177. 4. (1877) 2 C.P.D., at p. 178. 5. (1877) 46 L.J. (Mag.) 189; 36 L.T. 251.

One further point should be made in relation to Keyn's Case [10] itself. Cockburn C.J. warned of the need to distinguish between the "long since abandoned" claim to sovereignty of the British seas and the more recently developed and quite different concept of a band of territorial waters of three marine miles in width, a concept derived from international law [11] . The propriety of such a warning, in the context of the issue which was before the Court in Keyn's Case, is of course undoubted. Moreover it was, with respect, entirely accurate for his Lordship to speak of the "vain and extravagant pretensions" of Stuart sovereignty over the seas as long since having been abandoned; however, their abandonment left the question of Crown ownership of the seabed off British coasts quite unaffected; that ownership was not dependent upon those pretensions, which were concerned rather with the intrusion of foreign war ships, with international fishing rights and with the striking of the flag within the so-called British seas. As to the more recently developed doctrine of the three-mile limit, it has no doubt, over the years, played a part in the more precise definition of that which is owned by the Crown off-shore; the gradual acceptance by most maritime powers during the eighteenth and nineteenth centuries of the concept of a territorial sea, limited to three miles, and of freedom of the high seas beyond those limits had a particular effect upon Crown ownership of the seabed; it provided a conventional outer limit for that ownership. Because the whereabouts of that outer limit had been little canvassed in the courts, only ownership much closer to the shore than three miles ever arising as a practical concern, it was the easier to adopt that limit, by then well established in international law, as the furthest extent seawards of Crown ownership of the seabed.

1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at p. 175.

I would regard it as mistaken to conclude, from the abandonment long ago of Stuart pretensions to sovereignty of the seas at large and from the adoption of the three-mile limit as the seaward bounds of Crown ownership, that such a wealth of judicial support for the existence of that ownership as is manifest in the case law of the nineteenth century is, as has sometimes been suggested, but the product of a confusion of concepts.

There is one further authority, later in date than Keyn's Case [12] , which forms a part of the general body of case law already examined. In Attorney-General v. Reeve [13] the Crown sought to establish title to land recently added, by accretion, to the shore. The Court consisted once again of Lord Coleridge, sitting with Pollock B., and judgment was given for the Crown, the Court applying what was described as the "long established" rule of law as to accretion and drawing for authority upon Bracton and Hale and upon the latter's references to the sea off the shore as a "parcel of waste or demesne, so of necessity the land that lies under it, and therefore it belongs to the King when left by the sea" [14] . Lord Coleridge cited and applied Lord Yarborough's Case [15] andAttorney-General v. Chambers [16] . I have omitted reference to cases much discussed before us but which were concerned primarily with concepts of international law and, in particular, with the rights of neutrality and the rights of foreign sovereigns; I instance " Twee Gebroeders " [17] , The Anna [18] and Carr v. Fracis Times & Co. [19] . I have also omitted to refer to those cases concerned essentially with statutory interpretation, as were The Brig Ann [20] , General Iron Screw Collier Co. v. Schurmanns [21] , Dr. Lushington's decision in The Leda [22] and The Johannes [23] , and the case of Rolet v. The Queen [24] . All these cases were relied upon by the States in support of the view that league seas lie within the territory of the littoral state. The view which I have formed concerning Crown title to league seas makes it unnecessary for me further to extend my examination of precedent cases.

1. (1876) 2 Ex. D. 63. 2. (1885) 1 T.L.R. 675. 3. (1885) 1 T.L.R., at p. 677. 4. (1824) 3 B. & C. 91 [107 E.R. 668]. 5. (1859) 4 De G. & J. 55 [45 E.R. 22]. 6. (1800) 3 C.Rob. 162 [165 E.R. 422]. 7. (1805) 5 C. Rob. 373 [165 E.R. 809]. 8. [1902] A.C. 176. 9. (1812) 1 Gall. 62. 10. (1860) 1 J. & H. 180 [70 E.R. 712]. 11. (1856) Swab. 40 [166 E.R. 1007]. 12. (1860) Lush. 182 [167 E.R. 87]. 13. (1866) L.R. 1 P.C. 198.

I should mention here two statutes. First the Territorial Waters Jurisdiction Act 1878, enacted following the decision in Keyn's Case [25] and which the Earl of Halsbury L.C., in Carr v. Fracis Times & Co. [26] , described as "reversing" the majority in Keyn's Case by "affirming in the strongest terms that the decision which had been arrived at by the majority was one that was not the law of England"; and see the similar views of Lord Coleridge in Reg. v Dudley and Stephens [27] . The Act is, like Keyn's Case, concerned only with matters of curial jurisdicton and is to that extent not directly relevant to the present point. To the extent that modern cases have specifically relied upon it for a conclusion contrary to my own I shall have occasion to refer to it again.

1. (1876) 2 Ex. D. 63. 2. [1902] A.C., at p. 181. 3. (1884) 14 Q.B.D. 273, at p. 281.

The Cornwall Submarine Mines Act U.K. was enacted in 1858, before Keyn's Case, to give effect to arbitration proceedings between the Crown and the Duchy of Cornwall concerning the title to mines beneath the sea off the Cornish coast. It enacted that mines and minerals both within the county of Cornwall and under "the open sea adjacent to but not being Part of the County of Cornwall" were vested in the Queen "in right of Her Crown as Part of the Soil and territorial Possessions of the Crown": see ss. 1 and 2. In Keyn's Case differing views were taken of this legislation - per Lord Coleridge [28] and per Cockburn C.J. [29] . In my view this legislation is significant not only because of the terms in which ss. 1 and 2 are cast but also because the contentions advanced on behalf of the Duchy did not, it seems, seek to deny the original ownership by the Crown of the off-shore sites of these mines; instead what was asserted was title derived by ancient grant from the Crown. There was thus common acceptance of Crown title to the seabed in league seas.

1. (1876) 2 Ex. D., at pp. 156-158. 2. (1876) 2 Ex. D., at pp. 199-202.

It seems appropriate at this stage to refer to two instances in which the English law officers, asked to advise the Colonial Office, some years after Keyn's Case, concerning questions which involved ownership of league seas in the colonies, took a view consistent with those authorities which I have earlier discussed. In 1895 Sir Richard Webster A.-G. and Sir Robert Finlay S.-G., advising upon the rights of the Crown by its prerogative to make grants, in Bermuda, of the seabed for the purpose of the erection of wharves below high-water mark and within three miles seaward of that mark, stated that "the rights of the Crown in the foreshores and lands below high-water mark in the Bermudas are the same as under the common law in England". The Crown could, they said, accordingly by its prerogative, make grants of the soil below high water mark and within three miles of that mark under the sea adjoining Bermuda, the only qualification being that no works could be authorized which might prejudice the public right of navigation.

Later, in 1899, the same two law officers advised, in relation to the Straits Settlements, that "the common law of England as to foreshore and open seas within the territorial limits applies". Accordingly alienations which had been made of the subsoil of territorial waters might only be impeached if there were any substantial interference with the rights of the public in those waters.

In conclusion on this particular subject matter it remains only to refer to the views of the Supreme Courts of Canada and of the United States concerning ownership of league seas. In Reference re Ownership of Off-Shore Mineral Rights [30] the Supreme Court of Canada considered the ownership of and jurisdiction over submerged lands containing mineral rights and situated off the coast of British Columbia and within three miles of that coast. It concluded that those lands were the property of Canada, which alone had legislative jurisdiction over them. Questions of the continental shelf were also dealt with, which I leave to one side.

The Court was much influenced by its view of Keyn's Case [31] but did, in my respectful opinion, misconceive the issues in that case. It is said of Keyn's Case [32] .

The English Criminal Courts would have had jurisdiction if the act had occurred within the body of a county of England. The question whether the territorial sea was within the body of a county was, therefore, directly in issue. If it had been within the body of the county, the Court of Oyer and Terminer would have had jurisdiction. The majority decision of the Court was that the territory of England ends at low-water mark. There was, therefore, no jurisdiction in the Court of Oyer and Terminer. In fact, as I have already sought to establish by my earlier quotation of the passage in the judgment of Brett J.A., there was no issue in Keyn's Case as to whether "the body of the county" might extend beyond low-water mark. Again, for the reasons which I have already given, I would not regard "the majority decision of the Court" in Keyn's Case as being, as the passage from the judgment of the Supreme Court which I have quoted suggests, that the "territory" of England, employing that term in its ordinary meaning, ended at low-water mark. The majority in Keyn's Case were of course much concerned with the concept of the "realm" because of their understanding of the statute of Richard II and its bearing upon the Admiral's jurisdiction; it was in that special sense, equivalent to the realm, bounded by the counties, that the majority spoke of "territory". I do not understand it to have been any part of the ratio of their decision that the "territory" of England, in the very different sense in which the Supreme Court uses that term, ended at low-water mark. 1. (1876) 2 Ex. D. 63. 2. [1967] S.C.R., at p. 804; (1967) 65 D.L.R. (2d), at p. 363.

The Supreme Court appears to have placed considerable reliance upon Harris v. Owners of Franconia [33] and upon Blackpool Pier Co. v. Fylde Union [34] for the light they cast upon the ratio of Keyn's Case. I have already expressed my views concerning these two cases. The Supreme Court also took the view that the Territorial Waters Jurisdiction Act 1878, because it applied the criminal law of England to the open seas within the territorial waters of Her Majesty's dominions, necessarily proceeded upon a footing inconsistent with any concept that British Columbia possessed the solum within territorial waters. This inconsistency is not, with respect, apparent to me; the terms of the Act appear to me to cast no light upon the question of the ownership of league seas; it is but an instance of the effective exercise of Imperial legislative power.

1. (1877) 2 C.P.D. 173; 46 L.J.C.L. 363. 2. (1877) 46 L.J. (Mag.) 189; 36 L.T. 251.

The Supreme Court, in arriving at the conclusion it did, dealt with the decision of the Privy Council in Chelikani [35] and with those precedent cases upon which Lord Shaw's reasoning in Chelikani in turn relied. As I would understand the judgment [36] , it did so not by distinguishing them but rather, as the headnote states [37] , by disapproving of them while at the same time referring to what is said concerning title to emergent islands in Oppenheim's International Law, 8th ed. (1955), par. 234. That passage, however, is expressed in terms of an exposition of the doctrines of the law of nations rather than the municipal law of England. Lord Shaw's authoritative exposition in Chelikani of that for which Keyn's Case is authority is not referred to by the Supreme Court and no reference occurs to the decision of the Privy Council in the Southern Nigeria Case [38] although it had been referred to in certain of the judgments in Attorney-General (Canada) v. Western Higbie [39] , an earlier decision of the Supreme Court concerned with Crown title to foreshore lands.

1. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 2. [1967] S.C.R., at p. 814; (1967) 65 D.L.R. (2d), at p. 373. 3. (1967) 65 D.L.R. (2d), at p. 355. 4. [1915] A.C. 599. 5. [1945] S.C.R. 385; [1945] 3 D.L.R. 1.

Decisions of the Supreme Court of Canada are, of course, of high persuasive authority. However, the existence of decisions of the Judicial Committee, binding upon this Court, which are opposed to that of the Supreme Court would in any event preclude me, in this instance, from adopting the views of that Court as expressed in its Reference of 1967.

In the United States litigation between federal and state governments concerning league seas has proliferated of recent years. The outcome of those cases has been to deny to the States control over the resources of off-shore submerged lands and the decisions do in that sense afford support for the contentions urged by the Commonwealth in the present case. There are, however, so many considerations, historical, constitutional and, perhaps, of a policy nature, which distinguish those United States decisions from what is to be decided in the present case that I think it profitless to undertake in these reasons an examination of the judgments. I do, however, draw attention to the full review, both historical and constitutional, of the British and early colonial position as to offshore waters contained in earlier decisions of the Supreme Court, notably in Shively v. Bowlby [40] . These decisions, which are, of course, referred to in judgments in the recent series of cases, did not involve any contest between the rival claims of state and federal authorities and accordingly did not attract those special considerations to which the Court has given effect in its recent decisions. With the exception of these Canadian and United States cases the body of law as to the status of British league seas remained, in my view, unaltered until Bonser v. La Macchia [41] . Certain of the judgments in that case took a view of Keyn's Case at variance with that which I have expressed and to these I must, perforce, later return.

1. (1893) 152 U.S. 1, esp. at pp. 11-20, 31, 35-36, 43, 48 [38 Law. Ed. 331, at pp. 336-339, 343, 344-345, 347, 349]. 2. (1969) 122 C.L.R. 177.

Having stated my reasons for concluding that the British Crown owned, as royal waste, the waters and bed of league seas surrounding the Australian continent when the Australian colonies came to be given responsible government I pass now to the effect upon this position of the grant to these colonies of responsible government. In my view it resulted in league seas thenceforth being owned by the Crown in right of the respective littoral colonies, so that at federation there existed six Australian colonies in respect of each of which the Crown in right of that colony owned its league seas.

In considering the effect of the grant of responsible government upon the ownership by the Crown of the league seas and their subsoil much guidance is to be had from the judgment of Isaacs J. in Williams v. Attorney-General (N.S.W.) [42] and of Long Innes C.J. in Eq. in Attorney-General (N.S.W.) v. Butterworth & Co. (Aust.) Ltd. [43] .

1. (1913) 16 C.L.R. 404. 2. (1938) 38 S.R. (N.S.W.) 195.

That originally the waste lands in the colonies were owned by the British Crown is not in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature, such as is described by Dr. Evatt in his unpublished work on the subject (the relevant passages from which are set out in the Butterworth Case [44] ; the prerogatives of the Crown were a part of the common law which the settlers brought with them on settlement (R. v. Kidman, per Griffith C.J. [45] ); "the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty's colonial possessions as in Great Britain" (per Lord Watson speaking for their Lordships inLiquidators of Maritime Bank of Canada v. Receiver-General (New Brunswick) [46] ; cited by Isaacs J. in The Commonwealth v. New South Wales [47] ). On the other hand that ownership may be described as a consequence of the feudal principle which, on first settlement in Australia, was "extended to the lands oversea", so that all colonial land belonged "to the Crown until the Crown chose to grant it" (per Isaacs J. in Williams' Case [48] ). In either event the consequence is the same, the lands of Australia became the property of the King of England (Attorney-General v. Brown [49] ).

1. (1938) 38 S.R. (N.S.W.), at pp. 246-247. 2. (1915) 20 C.L.R. 425, at pp. 435-436. 3. [1892] A.C. 437, at p. 441. 4. (1923) 33 C.L.R. 1, at p. 37. 5. (1913) 16 C.L.R., at p. 439. 6. (1847) Legge 312, at pp. 317-320.

So long as anything less than responsible government applied in the Australian colonies this position remained unaltered; Crown lands were vested in the Imperial Crown, they were the Sovereign's colonial lands. When responsible government was granted to the first four Australian colonies in 1855 this involved no change in the ownership of these Crown lands but rather a change in their control, the Sovereign thenceforth held them in right of the colony and control of them passed to the colonial government (Isaacs J. in Williams' Case [50] ). The Sovereign, in matters internal to the colony, ceased to be advised by Ministers responsible to the British legislature; instead it was the colonial Ministers, responsible to the colonial legislature, which advised upon those matters. The control and disposition of Crown lands was for the first time placed in the hands of the responsible colonial legislatures; all this is dealt with, in its full historical detail in relation to New South Wales, by Isaacs J., in the Williams Case. The position was no different in other colonies. With the grant of legislative authority over Crown lands to the local legislatures went also executive control - "as rights of self government were conferred on each Colony exclusive rights of executive authority over matters within the ambit of the rights conferred became of necessity vested in the executive power of the Colony" (O'Connor J. in South Australia v. Victoria [51] ).

1. (1913) 16 C.L.R., at p. 455. 2. (1911) 12 C.L.R. 667, at p. 710.

Those proprietary prerogatives of the Crown which related to matters other than the waste lands comprised in the land masses of Britain's colonial possessions also became exercisable, upon self government, by the Crown in right of the self-governing colony. Long Innes C.J. in Eq. was concerned, in the Butterworth Case, with the proprietary prerogative right of the Crown in the printing of Statutes and said that proprietary prerogative rights had come to be "vested in the Crown in right of the Colony of New South Wales immediately prior to the confederation of the Commonwealth of Australia" [52] . These prerogatives are the very "substance of the common law", per Denning L.J. in Nyali Ltd. v. Attorney-General [53] , in which it was held that the Government of Kenya might grant the proprietary Crown prerogative of pontage to the plaintiff; and see per Morris L.J. [54] and per Parker L.J. [55] . Isaacs J. in The Commonwealth v. New South Wales [56] , explained the significance of Woolley v. Attorney-General (Vict.) [57] ; the inability of a colonial Governor, before the establishment of self government, to grant away the proprietary prerogative rights of the Crown to precious metals, regarded as distinct from the land in which they lay, has no application to that colony's government after self government is attained.

1. (1938) 38 S.R. (N.S.W.), at p. 245. 2. [1956] 1 Q.B. 1, at p. 16. 3. [1956] 1 Q.B., at pp. 24-25. 4. [1956] 1 Q.B., at p. 32. 5. (1923) 33 C.L.R., at p. 39. 6. (1877) 2 App. Cas. 163.

