New South Wales v Commonwealth

New South Wales v Commonwealth - [1975] HCA 58 - HCA 1975 case summary — Zoe

[13]

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 The Act of 1842 was repealed, along with other Acts on the subject, by the Act of 1855.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.

[61]

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."

[85]

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.

[115]

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.

[116]

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.

[120]

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.

[126]

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.

[135]

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?

[138]

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.

[150]

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] :

[195]

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.

[224]

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.

[227]

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.

[292]

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.

[307]

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."

[508]

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.

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