The effect of self government upon the prerogative in the case of the prerogative to legislate is instanced in the case of Malta. There the grant of responsible government, flowing from the grant to a local legislature of the power to legislate, with the Governor's assent, concerning most of the internal affairs of that island, had the effect of suspending, pro tanto, the exercise of the Imperial royal prerogative to legislate (Sammut v. Strickland [58] ). So too in the case of the Australian colonies; to the extent of the powers conferred upon the new responsible governments, the corresponding royal prerogatives residing in the Imperial Crown were suspended, never in fact to be revived. They were replaced by corresponding royal prerogatives of the Crown in right of the colony in question, exercisable by the Governor upon the advice of his colonial Ministers. The creation of the several Australian colonies did not abrogate that which the settlers had brought with them, namely "all the common law relating to the rights and prerogatives of the Sovereign in his capacity as head of the Realm " Instead it "continued in force as law of the respective Colonies applicable to the Sovereign as their head" (Kidman's Case, per Griffith C.J. [59] ). So it is that prerogatives in the nature of proprietary rights which arose "by virtue of the King being the supreme executive authority of a particular territorial unit possessed of self government are also held by the Crown in right of that particular territorial unit or political entity" (the Butterworth Case, per Long Innes C.J. in Eq. [60] ).

1. [1938] A.C. 678. 2. (1915) 20 C.L.R., at pp. 435, 436. 3. (1938) 38 S.R. (N.S.W.), at p. 244.

It was of this situation that Dr. Evatt spoke when he said, at pp. 390-391 of his unpublished work to which I have already referred:

the Crown in right of the several States is entitled and alone entitled to exercise the prerogatives of the King in respect of his ownership of lands, his right to royal metals, to treasure trove, to escheats, to the ownership of the foreshore and the bed of the sea within territorial limits, and to royal fish - that is, whale and sturgeon.

I have not been concerned to determine the geographic limits of the several Australian colonies as described in the various documents by which governmental authority was conferred, first by the Crown upon Governors and later by legislation upon colonial governments possessing a greater or lesser degree of self government. Whether or not some of these documents may, upon their proper interpretation, include the league seas of the littoral colonies is immaterial to the view I have formed. Just as the Crown's ownership of and dominion over English league seas enured to it by virtue of sovereignty over the English land mass so too in the colonies; sovereignty over the colonial land mass carried with it ownership of and dominion over its league seas regardless of the existence of any statute or proclamation describing the colony in terms wide enough to include those seas.

The contrary view, that self-governing colonies, possessing very extensive shore-lines and having absolute power of management and control over Crown lands within their land masses, were nevertheless deprived of ownership and control of league seas, those waters being outside their territory and remaining under the control of the Imperial Parliament and executive, is to my mind unacceptable. It is, moreover, a view which is shown, by the extensive evidence which is before the Court in this case, to have been at no time within the contemplation either of the Imperial authorities or of the colonial legislatures or executives. The numerous opinions of the Law Officers of the Imperial Crown throughout the nineteenth century touching league seas are in my view inconsistent with the title and control of those waters being retained by the Imperial Crown and executive, especially having regard to the then prevailing view that colonial legislatures had no extra-territorial competence.

In 1853 the Advocate-General, Sir Alexander Cockburn A.-G. (later Cockburn C.J.) and Sir Richard Bethell S.-G. (later Lord Westbury) jointly advised that a colonial statute of Nova Scotia, a colony then possessing responsible government, which legislated for league seas, was valid, saying that "The authority of the local legislature extends (like that of the Imperial Parliament) over the space of the three miles upon the high seas next the coast which is, by the comity of nations, part of the country to which it is adjacent." This, they said, was itself, without more, sufficient to confer power on the colonial legislature to legislate for fisheries in those waters. Two years later these same law officers dealt with the converse position, holding that the colonial legislature of British Guiana, which then possessed a unique constitutional system with features of a representative character, could not legally exercise its jurisdiction "beyond its territorial limits (three miles from the shore)". In 1860, in advice to the Admiralty, five law officers, the Advocate-General, Sir Richard Bethell A.-G., Sir William Atherton S.-G., Sir Robert Phillimore (later Phillimore J.) and Sir Robert Collier (later a member of the Judicial Committee) advised that a Victorian Act for the equipping of colonial warships would, if assented to, confer upon those vessels the legal character of British warships but only "within the limits of the territorial jurisdiction of the Colony, i.e., within three miles of the shores". Five years later, reverting to the same topic, Sir Henry James (later Lord James of Hereford), Sir Farrer Herschell S.-G. (later Lord Herschell) and Sir Alexander Hill, upon being asked whether colonies possessing responsible government might, without Imperial legislation, provide armed vessels for service "within colonial waters" replied that they might.

The colonial administrations in the Australian colonies, once they attained self government, regarded themselves as fully competent not only to legislate for but also to deal with their league seas and they were so treated by the Colonial Office; there exists a very extensive body of colonial legislation concerned with those seas and frequent colonial grants of rights of various kinds in respect of the bed of those seas. Again the significance of these is heightened when viewed in the context of the then prevailing belief that colonial legislatures lacked extra-territorial capacity. It is unnecessary for me to refer to examples of such legislation or of these grants, to which the Court was taken in considerable detail in the course of the hearing; some examples are referred to in a number of the articles which have, of recent years, appeared in Australian legal journals on this general topic.

Perhaps the most cogent evidence concerning the then prevailing understanding regarding the status of colonial league seas before federation is provided by the terms of the Federal Council of Australasia Act 1885 and by the legislation which was, pursuant to that Act, enacted for the waters off the shores of Queensland and Western Australia. In view of the discussion of this legislation in Bonser v. La Macchia [61] , particularly by the Chief Justice [62] , by Kitto J. [63] and by Windeyer J. [64] , I do no more than note that the Chief Justice, while regarding as a misconception the concept that each colony had a territorial sea of its own, acknowledged the existence of "a widely held view" to that effect [62] . It was that view, shared by the Imperial authorities and which, with respect, I must regard as no misconception, which accounted for the form taken by this legislation.

1. (1969) 122 C.L.R. 177. 2. (1969) 122 C.L.R., at pp. 191-192. 3. (1969) 122 C.L.R., at pp. 203-204. 4. (1969) 122 C.L.R., at pp. 228-229. 5. (1969) 122 C.L.R., at pp. 191-192.

No doubt the true legal status of colonial league seas immediately before federation cannot depend either upon the views of law officers of the Crown or upon the assumptions made and acted upon by the Imperial authorities and by colonial legislatures of the time. However, substantial confirmation of the views which I have earlier expressed, and which are themselves, as I believe, founded upon principles of established law, is to be derived from these sources.

If, then, at federation the Crown in right of each colony owned the league seas off its coastline, so that in all relevant respects those league seas were part of the territory of the colony, what, then, was the effect of federation? In my view it brought about no change in the title to those league seas and the sea-bed below them; it did, however, substantially alter the identity of the repositories of legislative competence over league seas and ultimately led to a radical change in the repository of sovereignty, in an international sense, over those seas. Hitherto legislative competence had been shared between the Imperial Parliament and the colonial legislature but on federation the Commonwealth acquired, at the expense of the former colonies, extensive legislative competence, delineated by reference to subject matter. As to sovereignty, when the Commonwealth attained its own independent international status the Imperial Crown ceased to be the sovereign, in international terms, in respect of those waters. These changes which took place, the first at the time of and the other subsequent to federation, were, however, in no way different in their impact upon the former colonial league seas than they were upon the land masses of the former colonies. I regard these waters and the land masses as identical for these purposes.

The Commonwealth contends that even if it be held that league seas were the property of the colonies at the time of federation nevertheless the effect of federation and, in particular, of provisions of the Constitution, was to deprive them of league seas, which instead passed to the Commonwealth. As I understand that submission it depends upon what may be described as the potentialities for nationhood of the body politic, Australia, which are made manifest in the Constitution, and which require that there should pass from the federating colonies to the Commonwealth all the characteristic attributes of a nation state necessary for the ultimate assumption by the Commonwealth of its foreshadowed future as such a nation state. The possession of territorial waters being, it is said, such an attribute, there passed to the Commonwealth, on federation, all rights over the territorial waters around Australia's shores.

That the Commonwealth was, by the Constitution, endowed with a capacity fitting it to take its place as a nation state cannot be doubted. But in my view this initially inchoate capacity to act and be recognized as an international person cannot be called in aid for the purpose of affecting, within the internal constitutional structure of the federation, the property rights and associated legislative jurisdictions of its entities as they existed before federation. Any attempt to do so necessarily involves a misconception concerning the nature of sovereignty for the purposes of international law and presupposes that an internationally sovereign state must also be one possessing sovereignty, in the widest sense of that term, in matters municipal. Were that the case none of the great federal states of the world would be possessed of international sovereignty.

The fallacy which underlies this submission is most clearly revealed by the character of the particular provisions of the Constitution upon which the submission principally relies, namely s. 51 (xxix.), the external affairs power, and s. 75(1), conferring original jurisdiction upon this Court in all matters arising under any treaty. No doubt these provisions contemplate that the Commonwealth may enter upon the international stage as the bearer of rights and duties under international law but to do so it needs no greater rights and competence within the federal structure than are already granted to it by the express terms of the Constitution, it requires no complete municipal sovereignty. As was said by the Supreme Court of the United States in United States v. Curtiss-Wright Export Corporation [65] :

As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. The position is, I think, accurately summarized in Bernier, International Legal Aspects of Federalism (1973) where it is said, at p. 81: To sum up, the position of international law on the subject of international personality in federal states is as follows. In so far as such states are recognized as sovereign members of the international community, they enjoy full international personality. The fact that their internal competence is limited to some extent does not affect in any way their international status. 1. (1936) 299 U.S. 304, at p. 318 [81 Law. Ed. 255, at p. 262].

It may well be that sovereignty over its territorial waters is an attribute of an internationally recognized nation state. If so the Commonwealth possesses that attribute, it has sovereignty in the relevant international law sense, just as, in that same sense, it has sovereignty over the land mass of the Australian continent. In neither case does its lack of full legislative competence or its lack of radical title affect its status as a nation state.

Divided legislative competence is a feature of federal government that has, from the inception of modern federal states, been a well recognized difficulty affecting the conduct of their external affairs; hence Professor Wheare has said, in a chapter devoted to the subject in his Federal Government, 4th ed. (1963), that "federalism and a spirited foreign policy go ill together" (p. 186). International organizations have recognized and sought to overcome the problem in a variety of ways. The International Labour Organization, the implementation of whose conventions have given rise to particular difficulty and much litigation in Canada, provides an example of such endeavours - see C. W. Jenks, Human Rights and International Labour Standards (1960), p. 20 et seq. As a partial remedy recourse has in some instances been had to the use of special federal nation clauses so as to limit the obligations of such nations with respect to those subject matters which fall within the legislative competence of a member state of their federations; Art. 19(7) of the amended Constitution of the International Labour Organization and Art. XXIV(12) of the GATT agreement provide instances of international bodies of which Australia is a member which have developed special mechanisms in recognition of the problem presented by federal states - see generally Alexandrowicz, World Economic Agencies (1962).

Whatever limitations the federal character of the Constitution imposes upon the Commonwealth's ability to give full effect in all respects to international obligations which it might undertake, this is no novel international phenomenon. It is no more than a well recognized outcome of the federal system of distribution of powers and in no way detracts from the full recognition of the Commonwealth as an international person in international law.

I regard as no more valid the broader submission that federation had the effect of vesting in the Commonwealth the former colonies' league seas or of creating new league seas of the Commonwealth.

Viscount Haldane, speaking for their Lordships in Attorney-General (Cth) v. Colonial Sugar Refining Co. Ltd. [66] , spoke of the Australian Constitution, in contrast to the British North America Act of 1867, as establishing a system which was federal in the strict sense of that term; the Australian colonies "while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions", a position which his Lordship contrasted with the Canadian position in which the Act of 1867 created "a general Government charged with matters of common interest, and new and merely local Governments for the Provinces". His Lordship emphasized the continuity of the Australian colonies when he referred to "the federating Colonies" whose pre-federation powers, except to the extent to which they were transferred by the terms of the Constitution "remained exclusively vested in the States" [67] . In much the same sense Kitto J., in Bonser v. La Macchia [68] , speaks of s. 51 (x.) as disclosing an intention that legislative power over some part of the sea which "belonged to the colonies should be preserved to them as States of the Commonwealth".

1. (1913) 17 C.L.R. 644, at pp. 651-652. 2. (1913) 17 C.L.R., at p. 653. 3. (1969) 122 C.L.R., at p. 202.

Both the Constitution Act and the Constitution itself demonstrate the characteristic of which Viscount Haldane spoke. Covering cl. 3 describes that polity in which the peoples of the several colonies are united as "a Federal Commonwealth" and covering cl. 6 defines the "States" (inter alia) to be such of the original colonies as are "parts of the Commonwealth" of Australia and established under the Act; in effect the colonies are given the new title of States. Sections 106 and 107 of the Constitution then give effect to the union of the colonies by providing for the continuance of their several constitutions and of the powers of their several colonial parliaments, other than those powers vested in federal Parliament or withdrawn from the State Parliaments.

The result of this union into a federal Commonwealth is that "for all purposes of self-government in Australia, sovereignty is distributed between the Commonwealth and the States" so that each may in some aspects lawfully exercise sovereign powers (New South Wales v. The Commonwealth, per Evatt J. [69] , who dissented but not as to this point; cf. per Starke J. [70] and see per Lord Watson in Liquidators of Maritime Bank of Canada v. Receiver-General of New Brunswick [71] ). As Evatt J. pointed out in Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) [72] : "constitutionally speaking, the status of the States of Australia is equal to, or co-ordinate with, that of the Commonwealth itself. Sovereignty is not attributable to one authority more than to the others; it is divided between them in accordance with the demarcation of functions set out in the Commonwealth Constitution."

1. (1932) 46 C.L.R. 155, at p. 220. 2. (1932) 46 C.L.R., at pp. 184-185. 3. [1892] A.C. 437, at p. 442. 4. (1937) 56 C.L.R. 337, at p. 378.

Sir Owen Dixon expressed the same view when he said, in Federal Commissioner of Taxation v. Official Liquidator of E. O. Farley Ltd. [73] , that the constitution meant "to establish two governments, State and Federal, side by side, neither subordinate to the other "

Griffith C.J. described the effect of federation when he said, in Kidman's Case [74] : "When in 1901 the Australian Commonwealth was formed, this law" [the common law] "continued to be the law applicable to the rights and prerogatives of the Sovereign as head of the States as before, subject to any such local repeal".

On federation prerogatives which partook of the nature of proprietary rights and had theretofore been exercisable through colonial governors remained, thenceforth, "exercisable by the executives of the various States and for the benefit thereof" (per Evatt J., in the E. O. Farley Case [75] ).

Thus on federation a new polity was created but in a manner entirely different from that which occurred when each of the Australian colonies were created as self-governing entities; no grant of land territory was required and no league seas were involved; the colonies, as States, brought with them into the federation their land territory and their league seas.

It is for the foregoing reasons that I conclude that the validity of the Seas and Submerged Lands Act 1973 is to be ascertained upon the footing that the league seas surrounding Australia's coastline are the property of the Crown in right of the several States and are part of the territory of the several littoral States.

In arriving at this conclusion I have the misfortune to differ in some respects from certain of the views expressed by the Chief Justice and by Windeyer J. in Bonser v. La Macchia [76] ; included in these are the effect of Keyn's Case [77] , the persuasive authority in the Reference re Ownership of Off-shore Mineral Rights [78] and the consequences of the granting of self government to a colony. In the course of what I have already written I have endeavoured to state my reasons for so differing in these and other respects. I now add three further comments. The first relates to whether any inference arises from the nature of the jurisdiction exercised by Colonial Courts of Admiralty: Bonser v. La Macchia [79] . I do no more than refer to what was said by Gibbs J. in Reg. v. Bull [80] , and to add that the extent of Admiralty jurisdiction appears never to have had any significant relationship to the extent of territorial sovereignty and is not, in my view, capable of affording guidance in that area. Secondly, neither the Chief Justice nor Windeyer J. regarded the grant of self government to the colonies as significant because, as I would understand it, they had regard to sovereignty over league seas as an emanation of that recognition which international law accords to nation states, which the colonies never were (see per Barwick C.J. [81] and per Windeyer J. [82] ). I have earlier said that in my view international law appears to have had but a small part to play in the development of the concepts in issue in this case, at most supplying, through a process of judicial osmosis, a seaward boundary to those waters over which sovereignty is claimed. It follows from my adoption of this view that I derive no assistance, in the resolution of the questions raised in this case, from the undoubted fact that the colonies were never sovereign nations and did not attain international recognition as nation states. Finally I would adopt, with respect, what is said by Kitto J. in Bonser v. La Macchia [83] concerning the decisions in Keyn [84] and in Chelikani [85] and generally concerning the Federal Council of Australasia Act 1885 and s. 51 (x.) of the Constitution.

1. (1969) 122 C.L.R. 177. 2. (1876) 2 Ex. D. 63. 3. (1967) S.C.R. 792; 65 D.L.R. (2d) 353. 4. (1969) 122 C.L.R., at pp. 188-189, 222-223. 5. (1974) 131 C.L.R., at pp. 259-263. 6. (1969) 122 C.L.R., at pp. 185, 188. 7. (1969) 122 C.L.R., at p. 221. 8. (1969) 122 C.L.R., at pp. 201-202. 9. (1876) 2 Ex. D. 63. 10. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222.

Having, at no doubt undue length, arrived at my conclusion concerning the status of Australia's league seas the question of the validity of the Seas and Submerged Lands Act may now be answered relatively briefly.

I take first the external affairs power, conferred by s. 51 (xxix.) of the Constitution. If there is one consistent theme to be found throughout judicial discussion of the nature and extent of the external affairs power of the Commonwealth it is that it is undesirable to seek to express, in dicta, broad ranging views concerning its scope which go beyond the needs of the case in hand. The desirability of such an exercise in judicial restraint is obvious and I intend, as best I may, to observe it in the present case. Since I conclude that league seas are part of the territories of the littoral States of Australia it follows that they are not themselves external to Australia; it is therefore unnecessary to consider whether the power to legislate with respect to external affairs will extend to the making of a law merely because that law concerns a subject matter which is geographically external to Australia.

In the present case there exists an international convention which is relied upon to justify the exercise of legislative power under s. 51 (xxix.). Article 1 of the Convention on the Territorial Sea and the Contiguous Zone, to which Australia is a party, provides:

1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.

2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law..

Article 2 extends sovereignty to the airspace over the territorial sea.

The question is whether the existence of the Convention confers upon the Commonwealth power to enact those provisions of the Seas and Submerged Lands Act which relate to league seas and, in particular, s. 6 and s. 10 of the Act, which respectively declare to be vested in and exercisable by the Crown in right of the Commonwealth sovereignty in respect of the territorial sea and waters of the sea to the landward side of the baseline of the territorial sea, their beds, and subsoils, and the airspace over them. Sections 1 to 9 and 14 to 16 of the Act are ancillary to or consequential upon these two sections.

It is international intercourse between nation states which is the substance of a nation's external affairs. Treaties and conventions to which a nation may become a party form, no doubt, an important part of those affairs, but "external affairs" will also include matters which are not consensual in character; conduct on the part of a nation, or of its nationals, which affects other nations and its relations with them are external affairs of that nation, for instance, conduct in "violation of international comity", R. v. Burgess; Ex parte Henry, per Dixon J. [86] ; thus s. 51 (xxix.) has been held to justify a law making it an offence to excite disaffection within Australia against the government or constitution of any of the King's Dominions: R. v. Sharkey [87] . I would not think that it is essential to validity that such a law be restricted to the protection of good relations within the King's Dominions.

1. (1936) 55 C.L.R. 608, at p. 669. 2. (1947) 79 C.L.R. 121, at pp. 136-137, 149, 157, 163.

However it is not with the actual conduct by government of the nation's external affairs that the legislative power conferred by s. 51 (xxix.) is concerned; as Latham C.J. pointed out in R. v. Burgess [88] , relations with other countries "are necessarily established by governments, which act for their people in relation to other peoples, rather than by legislatures which make laws for them". The legislative power comes to be exercised when it is necessary to regulate "the conduct of Australians in and perhaps out of the Commonwealth in reference to matters affecting the external relations of the Commonwealth" - per Dixon J., R. v. Burgess [86] . It is when, in the conduct of Australia's external affairs, occasion arises for the making of laws enabling international obligations to be performed, international rights to be enjoyed or international relations with other states to be preserved upon a satisfactory footing that s. 51 (xxix.) arms the Commonwealth with this power. Thus "to implement a treaty", as Latham C.J. remarked in R. v. Burgess [89] , is a common, although by no means the only, occasion for the exercise of power to legislate under s. 51 (xxix.). It is just such a function that the Commonwealth here contends that the Parliament was engaged in when it enacted the legislation here under challenge; hence, it is said, its validity.

1. (1936) 55 C.L.R., at p. 643. 2. (1936) 55 C.L.R. 608, at p. 669. 3. (1936) 55 C.L.R., at p. 644.

I regard this contention to be plainly erroneous. The subject matter of the Convention calls for little by way of municipal action for its implementation; there is still less which requires implementation by legislation as distinct from executive action, and what little does require legislative action the Act fails to implement.

Under our system of law the need for legislative implementation arises whenever a treaty requires municipal action to give effect to it; if the consequences of a treaty involve legal enforcement in the courts and are not already authorized by municipal law legislation will be needed to make the necessary changes in the law or to equip the Crown with the necessary power to execute the treaty: McNair, Law of Treaties (1961), p. 81. Lord McNair examines, at pp. 83-100, the types of treaties which require legislative implementation. On the view which I take of the meaning and effect of Arts 1 to 13 of the Convention these articles call for no such implementation. The same may he said of Arts 25 to 32, which are articles of a machinery nature only. On the other hand Arts 14 to 24, concerned with the right of innocent passage, may well require Commonwealth legislative implementation in a federal polity in which the legislative or executive acts of member-states of the federation may affect conduct in league seas and may not be consistent with observance of Australia's international obligation to ensure in those seas rights of innocent passage to vessels of other nations. However the Act does not attempt to legislate in this way and this is, no doubt, because it assumes, in my view wrongly, that by asserting sovereignty over league seas it can validly preempt State legislative competence.

My view that Arts 1 to 13 call for no municipal implementation flows from my understanding of the meaning of these articles and, in particular, of the meaning of "sovereignty" as used in Arts 1 and 2. I take it to mean sovereignty as between nation and nation and not sovereignty as it may come to be distributed domestically within the polity of any individual nation state. Were it not that in these proceedings the contrary view was confidently asserted, I would regard this as beyond argument. The sovereignty of which Art. 1 speaks is that national sovereignty existing over a nation's land mass which the Convention "extends, beyond its land territory" to its territorial sea. The Convention takes as its starting point the assumption, fundamental to all dealings between nation states, that each possesses external sovereignty in respect of its own land territory. In this context "Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State": the Island of Palmas Case [90] . The "any other State" there referred to is any other nation state, any other fellow member of the international community and not, of course, another member, unrecognized internationally, of a federal polity of which one entity alone has international recognition as a nation state. The Convention's reference to sovereignty must be a reference to external sovereignty, which is the only sovereignty which is of relevance to international law. International law "refuses to concern itself with whether a state is federal or unitary. Both are treated alike In short, traditional international law leaves it to sovereign states to organize themselves internally as they see fit, provided the rights of third states are safeguarded under international law." (Bernier, International Legal Aspects of Federalism (1973), p. 269). International law does not concern itself to legislate as to the manner of distribution of powers within the polities of nation states of the international community and this whether they be unitary states or federations, the latter now being no novelty on the international scene since they represent that form of government by which about one-half of the population of the world is governed (Oppenheim's International Law, 8th ed. (1955), vol. 1, p. 179). As Innes C.J. remarked in R. v. Christian [91] , sovereignty is exercised in two directions and has a dual aspect, "internally it relates to the power of making and enforcing laws, externally to freedom from outside control This distinction between internal and external sovereignty is inherent."

1. (1928) 2 U.N. Rep. (International Arbn Awards) 829, at p. 838. 2. [1924] S.A.L.R. (A.D.) 101, at p. 106.

In his dissenting judgment in United States v. California [92] Frankfurter J. said of the majority's use of the expression "national dominion":

To declare that the Government has "national dominion" is merely a way of saying that vis-à-vis all other nations the Government is the sovereign. If that is what the Court's decree means, it needs no pronouncement by this Court to confer or declare such sovereignty. If it means more than that, it implies that the Government has some proprietary interest. That has not been remotely established If his Honour's words be applied instead to "sovereignty" and to its use in the legislation here in question they precisely express my views. 1. (1947) 332 U.S. 19, at p. 45 [91 Law. Ed. 1889, at pp. 1902-1903].

The distinction between internal and external sovereignty is well recognized; it was adverted to and explained inUnited States v. Curtiss-Wright Export Corporation [93] ; in despatches to the South Australian authorities concerning the "Vondel" affair, in 1902, Mr. Chamberlain, as Secretary to State for Colonial Affairs, made much of the distinction, contrasting the role of the Commonwealth, as alone representing the people of Australia and as alone bearing international responsibility in relation to matters affecting external states or communities with that of the Australian States. He distinguished between this situation and that relating to internal sovereignty when he said "The distribution of powers between Federal and State authorities is a matter of purely internal concern of which no external country or community can take any cognisance" (Doeker, The Treaty-Making Power in the Commonwealth of Australia (1966), p. 41).

1. (1936) 299 U.S., at pp. 316-318 [81 Law. Ed., at pp. 260-261].

Because the Convention refers to external sovereignty, so that Arts 1 and 2 require no municipal implementation, it follows that these articles cannot be relied upon as invoking legislative power under s. 51 (xxix.) to enact laws having effective operation within Australia. This is not to say that the Commonwealth may not, if it chooses, by legislation under s. 51 (xxix.), declare its external sovereignty over territorial waters. By proclamation of 11th September 1953 Australia's sovereign rights over its continental shelf were declared; it is no doubt not obliged to make such an assertion by executive action alone. The United Kingdom, in which problems of distributed internal sovereignty do not arise, in fact gave effect to the Convention by The Territorial Waters Order in Council 1964 rather than by any legislation: see Reg. v. Kent Justices [94] and Post Office v. Estuary Radio Ltd. [95] . In the latter case Diplock L.J., speaking for the Court, said that to extend sovereignty to new areas of land or sea lay within the prerogative power of the Crown, "for such extension the authority of Parliament is not required" [96] . In any event all that the existence of Arts 1 and 2 will authorize in the way of legislation, in the exercise of the "external affairs" power, is such a declaration of external sovereignty. What ss. 6 and 10 of the Act do is, however, much more than this; they purport to operate in the area of internal sovereignty.

1. [1967] 2 Q.B. 153. 2. [1968] 2 Q.B. 740, esp. at p. 754. 3. [1968] 2 Q.B., at p. 753.

It is the failure to appreciate the distinction between internal and external sovereignty that has apparently led to the assumption, implicit in the present Act, that when the Convention speaks of sovereignty it is in some way concerned with the distribution of powers within the polities of nation states. Without this assumption, which I regard as clearly erroneous, the validity of ss. 6 and 10 of the Act, which employ "sovereignty" in its internal sense, cannot be sought to be supported as an implementation of the Convention and hence within the power conferred by s. 51 (xxix.). These sections involve an acquisition by the Commonwealth of internal sovereignty over league seas to the exclusion of those other members of the federation, the States, which theretofore enjoyed legislative competency. To regard this as mere implementation of the Convention is to misconceive the role of international law and of international conventions. In Starke's Introduction to International Law, 7th ed. (1972), p. 295, the British attitude to international law and its absence of competence in domestic matters is thus stated:

British practice has adopted these principles, and in the course of the preparatory work for the Hague Codification Conference of 1930 it was officially stated on behalf of Great Britain that:

The distribution of powers between (a Federal State) and the other or subordinate units on whose behalf it is entitled to speak is a domestic matter with which foreign States are not concerned .

Of the present Convention it might well be said, as it has been said, in a quite different context, of the 1946 Convention on the Privileges and Immunities of the United Nations that "It is difficult to see how such a convention could operate except upon the international plane and as between parties possessing international personality." (Opinion of the International Court of Justice [97] .)

The present Convention establishes rules as between the nations who are parties to it concerning the sovereignty of the littoral nation, relative to other nations, over league seas and this is a matter which is of the essence of external affairs. It is also a matter without municipal effect and calling for no exercise by the littoral nation of its domestic legislative power to enact laws for the governance of its people.

I have already said that legislative or executive action by the Australian States, who are necessarily not parties to the Convention, might in some way prejudice those rights of innocent passage which the Convention accords to the vessels of foreign nations and that Commonwealth legislation in implementation of the Convention in this regard would be within power under s. 51 (xxix.) and would, in the light of the effect of s. 109 of the Constitution, enable Australia effectively to discharge its international obligations concerning innocent passage. However the present Act discharges no such obligations and this is a measure of its failure to derive validity from s. 51 (xxix.).

In what I have said above I have treated the Seas and Submerged Lands Act 1973, in its use of the term "sovereignty", as meaning internal sovereignty in contradistinction to the external sovereignty with which the Convention is concerned. If this were not so, if the Act also spoke only of external sovereignty, it would doubtless be a valid, although somewhat ineffectual, enactment, one which did not purport to effect any change whatever in the respective areas of State and Commonwealth legislative powers. The Commonwealth disclaims such an interpretation and the terms of ss. 14 to 16 of the Act are inconsistent with it. It is not, I think, an acceptable view of the meaning of the legislation.

It follows that I do not regard the Act, so far as it applies to league seas, as capable of support by reference to s. 51 (xxix.) of the Constitution. It is accordingly unnecessary that I should examine the question whether, even if it otherwise fell within s. 51 (xxix.), it might, because of its effect upon existing areas of State competence so "undermine the constitutional safeguards of Provincial constitutional autonomy" - Canada v. Ontario [98] as to contravene "the various constitutional limitations expressed or implied in the Constitution" (R. v. Burgess, per Starke J. [99] , and Airlines of New South Wales Pty. Ltd. v. New South Wales [No. 2] [1] ).

1. [1937] A.C. 326, at p. 352. 2. (1936) 55 C.L.R., at p. 658; also at pp. 642, 687. 3. (1965) 113 C.L.R. 54, at pp. 85, 87, 118, 165.

As an alternative to reliance upon the external affairs power the Commonwealth seeks to support validity of the Act by reference to s. 122 of the Constitution. On the view which I take of the character of Australian league seas, as forming a part of the territory of the littoral Australian States, it needs little by way of exposition to exclude those waters from the ambit of Commonwealth legislative power, derived from s. 122, to "make laws for the government of any territory" surrendered by a State or placed by the Queen under the authority of the Commonwealth or otherwise acquired by it. There can be no question of the surrender or placing of league seas under the authority of the Commonwealth, nor has there been any relevant acquisition; I have already said all that I would wish to say concerning the contention that, either on federation or at some later date when Australia acquired the status of an internationally recognized nation state, the Commonwealth "acquired" the Australian league seas. The closest approach to any such acquisition is, of course, the Seas and Submerged Lands Act itself. But s. 122 confers power to legislate for the government of territory once acquired, not for its initial acquisition, and cannot afford support for the validity of ss. 6 and 10 of the Act. Quite apart from this, the concluding phrase of s. 122, providing for the representation of any territory in Parliament, might, for obvious reasons, be difficult to reconcile with the concept that the league seas may be regarded as territory to which the section refers.

I conclude that s. 122 can provide no support whatever for the validity of the Act.

At the outset I referred to the two other grounds upon which validity was sought to be supported, as incidental to execution of the executive power of the Commonwealth and inherent in the Commonwealth's status as an international person. Given that the Act is concerned with internal sovereignty and not merely with external sovereignty the matters which I have already discussed suffice to dispose of these two grounds.

I accordingly conclude that those provisions of the Seas and Submerged Lands Act which purport to declare sovereignty, in an internal sense, to be vested in and exercisable by the Crown in right of the Commonwealth are invalid so far as they apply to Australia's league seas and to waters of the sea to landward of the baseline of league seas. It follows that s. 6 is wholly invalid and that s. 10 is in no better case.

The remaining sections of Pt I and of div. 1 of Pt II of the Act are in my view severable; they are capable of operation, quite independently of ss. 6 and 10, for the purpose of giving effect to provisions of the Convention concerned with the fixing internationally of the limits of the territorial sea. However the provisions of div. 3 of Pt II appear to me so inextricably concerned with the assertions of internal sovereignty effected by ss. 6 and 10 as to be incapable of severance. I would therefore include ss. 14, 15 and 16 in the declaration of invalidity.

I turn finally to div. 2 of Pt II of the Act, which is concerned with Australia's continental shelf and with the application thereto of the Convention on the Continental Shelf. Paragraph 2 of Art. 1 of that Convention is, with only minor and inconsequential alterations, reproduced in s. 11 of the Act:

11. It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.. The change in terminology of the Act from "sovereignty", when dealing with territorial seas, to "sovereign rights" in the case of the shelf is, although both terms refer, I believe, to external sovereignty only, evidence of the different approach which international law, as reflected in the two Conventions, adopts in relation to these two areas.

The validity of s. 11 and of the two other sections, which together comprise div. 2, as an exercise of the power to legislate in respect of external affairs, can be dealt with quite shortly, thereby reflecting the relatively brief arguments devoted to them during the hearing of this case. It is, I think, clear that the Australian colonies before federation made no claim to ownership of or dominion over the waters of Australia's continental shelf. The Federal Council of Australasia Act 1885 and the legislation passed pursuant to it and affecting waters off the Queensland and Western Australian coasts is testimony to the need felt by the colonies for imperial intervention if they were to attempt to assert legislative control over waters beyond league seas. The continental shelf was at the time of federation and remained for a considerable period afterwards res nullius, in the words of Lord Shaw in Chelikani's Case [2] . Into this vacuum stepped the Commonwealth; it had, by s. 51 (x.) of the Constitution, been endowed with legislative power, limited as to subject matter, over what was described as Australian waters beyond territorial limits and had exercised that power by legislating as to fishing in those waters. Then, by the proclamation of 11th September 1953, it asserted sovereign rights over the Australian continental shelf for the purpose of exploring and exploiting its natural resources. The terms of div. 2 of the Act mark the Commonwealth's most recent essay in this area.

The provisions of div. 2 are in my view in no respect beyond power; they legislate for waters which are wholly beyond the boundaries of State territory and their subject matter is not proprietorship inconsistent with State interests, nor is it even sovereignty, but sovereign rights for specific purposes, the exploration and exploitation of natural resources. In relation to the continental shelf there does not exist that conceptual duality which applies to league seas; the absence of any State interests means that for that area the Commonwealth may act as if it were a unitary state, without need to draw any distinction, if distinction there be, between internal and external aspects of "sovereign rights".

The rights which international law now accord to coastal States in respect of the continental shelf off their shores have not enured for the benefit of the respective Australian States so as to give them, at the expense of the Commonwealth, new rights they did not previously possess. I have already described the provisions of the Convention on the Territorial Sea as leaving unaffected the distribution of sovereignty within Australia's federal polity; the Convention on the Continental Shelf is no more potent in relation to sovereign rights to the continental shelf. When the Convention speaks of coastal states it refers to those international nation states which possess coastlines, in the case of Australia the Commonwealth. It follows that this assertion by the Commonwealth of sovereign rights over the continental shelf by means of legislation is an exercise of the powers conferred by s. 51 (xxix.). Apart from this consequence the Convention has no operative effect as between the constituent members of our federation. So far as they are concerned the only relevant facts are that the Commonwealth has proclaimed, and now enacted, its sovereign rights in an area in which the States have not, and never have had, any interests.

I should add that, consistently with the foregoing, I would not, as at present advised, regard any action which the Commonwealth may take to assert external sovereignty in respect of territorial waters over an area in excess of three miles seaward of appropriate baselines as productive of any effect upon the States' league seas. These waters will not be altered in extent by any variation in Australia's international assertion of more extensive territorial waters.

The invalidity which affects certain provisions of the Seas and Submerged Lands Act is therefore, in my view, confined to ss. 6, 10 and 14 to 16 of the Act and does not extend to such of its provisions as relate to the continental shelf.

I would accordingly, in each of the proceedings before us, confine any declaration of invalidity to these enumerated sections of the Act.

In actions commenced by the States against the Commonwealth for declarations that the Seas and Submerged Lands Act 1973 is beyond the powers of the Commonwealth Parliament, Menzies J. directed that there be argued before the Full Court the question whether the Act is valid.

The answer to this question depends upon, or is affected by, considerations of varying complexity. They must be examined at the outset, for it is only when they have been evaluated that the provisions of the Act can be seen in their true perspective and their effect correctly gauged.

The Littoral Boundaries of the Australian Colonies.

The plaintiffs' case is that the territorial sea and its solum form part of the territories of the States and that the Act cannot therefore be supported as an exercise of the legislative powers conferred by s. 51 (xxix.) or s. 122 of the Constitution. Central to this case is the proposition that the littoral boundaries of the Australian Colonies did not stop at low-water mark and that the territorial sea surrounding the Colonies formed part of their territory, as did the solum of the territorial sea. The initial obstacle which this argument encounters is that the delimitation of the colonial boundaries in the historical documents, as I read them, sets the seaward boundaries at the extremities of the land territory.

The territorial limits of the Colony of New South Wales were defined in two commissions issued to Governor Phillip. The second commission, constituted by letters patent dated 2nd April 1787, described the Colony as "extending from the Northern Cape or extremity of the coast called Cape York in the latitude of ten degrees thirty-seven minutes south to the southern extremity of the said territory of New South Wales or South Cape including all the islands adjacent in the Pacific Ocean within the latitudes aforesaid "

This description commences at a point on the east coast, proceeds south along that coast and terminates at another point on the coast, thereby making it clear that the boundary lies at the extremity of the land mass. The specific inclusion of islands in the Pacific Ocean is inconsistent with the notion that the Colony includes the sea and confirms that it is limited to the land mass and islands.

Subsequent alterations to the New South Wales boundaries did not affect the seaward limits.

The extent of the Colony of Tasmania was set out in the commission issued by letters patent dated 16th July 1825 which described the Governor's jurisdiction as extending to "our Island of Van Diemen's Land, and all Islands and Territories lying to the Southward of Wilson Promontory " Here again there is nothing in the description which includes within the Colony the sea or its solum.

The territorial limits of the Colony of Western Australia were defined in the commission issued by letters patent dated 4th March 1831 to Governor Stirling. It referred to the Colony as "extending from Cape Londonderry to West Cape Howe and from the Hertogs Island on the western coast in longitude one hundred and twelve degrees fifty two minutes to one hundred and twenty nine degrees of east longitude including all the islands adjacent in the Indian and Southern Oceans" within a defined area. The northern limits of the Colony were extended by a commission issued by letters patent dated 10th July 1873 to Governor Weld but not so as to alter the seaward boundary earlier established and that, plainly enough, followed the line of the coast in a fashion similar to the seaward boundary of New South Wales.

The seaward boundary of South Australia was described in letters patent dated 19th February 1836 issued pursuant to s. 1 of the Act 4 & 5 Wm IV c. 95, as "On the South the Southern Ocean" including "all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said Province". By including "Bays and Gulfs" the description departed from the approach taken in the case of the earlier Colonies. It was prompted by a desire to place beyond question the status of St. Vincent's Gulf and Spencer's Gulf which were by this means incorporated within the Colony. In other respects, however, the description of South Australia's seaward boundary conforms to earlier practice.

The first description of boundaries is to be found in s. 1 of the Australian Constitutions Act 1850 (13 & 14 Vict. c. 59) in which the Colony was described as including "the Territories comprised within the District of Port Phillip, including the Town of Melbourne ". There followed a statement of the northern and western boundaries.

The boundaries were re-defined by the commission issued to Governor Darling by letters patent dated 23rd June 1863 in which it was stated that the Colony consisted "of the Territories bounded on the South by the Sea".

The first definition of boundaries is contained in letters patent dated 6th June 1859 issued under s. 7 of the New South Wales Constitution Act, 1855. It excised from the Colony of New South Wales certain territory which lay to the north of a designated line which was set as the southern boundary of the new Colony. Specifically included were "all and every the adjacent islands their members and appurtenances in the Pacific Ocean".

Subsequently, by letters patent dated 13th March 1862 issued under s. 2 of the Australian Colonies Act 1861 there was annexed to the Colony so much of New South Wales "as lies to the northward of the 26th parallel of south latitude, and between the 141st and 138th meridians of east longitude, together with all and every the adjacent islands, their members and appurtenances in the Gulf of Carpentaria". By deed poll dated 22nd August 1872 the Governor of Queensland pursuant to powers conferred upon him by letters patent dated 30th May 1872 transferred to the Colony of Queensland "all the Islands lying and being within sixty miles of the coasts of the said Colony". Certain islands in the Torres Strait were subsequently included within the Colony by proclamation dated 18th July 1879.

The plaintiffs endeavoured to overcome the absence of any reference in the definition of the colonial boundaries to territorial waters and their solum by submitting that the definition must be read in the light of the supposed common law rule that the territorial sea formed part of the realm of England. For reasons which I shall state, the plaintiffs' submission does not accurately reflect the rule of municipal law as it was enunciated in the nineteenth century and, even if it did, the rule did not operate to alter or amend colonial boundaries otherwise defined or established at that time.

The old common law doctrine that the narrow seas around England were within the territorial sovereignty of the King, expressed in the treatise De Jure Maris attributed to Hale, supported by Selden and asserted in Chitty on the Prerogatives of the Crown, if it ever had validity, was pronounced to be obsolete by Viscount Haldane L.C., speaking for the Judicial Committee, in Attorney-General (British Columbia) v. Attorney-General (Canada) [3] . In its place there came into existence in British municipal law the concept of the territorial sea having its origins in, and owing much of its development and elaboration to, international law.

The initial, and perhaps the critical, question for consideration is whether under municipal law the territorial sea of three miles from low water, and its solum, formed part of the territory of the Crown before 1900 (the plaintiffs' case) or whether they were the subject of legislative jurisdiction which fell short of territorial dominion (the defendant's case). It is a vexed question upon which divergent views have been expressed.

In Reg. v. Keyn [4] , the issue was examined at great length. The case cannot be dismissed as one which decided no more than the limits of Admiralty jurisdiction. An essential step in the reasoning of the majority centred on the proposition that the realm of England ended at low-water mark and that the territorial sea, though the subject of admitted legislative jurisdiction, formed no part of England. Seven of the thirteen judges comprising the bench clearly reached this conclusion (Phillimore J. [5] ; Bramwell J.A. [6] ; Kelly C.B. [7] ; Cockburn C.J. [8] ; Lush J. [9] ; Pollock B. [10] ; and Field J. [10] ). It is not without importance that the words "realm" and "territory" were used interchangeably and synonymously by the judges - see per Cockburn C.J. [11] .

1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at p. 67. 3. (1876) 2 Ex. D., at p. 150. 4. (1876) 2 Ex. D., at pp. 150-151. 5. (1876) 2 Ex. D., at pp. 195, 197, 199, 219. 6. (1876) 2 Ex. D., at p. 238. 7. (1876) 2 Ex. D., at p. 239. 8. (1876) 2 Ex. D., at p. 239. 9. (1876) 2 Ex. D., at pp. 197-198.

The attempt made by the plaintiffs to detach Lush J. from the majority by suggesting that his Lordship expressed the view that the territorial sea was within the realm is belied by his judgment. Lush J. [9] expressly agreed with Cockburn C.J., whose opinion is not in doubt, and went on to say [12] :

In the reign of Richard II, the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now. 1. (1876) 2 Ex. D., at p. 238. 2. (1876) 2 Ex. D., at p. 239.

What Lush J. said subsequently in his judgment and what was undoubtedly correct, was that the territorial sea, though outside the realm, could be brought within the territory of England by Act of the Imperial Parliament [12] . This view was shared by Cockburn C.J. [13] and the judges who agreed with him. At the date of Keyn's Case, no legislation to this effect had been passed by the Imperial Parliament and thus the territorial sea was not then incorporated into the realm of England.

1. (1876) 2 Ex. D., at p. 239. 2. (1876) 2 Ex. D., at p. 198.

It is significant that in two cases decided in the year following Keyn's Case three judges who had been in the minority in that case held that Keyn's Case decided that the territory of England stopped at low-water mark (Harris v. Owners of Franconia, per Coleridge L.C.J., Grove and Denman JJ. [14] ; Blackpool Pier Co. Ltd. v. Fylde Union, per Coleridge L.C.J. and Grove J. [15] ). The same view has been expressed recently by the Supreme Court of Canada in Reference re Ownership of Off-Shore Mineral Rights [16] , and by Barwick C.J. and Windeyer J. in Bonser v. La Macchia [17] .

1. (1877) 2 C.P.D. 173, at pp. 177-178. 2. (1877) 36 L.T. 251, at p. 251. 3. [1967] S.C.R. 792, at p. 804; (1967) 65 D.L.R. (2d) 353, at p. 363. 4. (1969) 122 C.L.R. 177, at pp. 184, 218-219.

The Territorial Waters Jurisdiction Act 1878 Imp. did not reverse the principle according to which Keyn's Case was decided. The Act did not alter the seaward limits of British territory. It assumed the correctness of that decision and conferred on British and colonial courts jurisdiction to try offences committed by foreigners on board foreign ships within three nautical miles from the line of low water - the jurisdiction which Keyn's Case had held to be wanting in the absence of legislative action to confer it. The assertion of jurisdiction in the preamble to the statute "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" was a declaration of jurisdiction, not a declaration that the adjacent seas formed part of British territory.

On the other hand there are cases which appear to lend some support to the plaintiffs. However, in my view Carr v. Fracis Times & Co. [18] is not one of them. It decided no more than that for the purpose of the rule of private international law enunciated in Phillips v. Eyre [19] , an act committed within the territorial waters of Muscat was an act committed within the jurisdiction of the Sultan of Muscat, the act having been carried out under the authority of a proclamation issued by the Sultan who was the sovereign ruler. The Earl of Halsbury L.C. seems to have expressed an opinion more favourable to the plaintiffs [20] but it proceeds upon the mistaken view that the Territorial Waters Jurisdiction Act reversed the principle on which Keyn's Case was decided.

1. [1902] A.C. 176. 2. (1870) L.R. 6 Q.B. 1. 3. [1902] A.C., at p. 181.

There are, however, stronger statements of high authority which favour the plaintiffs. First there is the statement made in Lord Advocate v. Wemyss [21] by Lord Watson, speaking with reference to mineral rights below low-water mark [22] :

I see no reason to doubt that, by the law of Scotland, the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit, and also the minerals beneath it, are vested in the Crown. See also Lord Advocate v. Clyde Navigation Trustees [23] . 1. [1900] A.C. 48. 2. [1900] A.C., at p. 66. 3. [1891] 19 R. 174.

Next there are the observations of Parker J. in Fitzhardinge v. Purcell [24] :

Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the Crown The bed of the sea, so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers, can be granted by the Crown to the subject. 1. [1908] 2 Ch. 139, at pp. 166-167.

Then in Secretary of State for India v. Chelikani Rama Rao [25] it was held that islands formed on the bed of the sea within the territorial waters of India belonged to the Crown. Lord Shaw of Dunfermline regarded Keyn's Case [26] as deciding only the limits of Admiralty jurisdiction [27] , a view which cannot be sustained. His Lordship referred to Hale's doctrine and cited Parker J.'s observations in Fitzhardinge v. Purcell [28] , which were also based on sovereignty over the narrow seas, and went on to say: "There is nothing to recommend a local jurisdiction over a space of water lying above a res nullius" [29] . In the previous year Lord Shaw of Dunfermline had in Attorney-General (Southern Nigeria) v. John Holt and Co. (Liverpool) Ltd. [30] expressed a similar view of the Crown's ownership of the foreshore and the seabed.

1. (1916) L.R. 43 Ind. App. 192; 85 L.J.P.C. 222. 2. (1876) 2 Ex. D. 63. 3. (1916) L.R. 43 Ind. App., at p. 199; 85 L.J.P.C., at p. 224. 4. [1908] 2 Ch. 139. 5. (1916) L.R. 43 Ind. App., at p. 202; 85 L.J.P.C., at p. 226. 6. [1915] A.C. 599, at p. 611.

To the extent to which these observations are at variance with what was decided in Keyn's Case they do not in my opinion accurately reflect the law as it stood in 1900. They carry overtones of the ancient doctrine, enunciated by Selden and Hale, that the narrow seas were within the territorial sovereignty of the King, a doctrine which was then obsolete. They fail to acknowledge, as did the majority in Keyn's Case, that the territorial sea is a distinct concept which owes its origin, development and elaboration to international law and that it has been incorporated into British municipal law not as a supplement to the old notion of territorial sovereignty, but quite independently of it.

The decision in Chelikani's Case may be supported on the principle, well recognized in international law, that islands formed within the territorial sea are held to be an accretion to the territory of the littoral state. Unfortunately the Judicial Committee did not refer to the observations of Viscount Haldane L.C. in Attorney-General (British Columbia) v. Attorney-General (Canada) [31] , when his Lordship, delivering the judgment of the Board, said:

[Their Lorships] "desire, however, to point out that the three-mile limit is something very different from the "narrow seas" limit discussed by the older authorities, such as Selden and Hale, a principle which may safely be said to be now obsolete. The doctrine of the zone comprised in the former limit" [that is, the three mile-limit] "owes its origin to comparatively modern authorities on public international law. Its meaning is still in controversy. The questions raised thereby affect not only the Empire generally but also the rights of foreign nations as against the Crown, and of the subjects of the Crown as against other nations in foreign territorial waters. Until the Powers have adequately discussed and agreed on the meaning of the doctrine at a Conference, it is not desirable that any municipal tribunal should pronounce on it Until then the conflict of judicial opinion which arose in Reg. v. Keyn [31a] is not likely to be satisfactorily settled, nor is a conclusion likely to be reach on the question whether the shore below low water mark to within three miles of the coast forms part of the territory of the Crown or is merely subject to special powers necessary for protective and police purposes. The obscurity of the whole topic is made plain in the judgment of Cockburn C.J. in that case. But apart from these difficulties, there is the decisive consideration that the question is not one which belongs to the domain of municipal law alone." 1. [1914] A.C., at pp. 174-175. 2. (1876) 2 Ex. D. 63.

These observations, though leaving open the correctness of the actual conclusion reached in Keyn's Case, make it clear that the approach which the majority took, based on an examination of international law, was to be preferred to an approach based on the ancient doctrine of territorial sovereignty. Moreover, Viscount Haldane made it equally plain that the rule of international law was dynamic and that the solution which it might ultimately provide to the issue debated in Keyn's Case would turn on the future evolution of international law.

The decision in Chelikani's Case, and indeed the concept of territorial sovereignty in the bed of territorial waters on which the decision was based, may also be supported, not as an instance of the old common law doctrine of territorial sovereignty, but as an example of the modern rule of international law as it has evolved in the twentieth century, for the concept of territorial sovereignty on the territorial sea and its solum was plainly recognized in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (see Arts 1 and 2). And the International Court of Justice has held that the continental shelf is a natural extension of the land territory of the coastal state appertaining to it for the purpose of exercising its sovereign rights (North Sea Continental Shelf Cases [32] ). Even so, it is necessary to distinguish between the land territory of a coastal state on the one hand and its territorial sea and solum on the other hand, for the coastal state in the exercise of its sovereign rights is bound to give effect to the obligations relating to the right of innocent passage imposed upon it by the Convention in respect of its territorial sea and solum. Accordingly, the territorial rights now conceded by international law to the coastal state in the solum of territorial waters stamp it with the character of territory that is different from the land territory of the coastal state.

All this in a sense is by the way. We are primarily concerned to identify the extent of the colonial boundaries prior to 1900. In so far as it is relevant to that question, we should look to the municipal law, based on a concept of international law then in course of evolution, as it was enunciated in the one authoritative decision given in the nineteenth century, a decision which appears to have proceeded on a comprehensive review of all the relevant materials. We are not justified in discarding this decision in favour of subsequent and conflicting judicial observations which reflect either an outmoded doctrine of territorial sovereignty or later developments in international law.

But in the end we must return to the delimitation of the colonial boundaries in the historical documents. They are expressed to lie at the extremity of the coast. They are in terms inconsistent with the attempt now made by the plaintiffs to engraft upon them an additional tract of territory extending throughout the three-mile limit and beyond. The definition of the boundaries is consistent with the existence of a legislative competence on the part of the Imperial Parliament and the colonial legislatures throughout the three-mile limit and beyond. It is even consistent with the retention by the Crown in right of the United Kingdom of territorial sovereignty in the territorial sea and its solum, assuming such a sovereignty to have been conceded then by municipal law, contrary to the opinion which I have expressed. But the delimitation of the colonial boundaries denies that they stood at the outer margin of the territorial sea.

The colonies lacked authority to alter their boundaries by unilateral action. Section 2 of the Colonial Boundaries Act, 1895 Imp. provided that the Queen, on the advice of her Imperial Ministers, might with the consent of a self-governing colony, alter the boundaries of that colony (s. 2). This provision belied the existence of a power in a colonial legislature to take unilateral action. And no alteration was ever made under the Colonial Boundaries Act.

The opinion which I have already expressed as to the authority of Keyn's Case before 1900 answers the submission that the territorial sea and its solum could, in the absence of some addition to the territories of the colonies, or of legislative action, constitute territory of the colonies situated outside the colonial boundaries. The plaintiffs argued that the solum of the territorial sea was waste land of the colonies. However, the power given to the colonies to alienate waste lands of the Crown was limited to waste lands "within the said Colony" - see Constitution Act, 1855 N.S.W. (18 & 19 Vict. c. 54), s. 43; Constitution Act, 1855 Vict. (18 & 19 Vict. c. 55), s. 54; Constitution Act, 1867 Q., s. 30; Wastelands Act, 1855 Imp. (18 & 19 Vict. c. 56), ss. 5, 7.

There is another consideration which to my mind is significant. The Colonial Boundaries Act and, more importantly, s. 123 of the Constitution assume that the boundaries of the Australian colonies and subsequently of the States are fixed boundaries capable of alteration only in the manner prescribed. Yet we know that the concept of the territorial sea is a concept of international law that is evolving and developing. In the nineteenth century the three-mile limit was generally, if not universally, accepted. But by 1958 there were a number of nations that claimed a wider territorial sea, with the result that the width of the territorial sea was left unstated by the Geneva Convention in that year. Today a wider territorial sea is claimed by many nations. If, and it is a future possibility that cannot be discounted, the territorial sea asserted by the Commonwealth should extend beyond three miles, is the extension to be regarded as effecting an alteration to the limits of the States, though not effected in the manner prescribed by s. 123? The question must be answered in the negative. The territorial sea is essentially a conception of international law; its extension or reduction does not affect the boundaries of the constituent elements in the Federation.

That the territorial sea is essentially a conception having its origins in and owing its elaboration to international law supplies a further reason for rejecting the notion that the subsoil of territorial waters adjacent to a colony formed part of the territory of that colony. The colonies were not members of the community of nations. In so far as rights were conceded by international law to the coastal state over its territorial sea (and the concession of these rights is the foundation of the relevant rule of nineteenth-century municipal law) no such rights inhered in the colonies per se; they vested in Great Britain or the Imperial Crown. The territorial sea surrounding the Australian colonies was in the eye of international law, British territorial waters.

There is therefore no basis on which the suggestions sometimes made in the British Law Officers' opinions in the nineteenth century that territorial waters formed part of the territory of the colonies can be supported. The persuasive effect of these opinions is in any event diminished by the contrariety of view which they express. They reflect the controversy of which Viscount Haldane spoke in 1914. They do not convince me that the colonial boundaries included territorial waters.

The Colonies' Legislative Power in relation to the Territorial Sea.

All this is not to say that the colonies lacked legislative power to make laws having effect in territorial waters. International law provides no reason for denying to Great Britain legislative power and jurisdiction over the territorial waters adjacent to a colony and its subsoil. This power and jurisdiction were exercisable in an appropriate case by a colonial legislature possessing power to legislate for the peace, order and good government of the colony. The power to make laws for the peace, order and good government of a colony was wide enough to enact laws applying to territorial waters and beyond. So much was finally recognized by the decision of the Privy Council in Croft v. Dunphy [33] , despite suggestions to the contrary arising from what was said in Macleod v. Attorney-General (N.S.W.) [34] and what was then decided in relation to the Dominion of Canada had a like application to the situation of the colonies before 1900 (Reg. v. Bull [35] ). This power was large enough to enable the colonial legislatures to authorize the grant of leases and other estates or interests and the construction and maintenance of works in the seabed below low-water mark. No doubt a colony could, if it were so minded, legislate so as to vest in the Crown or an instrumentality of the Crown proprietary interests in the seabed.

1. [1933] A.C. 156. 2. [1891] A.C. 455. 3. (1974) 131 C.L.R. 203.

As between the Crown and a subject, instances may be found of the grant by the Crown without legislative authority of proprietary interests in the foreshore or seabed. As against the Crown the subject could not dispute the Crown's title. But this constitutes no ground for concluding that Keyn's Case is incorrect in relation to the Australian colonies. And the decisions of the United States Supreme Court and the Supreme Court of Canada denying the territorial waters and the seabed formed part of the territory of the States of the Union and the Provinces of the Dominion confirm the absence of any proprietary interest in the Australian Colonies (Reference re Ownership of Off-Shore Mineral Rights [35a] ; United States v. California [36] ).

1. [1967] S.C.R. 792; (1967) 65 D.L.R. (2d) 353. 2. (1947) 332 U.S. 19 [91 Law. Ed. 1889].

The Commonwealth's Powers in relation to the Territorial Sea.

The Constitution Act of 1900 brought the Commonwealth into existence as a potential member of the community of nations, with a capacity to conduct its relationships with other nations. When it actually became a member of the community of nations, and accepted as an international persona, it is not necessary to decide. Whether it was achieved on federation or at some time before the Balfour Declaration, the Statute of Westminster, 1931 and the Statute of Westminster (Adoption) Act 1942 Cth, is not of present importance. What is of importance is that it is consistent with the Commonwealth's character as an international persona and with the States' lack of that character, that legislative power and jurisdiction over the territorial sea and its seabed should reside in the Commonwealth rather than the States.

In United States v. California [37] the Supreme Court of the United States observed that national interests, rather than the interests of individual states, were paramount in the three-mile belt. The control and regulation by the coastal state of its territorial sea, and for that matter of its solum, is an aspect of its external sovereignty and its external relationships with other nations. It is therefore a function as appropriate to the Commonwealth as it is inappropriate to the States. Judged even from a domestic standpoint the territorial sea has such important consequences for the defence of the nation, for the protection of the revenue, for quarantine and for national interests in general that it is not readily to be supposed that upon federation the power to regulate and control the territorial sea and its solum was vested in the States to the exclusion of the Commonwealth, thereby denying to the Commonwealth power to establish a uniform regime in that area, and leaving it subject to the enactment of diverse and discordant rules.

1. (1947) 332 U.S., at p. 35 [91 Law. Ed., at p. 1897].

Once it is accepted that the boundaries of the Colonies terminated at low-water mark there is in my opinion no reason why the Commonwealth's power to make laws with respect to "external affairs" (s. 51 (xxix.)) should not be regarded as conferring upon it a plenary power to legislate upon the topic of the territorial sea and its solum. There is abundant authority for the proposition that the subject matter extends to Australia's relationships with other countries and in particular to carrying into effect treaties and conventions entered into with other countries, provided at any rate that they are truly international in character (R. v. Burgess; Ex parte Henry [38] ; Airlines of New South Wales Pty. Ltd. v. New South Wales [No. 2] [39] ).

1. (1936) 55 C.L.R. 608. 2. (1965) 113 C.L.R. 54.

The plaintiffs' argument proceeds on the footing that the power is no more than a power to make laws with respect to Australia's relationships with foreign countries. Why the power should be so confined is not readily apparent. The power is expressed in the widest terms; it relates to "affairs" which are external to Australia. "Affairs" include "matters" and "things" as well as "relationships" and a constitutional grant of plenary legislative power "should be construed with all the generality which the words used admit" (Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. [40] ).

In order to cut down the meaning and operation of the words it was suggested that the words "external affairs" were selected because the traditional expression "foreign affairs" might exclude Australia's relationship with other parts of the British Empire (Burgess' Case [41] ). This observation, though it illuminates the motives which actuated the selection of the words, does little to define their meaning and scope.

Next it was urged that to give a wide meaning to the power would make other heads of power in s. 51 redundant, notably s. 51 (x.) and (xxx.). The frailty of this argument is that, even on a limited view of s. 51 (xxix.), it appears to embrace Australia's relationships with the islands of the Pacific, and consequently to cover the field included in s. 51 (xxx.). Furthermore, the reference to "relations" in s. 51 (xxx.) strongly suggests that external affairs in s. 51 (xxix.) is a more comprehensive expression which is not confined to relationships with other countries.

Similarly, I am not persuaded by the plaintiffs' submission relating to s. 51 (x.). There can be little doubt that control and regulation of fisheries beyond territorial limits was regarded as having such importance as to require its specific mention in s. 51. Fishing and fisheries were a matter of great concern to the Australian colonies before federation. The fisheries power had been included in the short list of powers conferred on the Federal Council of Australasia by the Federal Council of Australasia Act 1885, s. 15 (c). Its omission from s. 51 of the Constitution was not to be contemplated; in its historical context, the omission may have had an untoward significance in the interpretation of the Constitution.

For these reasons it is my opinion that the power conferred by s. 51 (xxix.) extends to matters or things geographically situated outside Australia. This view appears to accord with what was said by Evatt and McTiernan JJ. in Burgess' Case [42] . And it applies with special force to the territorial sea and its solum because, as I have already observed, their control and regulation is an aspect of the external sovereignty of Australia and Australia's external relationships with other nations.

The rejection of the plaintiff's claim to territory and ownership of the bed of the territorial sea necessarily denies their title to the continental shelf, that is, for present purposes, that part of the continental shelf which extends beyond the outer margin of the territorial sea. Indeed, in terms of history there is nothing to sustain a claim by the Australian colonies to proprietary interests in the seabed beyond the outer margin of territorial waters.

It follows, then, that in my view the Commonwealth Parliament has power under s. 51 (xxix.) to make laws affecting the ownership, regulation and control of the territorial sea, its solum and the continental shelf.

In its preamble the Act refers to the Geneva Convention on the Territorial Sea and the Contiguous Zone (1958) and the Convention on the Continental Shelf, also made at Geneva in in 1958, to each of which Australia is a signatory. The terms of each Convention are set out in Schedules 1 and 2 of the Act.

The most important provisions of the Convention on the Territorial Sea are those contained in Arts 1, 2, 3, 5 (1), 6, 14 (1) and 15 (1), which are set out below:

1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.

2. This sovereignty is exercised subject to the provisions of these articles and to other rules of international law.

The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil.

Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on largescale charts officially recognized by the coastal State.

1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

1. Subject to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.

1. The coastal State must not hamper innocent passage through the territorial sea.

The substance of the Convention is to declare that a coastal state has sovereignty over that part of the waters adjacent to its coast known as the territorial sea and over the seabed and subsoil of that territorial sea together with the airspace. Whether these provisions are merely declaratory of existing international law or whether they are innovative need not be considered.

The Convention on the Continental Shelf also gives a coastal state certain special rights in relation to parts of the seabed adjacent to its coast. The main provisions setting out the rights of the coastal state are those contained in Arts 1, 2 and 3 which are reproduced below:

For the purpose of these articles, the term "continental shelf" is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters.

In short, the effect of these articles is to give to the coastal state exclusive rights of exploration of its continental shelf and an exclusive right to exploit its natural resources. These rights, however, do not amount to a complete sovereignty over the shelf nor over the superjacent waters or airspace (Art. 3). Further, these rights are subject to certain obligations which are predominantly set out in Art. 5.

According to its long title the Act is "An Act Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to Sovereign Rights in respect of the Continental Shelf and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from the Continental Shelf."

Sections 6, 10 and 11, around which the argument principally centred, provide as follows:

6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth.

10. It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth.

11. It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

It will be seen that the Act has a dual effect; first, it asserts, at international level, Australia's rights over the territorial sea and the continental shelf; secondly, it declares as a matter of domestic law that these rights are vested in the Commonwealth - this much at least flows from the reference to "the Crown in right of the Commonwealth" in ss. 6, 10 and 11 and the saving provisions contained in ss. 14, 15 and 16.

The concept expressed by the word "sovereignty" in Arts 1 and 2 of the Convention on the Territorial Sea is that of supreme authority, the supreme authority which a State is recognized by international law as having over its land territory, howsoever the exercise of that supreme authority may be divided between the municipal organs of government within the state, as for example within a state which is a federation. As the International Court of Justice stated in the North Sea Continental Shelf Cases [43] and as Barwick C.J. observed in Bonser v. La Macchia [44] , the continental shelf is considered to be, for the purpose of the exercise of sovereign rights by the coastal state, "a natural prolongation of its land territory". So also is the bed of the territorial sea. This is not to say that the seabed is territory in the sense that the land territory of the coastal state is territory. But it is to say that subject to the Convention and to the rules of international law the coastal state possesses that supreme authority over the bed and subsoil of territorial waters which it enjoys over its land mass, and that in the exercise of this authority the coastal state may in accordance with international law assert ownership and dominion if it chooses so to do.

1. [1969] I.C.J. Rep. 3. 2. (1969) 122 C.L.R., at p. 186.

The Act seeks to give effect to the Convention by asserting that the sovereignty in respect of the territorial sea, its land and subsoil as well as the airspace over it "is vested in and exercisable by the Crown in right of the Commonwealth" (s. 6). Conformably with my conclusions as to the location of the seaward boundaries of the Australian colonies and the scope of the legislative power under s. 51 (xxix.), s. 6 of the Act asserts the existence of that supreme authority which is acknowledged by the Convention to reside in the coastal state and provides that it is vested in, and exercisable by the Crown in right of the Commonwealth, an expression which is apt to include the Commonwealth Parliament. The section cannot, and does not, deny to an Australian State the capacity which it has, in the exercise of its power to legislate for the peace, order and good government of the State, to apply its laws to the territorial sea, its bed and subsoil, but such laws will to the extent of any inconsistency with a valid Commonwealth law enacted under s. 51 (xxix.) or any other head of power, be rendered inoperative by s. 109. Whether the Commonwealth can hereafter acquire the seabed as a territory of the Commonwealth and thereafter legislate under s. 122 is not a question which needs presently to be pursued.

Section 8(a) enables the Governor-General to declare an historic bay to be an historic bay and to define its seaward limits. Such a bay, in accordance with international law and Art. 6 of the Convention does not form part of the territorial sea, but is held to be inland waters. Section 8(b), a similar provision relating to historic waters, is less clear in its operation, but it raises no point of importance.

The conjunction of s. 10 and s. 14 is not without its difficulty. Section 10 declares that sovereignty in respect of inland waters (that is, waters of the sea on the landward side of the baseline of the territorial sea), so far as they extend from time to time, and in respect of the superjacent airspace and subjacent seabed and subsoil is vested in, and exercisable by the Crown in right of the Commonwealth.

Apart from the saving provisions of s. 14 this section might be seen as an attempt to vest in the Commonwealth sovereign rights in inland waters lying within State boundaries. The expression "inland waters" is confined to waters of the sea. Even so, there will be waters below low-water mark which are on the landward side of the baselines of the territorial sea. A baseline drawn between adjacent headlands will enclose inland waters in the sense described standing between low-water mark and the baseline so drawn. These waters will stand outside State boundaries and will fall within s. 10.

The saving provisions of s. 14 are designed to preserve State rights over internal waters within the territory of a State, as for example, waters of the sea within a bay which is on the landward side of the baselines of the territorial sea. Consequently, the operation of ss. 10 and 14, so it seems to me, do not operate so as to attempt to vest in the Commonwealth sovereignty over waters within the territory of a State.

In giving effect to the Convention on the Continental Shelf the Act is a valid exercise of the power conferred by s. 51 (xxix.). It is in no sense inconsistent with the territorial rights of the States.

I would answer the question asked in the affirmative and dismiss the suits.

The first question which I ask is - (1) What is the sovereignty of which the Act speaks and in what way does it speak thereof? If it is only that sovereignty of Australia which Australia as a nation asserts among the community of nations and if it does no more than declare that sovereignty, then the Act is in my opinion valid; but whether it be valid or not, no question is raised which falls to be determined between the Commonwealth and the States as to the extent of their respective powers. If Australia cannot declare its sovereignty over the whole or any part of its territory or of the seas beyond then certainly no State could do so. There is in this no impingement on State rights.

If the Act not only declares the sovereignty among nations but also provides how that sovereignty shall be exercised within the Commonwealth, then the question arises whether the Commonwealth has purported to provide for the manner in which sovereign power shall be exercised within the boundaries of the States as they existed at 1st January 1901. That question will be resolved by determining the question - (2) Were any parts of the sea, in respect of which the Act declares that sovereignty shall be exercisable by the Crown in right of the Commonwealth expressly comprised within the boundaries of a State or States at 1st January 1901? If that question be answered Yes, the Act is invalid so far as it purports to confer the exercise of power solely upon the Commonwealth to the exclusion of the exercise by the States of their powers in respect of subject matters upon which the Commonwealth under the Constitution has no power to legislate.

But if that question be answered in the negative, then it is necessary to ask - (3) Does any part of that sea, though it be not expressly within the boundaries of a State or States, adhere to the State or States which it adjoins so that by implication or operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries?

If that question be answered Yes, the Act will be invalid to the same extent as it would be if the second question be answered Yes. But if the third question be answered in the negative, a question remains - (4) Does a declaration by Australia that it has sovereignty or sovereign rights among the nations over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same powers as it has over the territory expressly comprised within its boundaries?

If these last three questions arise and are answered in the negative, then the plaintiff States have not established that the Act is invalid unless it be beyond the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or sovereign rights over an area of the sea outside the boundaries of the States where that sea is not territory of the Commonwealth within the meaning of s. 122 of the Constitution. And that is the fifth, and last, question - (5) What is the sovereignty of which the Act speaks and in what way does it speak thereof?

The Act is described as an Act relating to sovereignty in respect of certain waters of the sea and in respect of the airspace over, and the seabed and subsoil beneath, those waters and to sovereign rights in respect of the continental shelf and relating also to the recovery of minerals, other than petroleum [sic], from the seabed and subsoil beneath those waters and from the continental shelf. There is a preamble consisting of four recitals. First it is recited that the belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace thereover and the bed and subsoil thereof are within the sovereignty of Australia. Then there is a recital that Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone, a copy of which is set out in the First Schedule to the Act. Next there is a recital that Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the seabed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources. Lastly there is a recital that Australia is a party to the Convention on the Continental Shelf, and a copy of that Convention is set out in the Second Schedule to the Act. "Continental shelf" is defined in s. 3 to have the same meaning as in the Convention.

The Act in ss. 5-13 provides for the sovereignty of Australia in respect of the territorial sea and the sovereign rights of Australia in respect of the continental shelf. In respect of the territorial sea, the Governor-General may by s. 7 from time to time by proclamation declare not inconsistently with the Convention the limits of the whole or of any part of the territorial sea of Australia. He may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea or of any part thereof is to be measured. He may declare a bay to be an historic bay and define the seaward limits of that bay, or he may declare that waters are historic waters and define the limits of those waters. Under s. 9 the minister may cause to be prepared charts showing any matter relating to the limits of the territorial sea. Thus by the Act the limits of the territorial sea of Australia may be defined. Similar provisions are made in respect of the limits of the continental shelf.

In respect of the territorial sea, s. 6 declares and enacts that the sovereignty in respect of that sea and in respect of the airspace over it and in respect of its bed and subsoil is not only vested in but also is exercisable by the Crown in right of the Commonwealth. By s. 10 it is declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time and in respect of the airspace over those waters and in respect of the seabed and subsoil beneath those waters is vested in and exercisable by the Crown in right of the Commonwealth. The waters of the sea here referred to are in my view the waters of the sea which cover the sea bottom. The seashore between high and low-water mark is not "waters of the sea" and therefore is not "internal waters of Australia" within s. 10.

There are saving provisions in ss. 14, 15, and 16. In particular, in s.14 there are savings as to sovereignty or sovereign rights in respect of any waters of the sea which are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and which were on 1st January 1901 within the limits of a State and which remain within the limits of the State. Thus the effect of s. 10 is to ensure that sovereignty and sovereign rights in respect of all internal waters of Australia not falling within the saving provisions of s. 14 are not only vested in but also exercisable by the Crown in right of the Commonwealth.

In respect of the continental shelf, s. 11 declares that the sovereign rights of Australia as a coastal state in respect thereof for the purpose of exploring it and exploiting its natural resources are both vested in and exercisable by the Crown in right of the Commonwealth.

The first question is the meaning of the word "sovereignty" in the Act. The word expresses a concept notoriously difficult of definition but I would essay that sovereignty under the law of nations is a power and right, recognized or effectively asserted in respect of a defined part of the globe, to govern in respect of that part to the exclusion of nations or states or peoples occupying other parts of the globe. External sovereignty, so called, is not mere recognition by other powers but is a reflection, a response to, the sovereignty exercised within the part of the globe. Looked at from the outside, the sovereignty within that part of the globe, assuming it to be full sovereignty and not the limited sovereignty which may exist in the case of protectorates and the like, is indivisible because foreign sovereigns are not concerned with the manner in which a sovereign state may under the laws of that sovereign state be required to exercise its powers or with the fact that the right to exercise those powers which constitute sovereignty may be divided vertically or horizontally in constitutional structure within the State. Therefore, although a sovereignty among nations may thus be indivisible, the internal sovereignty may be divided under the form of government which exists. However, that does not mean that external sovereignty and internal sovereignty are in kind different. Sovereignty in each case has the same content, the right and power to govern that part of the globe.

The provision that sovereignty in respect of the territorial seas is vested in the Crown in right of the Commonwealth is an assertion and declaration to the world of that aspect of sovereignty which is sometimes called external sovereignty. It does no more than could be done by the prerogative act of asserting that sovereignty.

The Act also provides that that sovereignty is exercisable by the Crown in right of the Commonwealth. It does not appear to me that this is merely an assertion of external sovereignty. It correctly speaks of the same sovereignty but now the legislation looks at the manner in which that sovereignty shall be exercised within Australia. It is a legal provision that the asserted sovereignty will be exercisable in Australia by the Crown in right of the Commonwealth. I read these words to refer to the Crown in all its aspects in that right, the Crown in Council, the Crown in Parliament, and the Crown as the fount of justice. It is an assertion that the sovereignty is able to be exercised by the Commonwealth to the exclusion of the States. That exclusion, however, is mitigated by the saving of State laws in s. 16(b).

Can the Australian Parliament so provide? There can be no doubt that if, beyond waters of or within any bay, gulf, estuary, inlet or port referred to in s. 14, the sea which may be proclaimed by the Governor-General under s. 7 is within the boundaries of a State, it is beyond the power of the Australian Parliament to provide that sovereignty in respect thereof is exercisable by the Commonwealth to the exclusion of that State. The next question therefore is -

(2) Were any parts of the sea in respect of which the Act declares that sovereignty shall be exercisable by the Crown in right of the Commonwealth expressly comprised within the boundaries of a State or States at 1st January 1901?

It is necessary to examine the documentation by way of statute, letters patent, commission or proclamation whereby the boundaries of the States are established.

I do not propose to relate fully the history of the specification and alterations of the boundaries of the various Australian colonies. That has been comprehensively done by Mr. McLelland in his article appearing in the Australian Law Journal, vol. 45 (1971), p. 671. After Cook's claim, the boundaries of New South Wales were first defined in the commissions to Governor Phillip which referred to "our territory called New South Wales, extending from the northern cape or extremity of the coast called Cape York, in the latitude of 10°37′ south, to the southern extremity of the said territory of New South Wales or South Cape, in the latitude of 43°39′ south, and of all the country inland to the westward" as far as 135° longitude east "including all the islands adjacent in the Pacific Ocean, within the latitude aforesaid and of all towns, garrisons, castles, forts and all other fortifications or other military works which now are or may be hereafter erected upon this said territory". In my opinion this language refers to land only. As will hereafter appear, a reading of the language in the light of common law principle will include there-in the waters which may be compendiously described as "inland waters" and will everywhere include the seashore down to low-water mark. But the language itself refers to land only.

In 1824 Captain Bremer took possession of the North Coast of the continent from longitude 135°E, the existing boundary, to longitude 129°E and the 1825 commission to Governor Darling described the territory of New South Wales as extending to the longitude 129°E.

Tasmania was constituted a separate colony by Order in Council in 1825. A Governor in Chief was appointed "in and over our Island of Van Diemen's Land, and all Islands and Territories lying to the Southward of Wilson Promontory and to the northward of the forty fifth degree of south latitude" (this was 1°21′ south of the South Cape latitude described in Phillip's commission) "and between the hundred and fortieth and hundred and fiftieth degree of longitude East from Greenwich and also Macquarie Island and of all Towns, Garrisons, Castles, Forts and all other Fortifications or other Military Works, which are or may be hereafter erected upon any of the said Islands and Territories". Again this language appears to me to refer only to the land. It has been submitted that a rectangle was described by the latitudes and longitudes in such a way that both land and sea contained therein were intended to be included as territory of the colony. It has been further submitted that if land only was intended to be included in the description then the word "territories" was superfluous and that the words "Island" and "Islands" would have sufficed. But on the other hand it could be said that if the colony was intended to consist of the whole surface of the globe within the described rectangle, no further description would have been necessary. The primary meaning of "territory" is land and I can discover in the language nothing which would displace that primary meaning.

After Western Australia, which I shall leave for the moment, the next colony established was South Australia. By the Letters Patent of 1836 the Province was erected with boundaries fixed on the North 26°S and on the South the Southern Ocean. East and West land boundaries were fixed and the description continued "including therein all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said Province " In 1861 the Western boundary was extended to meet the Eastern boundary of Western Australia but the description of the Southern boundary has not been altered, directly or indirectly. The language speaks for itself.

Western Australia was first settled as a colony in 1829. Its boundaries, which at all times lay wholly outside the boundaries of New South Wales, were finally fixed by Letters Patent of 10th July 1873 as follows:

Our Colony of Western Australia is, for the future, to be considered and taken as extending from the parallel of thirteen degrees thirty minutes south latitude, to West Cape Howe in the parallel of thirty-five degrees eight minutes south latitude and from the Hartogs Island, on the Western Coast, in longitude one hundred and twelve degrees fifty-two minutes to one hundred and twenty-nine of east longitude including all the islands adjacent in the Indian and Southern Oceans within the latitudes aforesaid and within the longitudes aforesaid This language is consistent only with an intention to refer to the land, the mainland and the islands. The sea surrounding the islands is not included.

Victoria was made a separate colony in 1850 by the Australian Constitutions Act. The Act provided that:

the Territories now comprised within the said District of Port Phillip, including the Town of Melbourne , and bounded on the North and North-east by a straight Line drawn from Cape How to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia, should form the new colony. The district of Port Phillip was of course a district of New South Wales. At this stage New South Wales, by virtue of the 1848 Commission to Governor Fitzroy, comprised: all that portion of Our Territory of Australia or New Holland, lying between the 129th and the 154th degrees of East longitude and between the 26th and the 40th degrees of South latitude, including all the Islands adjacent in the Pacific Ocean, within the latitudes aforesaid, save and except that part of Our said Territory hereinbefore described, which is called and known by the name of the "Province of South Australia". and "in addition all Our Territory lying Northward of the 26th degree of South Latitude, with all the Islands adjacent in the Pacific Ocean". (The "addition" was related to the inclusion in New South Wales of the territory which had been temporarily created as the colony of North Australia. It is not significant for present purposes.)

The boundaries of New South Wales at that date were defined by reference to "Our Territory of Australia or New Holland" and this territory, as I have stated, was land and did not include any adjoining open seas. The Victorian boundaries stated in the Act of 1850 were only inland boundaries to the North and North East and to the West. There was no need to state an Eastern or Southern boundary because there lay the sea. The colony was thus defined in terms of its land mass.

The boundaries of New South Wales were re-stated in the New South Wales Constitution Act of 1855:

For the Purpose of this Act, the Boundaries of the Colony of New South Wales shall, except as herein-after excepted, comprise all that Portion of Her Majesty's Territory of Australia or New Holland lying between the One hundred and twenty-ninth and One hundred and fifty-fourth Degrees of East Longitude and Northward of the Fortieth Degree of South Latitude, including all the Islands adjacent in the Pacific Ocean within the Latitude aforesaid, and also including Lord Howe Island save and except the Territories comprised within the Boundaries of the Province of South Australia and the Colony of Victoria, as at present established There is nothing in this language which can be read as a reference to parts of the open sea. In particular, the reference to "islands" is hardly consistent with such a reading of the section.

It should be noted that in 1863 so much of the Colony of New South Wales as is now the Northern Territory was annexed to South Australia.

Queensland was erected into a separate colony in 1859. By Letters Patent of 6th June 1859 Her Majesty "separated from our Colony of New South Wales and erected into a separate colony so much of the said Colony of New South Wales as lies northward of a line commencing on the sea coast at Point Danger" (then the southern and western land boundaries were described) "together with all and every the adjacent islands their members and appurtenances in the Pacific Ocean". I do not think that the words "members and appurtenances" are apt to include the open sea surrounding the islands. Once it is recognized that land between high and low-water mark is part of an island it may be that the words add little but in any case there does not appear any intention to do more than separate a part of the territory of New South Wales and so to erect a new colony.

In 1862 by Letters Patent so much of New South Wales as lay north of 26° South and between 141° and 138° East, "together with all and every the adjacent islands, their members and appurtenances in the Gulf of Carpentaria" was annexed to Queensland. For the same reasons as I have expressed above, this can only be read as adding land to the colony.

In 1872 "all the Islands lying and being within sixty miles of the coast" of the Colony of Queensland were annexed to and made part of the Colony.

In 1879, by authority of Letters Patent and after the passing of the Queensland Coast Islands Act of 1879 Q., the Governor of Queensland proclaimed that certain Islands described in a Schedule to the Proclamation should be annexed to and become part of the Colony of Queensland. The Schedule referred to "Certain Islands in Torres Straits and lying between the Continent of Australia and Island of New Guinea, that is to say all Islands included within a line " That line is then stated. Clearly the reference is only to the islands and not to the sea contained between the mainland and the line there described.

From this summary it appears that no description of the colonies in any case expressly included within their boundaries at 1st January 1901 any part of the adjoining open sea. It follows that references in the Constitution statutes to "the waste lands of the colony" will not as a matter of expression include any land (or sea) not included in the boundaries of the colonies.

(3) Does any part of the sea, though it be not expressly within the boundaries of a State or States, adhere to the State or States which it adjoins so that by implication or operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries?

It is to the common law that one must look in order to determine either the meaning of words used in the statutes and proclamations or the law which operates in application of the descriptions (in those statutes and proclamations) to the subject matters. Though there is a rule that the statute or other act should be construed so that it will be in conformity with international law rather than the contrary, it does not follow that words or descriptions in a proclamation or a statute should be given an extended meaning or operation because the giving of that extended meaning or operation would not contravene accepted principles of international law.

In order to discover the common law principle it is necessary to go back to that law as it developed in its place of origin, England. If, by the common law, England had included any of the seas which adjoined the land and yet were not intra fauces terrae then it would indeed be a strong argument that a colony also included such seas. But England did not in a relevant sense include those seas under the common law. If it had, the common law would have been the law which governed those seas. This would have been so irrespective of which court had jurisdiction to apply the common law in those seas.

The question is not whether the seas were part of the dominions of the King of England or of the realm, if that word be used in the sense of the dominions of that King. The question whether any open seas were part of the realm of England is over-simplified and therefore misleading for the answer depends upon the meaning given to the word "realm". If the word means all that which was within the allegiance of the King of England as of his crown of England, then the seas were within the realm. But if the word means that place where the common law extends, then the seas are outside the realm. Co. Litt. s. 439. In the construction of various statutes it has been a question in which sense the word is used.

I cannot help thinking that some confusion arises from the term "realm" being used in more than one sense. Sometimes it is used, as in the statute of Richard II, to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England extended, or was supposed to extend, over.

When it is used as synonymous with territory, I take the true meaning of the term "realm of England" to be the territory to and over which the common law of England extends - in other words, all that is within the body of any county - to the exclusion of the high seas (Reg. v. Keyn, per Cockburn C.J. [45] ).

1. 1876. 2 Ex. D. 63, at p. 197.
   1. 1876. 2 Ex. D. 63, at p. 197.

The long established principle, doubted by some of the minority in Reg. v. Keyn (see per Grove J. [46] and Brett J.A. [47] ), was that the common law never did apply upon the high seas. Lindley J., another of the minority, did not doubt the correctness of this view but held that the common law had been extended to the seas by statute [48] . Cockburn C.J. in his leading judgment among the majority showed that the common law had never extended to the seas [49] . I am satisfied that he was correct. The common law was the law which applied to all persons within England of which it was the law from time immemorial. It did not apply to persons or in places outside England unless it was made applicable by statute (e.g. to Wales by 27 Hen. VIII c. 26) or unless it, with applicable statute law, was carried abroad to lands settled as a colony. "The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except the territory of England only." Blackstone's Commentaries, 15th ed. (1809), vol. 1, p. 93.

1. (1876) 2 Ex. D., at p. 115. 2. (1876) 2 Ex. D., at p. 144. 3. (1876) 2 Ex. D., at pp. 92, 96. 4. (1876) 2 Ex. D., at p. 163.

Within England the King was sovereign under the common law. England for this purpose was that land and those waters intra fauces terrae within the counties of England. It thus included inland waters even though the principles for determining what were inland waters were not conclusively settled. It included the foreshore (down to low-water mark) of counties which had a seaboard. It included accretions to the foreshores or seashores by slow and imperceptible change.

The foreshore between high and low water and the beds of all waters intra fauces terrae over which tidal waters flowed were vested in the King as part of England, but significantly were so vested under the common law and subject thereto. Therefore they could be held under rights springing from the common law. They could be parts of manors or honours, and could therefore be the subject of tenures and estates under the English law of real property. Rights in respect of them could rise by prescription as well as by proved grant. Those rights could exist in individuals or corporations or in communities of free inhabitants.

The sea beyond was not within the counties and was not part of England under the common law, " for as to the right of the lord extending three miles beyond low-water, it is quite extravagant as a jurisdiction belonging to any manor. As between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles, but that rests upon different principles " R. v. Forty-nine Casks of Brandy [50] .

1. (1836) 3 Hag. Adm. 257, at p. 289 [166 E.R. 401, at p. 413].

Nevertheless, the seas belonged to the King, both in governorship and proprietorship. This has been stated time and time again and must be accepted. The correctness of this view was doubted by the majority in Reg. v. Keyn [51] and it is this aspect of the decision which has particularly been the subject of doubt or criticism: see, for example, Secretary of State for India v. Chelikani Rama Rao [52] . That case reaffirms the dominion and proprietorship of the Crown in the sea which it claimed, the claim by that time being probably limited to the belt within three miles of its land dominions. Carefully the Privy Council refrained from defining the extent of the sea so claimed but recognized that it was at least a three miles belt.

1. (1876) 2 Ex. D. 63. 2. (1916) L.R. 43 Ind. App., at pp. 199 et seq.; 85 L.J.P.C., at pp. 224 et seq.

The King's rights in or over the open seas adhered to him as a ius regale in right of his Crown of England. These rights adhered to him by virtue of his kingship in its national rather than its feudal aspect. The royal right was a prerogative recognized by the common law and to that extent it was part of the common law but it did not have its source in that law. His rights therein were not governed by the common law and the extent thereof was not determined by that law. So far as his rights were governed they were governed by statute, most importantly in ancient times by the Great Charters.

But since the King's claim was recognized by the common law it could be said to be a right under the common law. In De Jure Maris, attributed to Hale, it is said:

The narrow sea, adjoining to the coast of England, is part of the wast and demesnes and dominions of the king of England, whether it lie within the body of any county or not.

This is abundantly proved by that learned treatise of Master Selden called Mare Clausum; and therefore I shall say nothing therein, but refer the reader thither.

In this sea 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.

Hall in his "Essay on the Rights of the Crown in the Sea-shores of the Realm" (published in 1830) says at pp. 1-3: The British Seas, sometimes called the Four Seas, are those which encompass the coasts of England, Scotland, and Ireland. To the west they not only include the sea between Great Britain and Ireland, but extend over the Atlantic Ocean, which washes the western coasts of Ireland: this western part of our sea is subdivided; for, so much as runs between England and Ireland is called St. George's Channel, or the Irish Sea; and the sea on the west coast of Scotland is sometimes named the Caledonian, Deucaledonian, or Scottish Sea, and sometimes the North Sea. To the east we have the German Ocean, which is bounded principally by the opposite coasts of Germany, and the United Provinces (now Belgium); lastly, to the south there is the British Channel, or Sea, which runs along the French coast, and, comprehending the Bay of Biscay, ends with the northern coast of Spain.

Over the British seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world. Whatever opinions foreign nations may entertain in regard to the validity of such claim, yet the subjects of the King of England do, by the common law of the realm, acknowledge and declare it to be his ancient and indisputable right.

This dominion and ownership over the British seas, vested by our law in the King, is not confined to the mere usufruct of the water, and the maritime jurisdiction, but it includes the very fundum or soil at the bottom of the sea. "The sea is the King's proper inheritance," (Dav. Rep. 57. Callis on Sewers, 39, 41) and he is "Lord of the Great Waste," both land and water; "tam aquæ quam soli." Selden, in his celebrated treatise on the Dominion of the Seas (Mare Clausum, Lib. 2 Ch. 22 and 24), would seem to contemplate this ownership of the King, as combining both jurisdiction and ownership; the one, indeed, would seem to involve the other, if Selden's doctrine to its full extent be admitted.

There are eminent writers upon natural and upon national law, who have controverted Selden's doctrines, and have denied the King of England's exclusive dominion, and consequently his ownership over the British seas; but however this may be, and probably will ever continue, vexata quæstio between such writers, we know that the writers on the common and municipal law of England, as well as the decisions of our judicial courts, all speak the same language, and appropriate the dominion of the British seas tam aquæ quam soli, to the King.

Why, then, did the right to the seas adhere to the King in right of his Crown of England? It was because that King asserted an excellence and pre-eminence over other sovereigns. The breadth or width of his assertion from time to time depended on high politics and it varied from time to time depending on considerations of power and of expediency. The history of its changes lies not in legal history but in political history. The King in right of his English Crown at one time claimed the narrow seas between England and the continent of Europe. He claimed those seas right up to the opposite land's edge. He at another time claimed the Four Seas which washed the shores of the British Isles and the claim extended at times even as far as the Americas. He would not recognize the sovereign rights therein of any other, not the King of Scotland nor the Lords Marcher of Wales nor the Lords of Ireland (King John took the title Dominus Hiberniae and Henry VIII the title, King of Ireland), nor the sovereigns of Europe. Even after France was lost at the end of the Hundred Years War, the King of England maintained his claim to the seas up to the coast of France. But at one stage he did recognize that the King of Spain had sovereignty in the sea off the coast of Spain.

"The sea is of the ligeance of the King as of his crown of England " 6 R. II Fitz. Protect. 46. See Case of the Banne Fishery [53] where this statement is applied to the seas of Ireland which was not only outside the common law but had its own Parliament (though from an early time the English Parliament was sovereign thereover). In that case it is also said that the sea is the King's proper inheritance and that for that reason before the statute of (1344) 18 Edw. III c. 3 no subject could pass over the sea without the King's special licence; but that there it is enacted that the sea shall be open to all merchants. And it should be added that by the Magna Carta of John public rights of fishing in tidal waters were preserved. See Attorney-General (British Columbia) v. Attorney-General (Canada) [54] .

1. (1610) Davies Rep. 149, at p. 152. 2. [1914] A.C. 153, at pp. 170-171.

It is important to note that what the King claimed, he claimed in right of his English Crown. Not in right of the French Crown which he long claimed nor in right of the Scottish Crown which descended to him nor by virtue of his overlordship of Man nor as Lord, later King, of Ireland, nor at a later time as Elector of Hanover nor earlier as Duke of Normandy or Count of Anjou.

When the King claimed overseas dominion or lordship of the seas and made his claims as King of England, the common law of England recognized those claims. As they were made in right of his English Crown, the common law regarded them as made by virtue of his prerogative as King of England. But when he claimed France he claimed it as the lawful King of that country. His claim would likewise be recognized by the common law but his claim was not a claim by virtue of his prerogative as King of England.

Moreover, no subject of that Crown could claim sovereignty over any part of the globe in his own right, unless that sovereignty was bestowed on him by a sovereign power recognized by the English Crown and the new sovereignty was recognized by the English Crown. Unless under another sovereign, a subject of the English Crown could not own land except of that Crown because, if he could, he would be sovereign of that land; and that he could not be.

The colonies, both in the First and the Second British Empires, were colonies of the King in right of his English and, later, United Kingdom Crown. At the same time, the King claimed the seas as being within his allegiance and his proper inheritance. When, therefore, the King created a colony and appointed a governor thereof can it be implied that some part of the open sea adjoining the land was included in the colony? If so, that sea was governed by the common law, which the settlers took with them as part of the law of England. The rights of the King and his governor in that part of the colony consisting of the open seas would be rights under the common law. If the King in his body politic and if his subjects of England were governed by the common law only upon the land and on waters intra fauces terrae, there is no place for an implication that those subjects, when under the King they settled a new colony, took the common law beyond the land and to some part of the sea adjoining the colony. If it were so, the King would have the prerogative of establishing new courts to apply the common law not only upon the land of the colony but on its adjoining sea as well. But the King had already and anciently exercised the prerogative to create the jurisdiction of the Lord High Admiral and this had been recognized and defined by statute. A statute would be required in order to supersede this jurisdiction as indeed it was when the Supreme Courts of New South Wales and Van Diemen's Land by 9 Geo. IV c. 83, s. 4 were given a jurisdiction to try offences under Imperial Law committed on the seas and certain other places. See per Barwick C.J. in Reg. v. Bull [55] .

Whether the boundaries of the colony be proclaimed by letters patent or delineated by statute, far from there being an implication that some part of the sea was intended to be included, the implication must be to the contrary. However, it should be noted that the colony, like England, will include the waters intra fauces terrae and the seashore between high and low-water mark and the accretions thereto by slow and imperceptible change: Attorney-General (Southern Nigeria) v. John Holt and Co. (Liverpool) Ltd. [56] .

Nor could there be any rule of law operating to bring within the boundaries of a colony, defined by letters patent or by statute or otherwise, a part of the seas which did not expressly or by implication fall within the boundaries so defined. The same reasons which prevent the words used being taken by implication to include the open sea preclude such a rule of law.

It is therefore not to the point to say that the Imperial Crown had, by the time the Australian colonies were founded and by the time the various letters patent and Imperial statutes were made or passed, limited its claim to the open seas to the three mile strip of sea adjoining its various dominions. That did not change the common law even though the change might need to be recognized by the common law in its recognition of the King's prerogative to claim such part or parts of the world's oceans as he saw fit and to withdraw such a claim.

It will be apparent from what I have written that I regard Reg. v. Keyn [57] as correct in result. To describe it as a case concerned with the respective extents of jurisdiction of the common law courts and the court of Admiralty is not to diminish the importance of the decision but to emphasize its essential importance in the present context. The courts of common law had no jurisdiction because the common law did not extend to regulate the rights and obligations of persons beyond the boundaries of the counties. The law (other than statute law) governing the rights and obligations of persons and things upon the sea was the English maritime law in content substantially the same as the common maritime law (unless any statute provided otherwise): The Gaetano and Maria [58] ; The Tojo Maru [59] . The jurisdiction of the Lord High Admiral extended to those persons matters and things which under the maritime law could be subject to or determined by his court. The criminal jurisdiction under the maritime law did not extend to the acts of foreigners on a foreign ship in a place where the maritime law was the applicable law. Whether or not the seas are described as outside the realm depends not on the extent of the realm but on the meaning given to the word, as I have earlier said, and in Reg. v. Keyn [57] the question was the meaning of that word in the Statutes of Richard II. It was not strictly necessary to decide in Reg. v. Keyn whether the Crown of England owned the sea or any part thereof below low-water mark and not infra fauces terrae. The important point was that the common law did not extend there.

1. (1876) 2 Ex. D. 63. 2. (1882) 7 P.D. 137, at p. 143. 3. [1972] A.C. 242. 4. (1876) 2 Ex. D. 63.

What is further submitted is that when a colony was made self-governing or at least when responsible government was introduced, the prerogative of the King manifested by his claim to the sea or a part thereof in right of his Crown of England or of the United Kingdom was transferred in some way to his prerogative in right of his Crown in the colony.

The question whether, when the prerogative is exercisable in respect of particular territory by some one other than the King in right of his English Crown, that prerogative may be exercised by that other over some part of the sea adjoining the territory was posed and answered as long ago as 1622 by Callis, "the famous and learned Robert Callis Esq:" as he was thereafter for centuries described, in his reading on the Statute of Sewers 23 Hen. VIII c. 5. The prerogative of the King to maintain and protect the coastal lands against inundations was replaced or reinforced by that Statute and the work so far as the Statute extended was entrusted to the Commission. Callis's first lecture dealt with the law of the seashore and the adjoining sea in order to determine how far the Statute extended. He took as an example the supposed case of an island which formed by sudden effluxion of the sea off the coast of the County Palatine of Chester. The Prince of the County Palatine, he said, is not only owner of the county but Lord of the prerogatives there.

The Prince hath not onely Jura Regalia, but also Escheta Regalia within his said Palatinate, and so in my opinion is not onely owner of the County, but Lord of the Prerogatives there, and all Jurisdiction is to the Prince, onely a Writ of Error lieth in the King's Bench of a Judgment there, like an Appeal to Caesar, then he is Lord of those Laws by which the Freehold and Inheritance of those lands be ruled, wherefore then should not these lands belong to his Grace? But Callis concludes that the newly formed lands would not pass into the ownership of the Prince by his prerogative because "the County Palatine vested in the Prince, is prescribed within no other bounds than the word County doth confine it" and "no increase of the new left grounds can possibly become within the County of the City of Chester; for the bounds thereof cannot extend over that circle which their Charter hath confined them to: and so for the causes and reasons formerly declared, I take it, that the said Island is the Kings "

It should be noted that Callis would have the realm of England as referred to in the Statute of Sewers extend over the seas to an undefined extent but this aspect of his thesis is related to the different meanings which may be given to the word "realm" as I have explained earlier, and does not impinge upon his analysis of the principle that a grant or delegation of the iura regalia cannot extend beyond the boundaries of the grant.

Not only is there no basis in English legal theory for the view that the seas adjoining the Australian colonies came to be held by the Crown in right of those colonies and not in right of the United Kingdom, but also in practical effect such a view is untenable. The claim of the Crown to the sea is an assertion of sovereignty. It may or may not be recognized by the rules of international law currently accepted as the law of nations. It happens that a three-mile limit came during the nineteenth century to be recognized among the great majority of the great powers but it was not universally accepted. See Attorney-General (British Columbia) v. Attorney-General (Canada) [60] . Nor was it agreed that a sovereign state owned the seas in the same way as it owned the land. It has never been so agreed. The right of innocent passage denies that proposition. And it may now be asked - could the Crown in right of a colony deny innocent passage to foreign ships in the adjoining seas? The answer must be negative. Yet the Imperial Crown could do so by virtue of its prerogative. The repercussions among nations could be very serious. They were serious enough when the Territorial Waters Jurisdiction Act, 1878 Imp. was passed and would have been equally serious if the act done in relation to the sea had not been the passing of a statute but had been a prerogative act or even if the prerogative assertion had been made. But the legality of the act would not have been cognizable by any municipal court. The international law, whatever it was, on the extent of territorial seas was and is no part of municipal law as a majority of the judges in Reg. v. Keyn [61] made clear. Yet it is said that the prerogative of the Crown in respect of adjoining seas adhered to the Crown in right of a colony provided that the Crown did not break the rules of international law. I do not understand such a concept, when those rules are not part of any municipal law. And, this being so, how did the prerogative come to divide between the Imperial Crown which could refuse to recognize or obey a rule of international law and the Crown in right of the colony which could not so refuse? I can see no way. It was argued that because the prerogatives of the Crown in the colony, even those of a proprietary nature, became vested in the Crown in right of the colony on the grant of responsible government (Williams v. Attorney-General (N.S.W.) [61a] ) then, even though the sea and its bed be not part of the colony, the prerogative right thereto nevertheless became vested in the Crown in right of the colony. The argument involves an obvious non sequitur.

1. [1914] A.C., at p. 174. 2. (1876) 2 Ex. D. 63. 3. (1913) 16 C.L.R. 404, at pp. 442, 448-456.

I now come to the argument that because a colony could make laws which had effect and could be enforced upon the seas bordering that colony therefore those seas were within the boundaries of the colony. There can be no doubt that during the nineteenth century the rule of international law which the Imperial Crown came to recognize as that to which it would subscribe was that the territorial waters of a sovereign state in the usual case extended a distance of three miles from the low-water mark of the shore of that state. When the Crown recognized this rule of international law, it at the same time forwent its ancient claim to seas beyond those limits. The courts of law were bound to have regard to this limitation of the Crown claims where it was necessary and appropriate so to do because only what the Crown claimed in the seas was recognized by the common law. Likewise the courts would recognize a claim to jurisdiction in territorial waters by a foreign sovereign if that claim was not inconsistent with a claim of the Crown. Therefore when and so long as the Crown recognized the three-mile belt of sea as a belt within which an adjoining state could exercise jurisdiction, the courts of law on well established principle would recognize such a claim of a foreign sovereign. That was done in Carr v. Fracis Times & Co. [62] .

A result of the limitation of the Crown claim to a three-mile belt of territorial sea was that a colonial legislature was regarded by the law officers of the Crown (and very many examples have been cited to us) as having a power to make laws taking effect within but not beyond those limits. Now it is said that because colonial legislatures legislated in respect of the seas within these limits (with the approval of the law officers in their advices and therefore with no disallowance of the legislation) and because a colonial legislature could not pass extra-territorial legislation, therefore the adjoining seas must have been within the territory of the colonies. Stephen J. had occasion to refer in Reg. v. Bull [63] to the limits of colonial legislative power and I agree with his account thereof where he adopted, as I would now adopt, the statement of Barwick C.J. in Bonser v. La Macchia [64] :

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. 1. (1974) 131 C.L.R. 203, at pp. 270-271. 2. (1969) 122 C.L.R. 177, at p. 189.

The argument, therefore, based on the limit of colonial legislative power, does not avail the States. The exercise of legislative power and the exercise of powers pursuant to legislative authority have been exemplified to us in great numbers but they are no more than examples of the exercise of the colonial legislative or executive powers on the principle enunciated by Barwick C.J. in the passage quoted. Whether or not they were all within that principle does not now fall to be determined.

I therefore answer my third question by stating that no part of the sea adheres to the State or States of the Commonwealth which it adjoins so that by implication or by operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries. And I turn now to my fourth question -

(4) Does a declaration by Australia that it has sovereignty or sovereign rights among the nations over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same powers as it has over the territory expressly comprised within its boundaries?

The argument presented on this question depended upon the proposition that the boundaries of the respective States were co-extensive with the area in respect of which under the currently accepted law of nations laws for the government thereof could be made. The proposition is inconsistent with the reasoning upon which I have answered the last question and I therefore do not repeat the reasons which lead me to deny this proposition. No answer to any of the questions raised in these cases can, in my opinion, be found in the law of nations where that law is not a part of the municipal law.

But there is an associated approach which, although it was not put, needs to be considered. Can it be that when Australia expands by establishing sovereignty either by international assent or by national claim over an area adjacent to the boundaries of a State, the federal nature of our system of government likewise expands so that the area of new sovereignty becomes incorporated into the federal structure? It is a novel question but the answer cannot be that the boundaries of the various States expand. What happens in my view is that the limits within which it is proper for States to pass laws having an extra-territorial operation, limits to which I shall have occasion hereafter to refer, expand, so that laws which would not otherwise be for the peace and welfare and good government of a State may become so by virtue of the sovereignty of Australia in the seas within the extended area. However, any such laws will not be valid to the extent that they are inconsistent with a valid Commonwealth law. And that brings me to the last question -

(5) Is it within the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or sovereign rights over an area of the sea outside the boundaries of the States where that sea is not territory of the Commonwealth within the meaning of s. 122 of the Constitution?

The Act discloses no intention to acquire the territorial seas and the rights in the continental shelf as territory of the Commonwealth. Nor does the Act purport to make the Conventions part of the law of the Commonwealth or to implement treaty obligations in the manner dealt with in R. v. Burgess; Ex parte Henry [65] . It seems clear that on the interpretation which I have adopted of s. 6 and s. 10 the Act goes beyond the Conventions at least in so far as it provides how sovereignty shall be exercised in the relevant areas and perhaps in that it does not enact the limitations on the exercise of sovereignty and sovereign rights which are contained in the two Conventions. The scope of the external affairs power, as it fell to be considered in that case, therefore does not arise in the present case.

It has been submitted that the words "external affairs" in s. 51 (xxix.) do not comprehend every external affair but are intended "simply to bring within power British Imperial (now Commonwealth of Nations) Affairs as well as Foreign Affairs". As I understand the submission, by "Imperial Affairs" and "Foreign Affairs" are here meant relationships with other parts of the Empire (Commonwealth of Nations) or other countries which are reflected in some dealing with them or attitude or stance taken towards them. It is therefore submitted that laws made with respect to external affairs do not comprehend all laws operating upon persons or things beyond the boundaries of the Commonwealth; that the source of power to make such laws must be found in other particular subject matters of legislative power.

In my opinion the Commonwealth has the power to make laws in respect of any person or place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth.

The power to make laws in respect of any place outside and any matter or thing done or to be done outside the boundaries of the Commonwealth is clearly not vested in the States. It is in my view now vested in the Australian Crown by virtue of the external affairs power.

The words "external affairs" must be given their ordinary meaning. It is true that the operation of the power may have been limited in 1900 by the concept that Australia, lacking sovereignty, could legislate only for its territory; but that limitation, if it existed, did not alter the meaning of the words. It is not a sufficient reason for reading down the meaning of these words that there are other provisions of the Constitution, e.g. s. 51 (xxx.), which expressly confer power to legislate with extra-territorial effect or which, e.g. s. 51 (x.), may place a particular limitation in favour of the States on the power to legislate extra-territorially.

The express power of the Australian Crown to make laws with respect to places outside, or matters or things done outside the boundaries of the Commonwealth is no more fettered by notions of extra-territoriality than is the power possessed by the British Crown. That power attached to the British Crown by virtue of the pre-eminence and excellence which it claimed and which, even though there be limitations imposed by the common law itself as well as by statute on its exercise by the Crown in Council, is wholly without limit when exercised by the Crown in Parliament. Hence sprang the sovereignty of the British Parliament at Westminster and it followed that no statute of that Parliament could be held invalid on any ground whatsoever, even if it invaded the rights of the Crown or of the subject under the common law, even if it operated extra-territorially and even if it violated international law.

Clearly the Crown in the Australian Executive Council and in the Australian Parliament has one bound which the British Parliament has not, for it cannot transgress the Constitution. But subject to that Constitution it in Council and in Parliament has that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament. Exactly when it attained those qualities is a matter of the constitutional history of the British Commonwealth of Nations largely reflected in the Imperial Conferences following the Great War. Legal recognition came through the Statute of Westminster, 1931 and its later adoption by Australia. Now the Constitution is the only limitation. There is no gap in the constitutional framework. Every power right and authority of the British Crown is vested in and exercisable by the Crown in Australia subject only to the Constitution. The State legislatures do not have that sovereignty which the British legislature and now the Australian legislature possess. A State can only legislate in respect of persons acts matters and things which have a relevant territorial connexion with the State, a connexion not too remote to entitle the law to the description of a law for the peace welfare and good government of the State. See Johnson v. Commissioner of Stamp Duties [66] . The words of s. 51 of the Constitution do not import any similar territorial limitation and there now is none in the case of the Australian legislature. The words "external affairs" can now be given an operation unaffected by any concept of territorial limitation. The result is that the Commonwealth, outside the boundaries of the States and subject to any particular constitutional injunctions, may make laws on all subject matters in exercise of its sovereignty.

The six States have brought separate suits against Australia, claiming a declaration that the Seas and Submerged Lands Act 1973 is invalid. They have claimed in particular, or as an alternative, a declaration that certain sections are invalid either absolutely or in relation to certain areas or waters.

It is "an Act Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to Sovereign Rights in respect of the Continental Shelf and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from the Continental Shelf". Although this long title refers to the recovery of minerals other than petroleum, any operative provisions dealing with this subject were deleted from the legislation.

The preamble recites that a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over that sea and its bed and subsoil are within the sovereignty of Australia; that "Australia as a coastal state, has sovereign rights in respect of the continental shelf (that is to say, the seabed and subsoil of certain submarine areas adjacent to its coast but outside of the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources"; and that Australia is a party to two conventions (copies of which are set out in the schedule), the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental Shelf.

In Pt I, Preliminary, "continental shelf" is given the same meaning as in the Convention on the Continental Shelf, unless the contrary intention appears. Section 3(2) states that references to the territorial sea are to it "so far as it extends from time to time". Section 3(3) provides similarly for the continental shelf. Sections 6 and 7 follow:

6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth.

(1) The Governor-General may, from time to time, by Proclamation, declare, not inconsistently with Section II of Part I of the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea.

(2) For the purposes of such a Proclamation, the Governor-General may, in particular, determine either or both of the following: -

(b) the baseline from which the breadth of the territorial sea, or of any part of the territorial sea, is to be measured.

Section 8 empowers the Governor-General to declare historic bays and waters and define their seaward limits.

that sovereignty in respect of internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth. and by s. 11 - that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purposes of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

Section 12 enables the Governor-General to declare (not inconsistently with the Convention on the Continental Shelf or any relevant agreement to which Australia is a party) the limits of the whole or any part of the continental shelf of Australia.

Division 3 (Savings) provides that nothing in Pt II affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and were on 1st January 1901 within the limits of a State and remain so or in respect of the airspace over, or of the seabed or subsoil beneath, any such waters.

Section 15 provides that nothing in Pt II shall be taken to vest in the Crown in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works; and s. 16 provides that Pt II is not to limit or exclude other laws of the Commonwealth or a Territory or any State law, or (except so far as it was expressed) to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided in Pt II.

In international law, the rights in regard to territorial sea, seabed, subsoil, continental shelf and contiguous zone which are disputed in this case, are clearly the attributes of an international personality (see H. Lauterpacht, Sovereignty over Submarine Areas, British Year Book of International Law (1950), p. 376). Whatever their nature, whatever their limits may be or may be altered to, they remain attributes of that personality. In this case, it is clear that the relevant international personality is Australia. It is "the State" for international purposes. The six States of Australia have no standing under international law and are not recognized by it. In international law, they simply do not exist.

During the last three decades, the international law of the sea has evolved rapidly (see Lay, Churchill and others, New Directions in the Law of the Sea (1973), vols I-III (British Institute of International and Comparative Law)). This has resulted from the large number of new states, the abandoning of outdated concepts and the emergence of concepts new to international law, such as the continental shelf, the exclusive economic zones beyond the territorial sea, and the 200 mile patrimonial sea (see The Declaration of Santo Domingo Conference (1972), and the General Report of the African States Regional Seminar (1972)). New coastal states have challenged the traditional concepts of freedom of the seas. As a result, there has been a rapid change from an almost universal acceptance of a three-mile territorial sea to a general acceptance of a greater width. Many states claim twelve miles and a few claim greater widths.

Although the act of delimitation of sea areas "is necessarily a unilateral act", "the validity of the delineation with regard to other States depends upon international law" (Anglo-Norwegian Fisheries Case [67] ). And, once the low-water mark is passed, the international domain is reached (United States v. California [68] ; Reg. v. Keyn [69] ). The extent of territorial waters may be declared within the limits accepted by international law. The various limits declared appear in the National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, the Continental Shelf, the High Seas and to Fishing and Conservation of the Living Resources of the Sea, United Nations Legislative Series, ST/Leg/Ser.B/15, (1970) and National Legislation and Treaties Relating to the Law of the Sea, United Nations Legislative Series, ST/Leg/Ser.B/16, (1974).

1. [1951] I.C.J. Rep. 116, at pp. 125, 132. 2. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 3. (1876) 2 Ex. D. 63.

The legal doctrine of the continental shelf was not mooted until 1945 (see Abu Dhabi Case [70] ), although the expression "continental shelf" was first used by a geographer in 1898. It is that part of the continental mass temporarily (measured in geological time) overlapped by the oceans. The first important formulation of it as a legal concept was in the Truman Proclamation of 28th September 1945 (see C. H. M. Waldock The Legal Claims to the Continental Shelf, Problems of Public and Private International Law, vol. 36 (1950), p. 115.

Advancing technology has revealed new uses of the sea and caused greater activity in already established uses. This, together with the challenges of the new states, has made the existing rules of the law of the sea either obsolete or inadequate and a restatement of the law of the sea necessary. The views of older writers and authorities stressed in argument in this case are now largely irrelevant. Recent writers have referred to "the disintegration" of this body of the law (see Yates & Young, Limits to National Jurisdiction over the Sea, University of Virginia Press (1974)).

The most dominant trend is the claim of states for larger and larger areas of the sea in order to exercise exclusive national jurisdiction for a greater number of purposes. Competing with this is the claim for collective international exploitation of the marine and submarine resources.

The developing law of the sea has involved an enormous range of subjects which have formed part of intense international discussion and disputation at continuing United Nations conferences on the law of the sea. These subjects include the proposed international regime for the ocean floor, exclusive fishing zones, conservation zones, innocent passage and other rights to transit, scientific research, control of pollution, zones of peace and security, slavery, terrorism and drug trafficking on the seas. International agreements have been reached on many of these and provide in some cases for observation and enforcement of international rules of the sea.

The areas of general agreement on the subjects of ownership of territorial seas, rights to the seabed and subsoil under these seas, and to the continental shelves and contiguous zones are reflected in the two important conventions held in 1958 on the Territorial Sea and the Contiguous Zone, and on the Continental Shelf, which are referred to in the Act.

The States contended that the Act was not authorized by any legislative power. I will deal with this contention under the headings, External Affairs, and Other Powers in s. 51.

An exhaustive definition of external affairs is not necessary for this case and is perhaps not possible. External affairs extend over a whole range of economic, social and political subjects of international concern, some of which were probably not conceivable at the time of Federation; they are generally, but not necessarily, of international concern and include but are not limited to the subject matters of treaties and conventions to which Australia is a party, and to the affairs of international bodies (such as the United Nations Organization) of which Australia is a member.

External affairs may also be internal affairs; they are not mutually exclusive. For example, control of traffic in drugs of dependence, diplomatic immunity, preservation of endangered species and preservation of human rights may be external affairs as well as internal.

External affairs are conducted under the executive power contained in s. 61 of the Constitution. Discussion and negotiation of treaties and other arrangements on a wide range of subjects is the daily business of the Australian Government, generally through the Department of Foreign Affairs, but increasingly through other departments of State as Australia's internal affairs become more and more involved with those of other countries. This reflects the impracticability of dealing with many aspects of Australia's internal affairs, for example, minerals and energy, primary industry, environment and general management of the economy, other than in the context of international arrangements.

The Parliament has power, subject to the Constitution, to make laws with respect to "external affairs". The power authorizes, but is not limited to, the making of laws for implementation of treaties or conventions to which Australia is a party. From these, benefits flow to Australia either directly or as part of the community of nations. Under these, Australia has often assumed obligations which can only be implemented by legislation. The practical experience of our Constitution is that this can only be done effectively by the national Parliament.

When legislation based on the external affairs power is considered, the presumption of validity should be applied as with other enactments. The use of the external affairs power may be novel, but this is no excuse for adopting a narrow, cautious or suspicious approach to Acts which are said to be supported on that power. The Constitution, particularly s. 51 (xxix.), is intended to enable Australia to carry out its functions as an international person, fulfilling its international obligations and acting effectively as a member of the community of nations. If not, Australia would be an international cripple unable to participate fully in the emerging world order.

The Act deals directly with aspects of external affairs and is particularly directed towards the carrying out of the provisions of the two Conventions. It was suggested that the Act departs from the Conventions. If it does, it is still on subjects of external affairs. If there were no such Conventions, an Act in substance the same as this would still be a law with respect to external affairs.

The Seas and Submerged Lands Act is thus within the scope of the legislative power conferred on the Parliament by s. 51 (xxix.) to make laws with respect to external affairs.

The Act may also be supported in various aspects by a number of other powers in s. 51, such as trade and commerce with other countries in (i.), defence in (vi.), and measures in (xv.) and matters incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth in (xxxix.).

Apart from contending that the legislation was not authorized by any legislative power, the States also contended that, immediately before federation in 1901, (i) each of the former colonies possessed its own territorial sea; (ii) the territorial sea was included in its territorial limits; (iii) the jurisdiction of the legislature was the same over the terriorial sea as over the mainland; (iv) the Crown in right of the colony owned the seabed and subsoil of the territorial sea, just as it owned the land, where not otherwise appropriate.

They argued that, on federation, the colonies brought with them their land and maritime territory. The territorial limits of the Commonwealth, like those of the colonies, included the territorial sea. The Commonwealth Executive, Legislature and Judiciary possessed the same powers in respect of the maritime territory as in respect of the land territory.

For these propositions, the States relied on Robtelmes v. Brenan [71] ; Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. [72] ; Merchant Service Guild of Australasia v. Commonwealth Steamship Owners Association [73] ; Kingston v. Gadd [74] ; Peninsular & Oriental Steam Navigation Co. v. Kingston [75] ; Commissioner of Taxation v. Cam & Sons [76] ; D. v. Commissioner of Taxes [77] ; and William Holyman & Sons Pty. Ltd. v. Eyles [78] . Similar arguments were advanced in regard to the continental shelf.

1. (1906) 4 C.L.R. 395. 2. (1908) 5 C.L.R. 737. 3. (1913) 16 C.L.R. 664. 4. (1920) 27 V.L.R. 417. 5. [1903] A.C. 471. 6. (1936) 36 S.R. (N.S.W.) 544. 7. [1941] Q.S.R. 218. 8. [1947] Tas. S.R. 11.

Essentially, their claims are based on continuation of rights they had as colonies, together with rights which they would have had under the developing doctrines of the law of the sea.

I accept the arguments of the States that, before federation, the six colonies, in their progression towards full self government and independence, had exercised some jurisdiction over the adjacent sea, the seabed and its subsoil (in oyster and pearl fisheries and submarine mining). They were becoming involved in international agreements (for example, the International Postal Union and the Convention on Submarine Cables).

If federation had not occurred, this progression would no doubt have continued. There might now be six international personalities, each with a territorial sea (not necessarily of the same width) and each claiming territorial rights over the seabed and the continental shelf.

However, this progression towards independence and international personality ceased on federation. Each of the colonies disappeared, their peoples united in a new political entity, "an indissoluble federal Commonwealth" (Commonwealth of Australia Constitution Act). The territorial sea was attached to the entity as the attribute of an international personality along with any potential attributes, such as continental shelves or zones. Even if they had become independent nations before 1901 with the sovereign rights of an international state, on federation they would have lost the territorial seas and other attributes of international personality.

Similar issues were raised and decided between the Provinces and the Government of Canada (Reference Re Ownership of Off-Shore Mineral Rights [79] ) and between the States and the Government of the United States of America (United States v. Texas [80] , United States v. Louisiana [81] , United States v. California [82] , United States v. Maine [83] ). The contentions of both the Provinces and the States were rejected in favour of the federal Governments.

1. [1967] S.C.R. 792; (1967) 65 D.L.R. (2d) 353. 2. (1950) 339 U.S. 707 [94 Law. Ed. 1221]. 3. (1950) 339 U.S. 699 [94 Law. Ed. 1216]. 4. (1947) 332 U.S. 19 [91 Law. Ed. 1889]. 5. (1975) 420 U.S. 515 [43 Law. Ed. 2d 363].

Contentions similar to those of the plaintiffs, and the English history of the law of the sea (including the consideration of Reg. v. Keyn [84] ) were dealt with carefully by the Honourable Albert B. Maris in the U.S. Supreme Court Special Master's Report, which was adopted by that Court in United States v. Maine [85] . This report showed that the contentions of the States of the United States were groundless, and its reasoning is applicable here. In Australia, similar conclusions have been reached by individual judges (see Bonser v. La Macchia [86] and Reg. v. Bull [87] ).

1. (1876) 2 Ex. D. 63. 2. (1975) 420 U.S. 515 [43 Law. Ed. 2d 363]. 3. (1969) 122 C.L.R. 177. 4. (1974) 131 C.L.R. 203.

The States have no international personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other international persons and no right to deal with other countries, through agents or otherwise. Their claims to international personality or to sovereignty are groundless (see Bonser v. La Macchia [86] ).

The area of the territorial sea is tens of thousands of square kilometres. The area of the disputed submarine lands and subsoil is millions of square kilometres. Their resources are probably worth thousands of billions of dollars. They belong to the nation not to the States. The rights over them are vested in and exercisable by the Government of Australia on behalf of all the people of Australia.

The Seas and Submerged Lands Act 1973 is valid. The suits should be dismissed.