High Court of Australia|1976-05-14

Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 (14 May 1976)

PEARCE v. FLORENCA [1976] HCA 26; (1976) 135 CLR 507

Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4), Jacobs(5) and Murphy(6) JJ.

ORDERS TO REVIEW removed from the Supreme Court of Western Australia pursuant to the Judiciary Act 1903-1973 (Cth), s. 40.

BARWICK C.J. John Manuel Florenca was charged before a magistrate at having in his possession on a boat of which he was the skipper, at a point within one and a half miles of the coast of Western Australia, undersized rock lobsters as defined in the Fisheries Act, 1905-1975 (W.A.) ("the Act"), contrary in each case to s. 24 of the Act. (at p510)

2. The Act contains the following relevant provisions:

"3 (1) 'Western Australian waters' include the sea from

high-water mark to three nautical miles from low-water

mark, and every tidal river, and every estuary

and arm of the sea, and the waters of every river,

stream, brook, creek, swamp, lake or lagoon, notwithstanding

that the water may be impounded or that the

land covered by the water is private land alienated by

the Crown or land reserved for any purpose and vested

in any person or authority.

(2) A reference in any regulation, proclamation, notice,

order, license, or any other instrument made or issued

by or under this Act to 'crayfish' shall, unless the contrary

intention appears, be read as a reference to

'rock lobster' or 'rock lobsters', as the case requires."

"24 (1) A person who without lawful authority -

(a) has in his possession or control, or on his premises,

or in any boat, vehicle, or aircraft, any fish

(whether taken within Western Australian waters

or elsewhere);

(b) sells or causes to be sold, offers or exposes for

sale, gives or consigns any fish (whether taken

within Western Australian waters or elsewhere);

or

(c) brings into Western Australian waters or into the

State any fish,

of any of the species mentioned in the Second Schedule

to this Act, of a less length than that set opposite to

the name of that fish in that Schedule, commits an

offence." (at p511)

3. The magistrate dismissed the charges on the ground that the passage of the Seas and Submerged Lands Act 1973 (Cth) (the Seas and Submerged Lands Act) by the Parliament of the Commonwealth operated to render inoperative the Act in any area below low-water mark on the coast of Western Australia. Thereupon, the prosecutor made an application in each case for and obtained from the Supreme Court of Western Australia an order to review the dismissal by the magistrate of the charges. Subsequently, the Attorney-General for Western Australia moved this Court under s. 40 of the Judiciary Act 1903-1973 (Cth) for orders removing those orders to review into this Court, and orders were accordingly made. (at p511)

4. The question raised before this Court is whether the Seas and Submerged Lands Act does render the Act inoperative except as to waters which are inland waters: no other question arises in this matter. (at p511)

5. The Western Australian legislation was no doubt drawn on the assumption that the State of Western Australia had, as it is said, a territorial sea, in respect of which it had legislative power. This Court's recent decision as to the validity of the Seas and Submerged Lands Act (New South Wales v. The Commonwealth [1975] HCA 58; (1976) 135 CLR 337 ), has shown that assumption not to be well founded. But, quite clearly, in accordance with expressions of opinion in that and in earlier cases, the State has legislative power to make laws which touch and concern the peace, order and good government of Western Australia which are operative beyond the margins of the territory of Western Australia, and thus operative in areas of the sea not limited to the marginal seas commonly described as "territorial waters". No question arises in this case as to the validity of the Act, apart from any impact upon it which the passage of the Seas and Submerged Lands Act might have. (at p512)

6. The Seas and Submerged Lands Act proclaimed as part of the law of Australia the sovereignty of the Commonwealth in the territorial seas and submerged lands in accordance with the Conventions which are scheduled to that Act. Apart from authorizing the Governor-General to take certain actions as in ss. 7-8 and 12, the Seas and Submerged Lands Act did not purport to make any laws in pursuance of the proclaimed sovereignty. In New South Wales v. The Commonwealth [1975] HCA 58; (1976) 135 CLR 337, at p 364 , I pointed out that laws made in exercise of that sovereignty would need to be tested for their validity against the external affairs power and the terms of the two Conventions scheduled to the Seas and Submerged Lands Act. This is not the time or place to decide what laws the Commonwealth may validly make in relation to the territory of the seas and submerged lands around Australia in pursuance of that power or what their impact may be upon the laws of the States of Australia. If and when any such law is made, the question whether any inconsistency exists between that law and the Act may fall for decision. It is enough for present purposes to say that no such laws, with the exceptions to which I have referred, have been made. There is, in my opinion, no inconsistency between the existence of the power to exercise the sovereignty which the Seas and Submerged Lands Act proclaimed and the Act. I might add that s. 16 (b) of the Seas and Submerged Lands Act expressly referred to the operation of certain State legislation, the description of which, in my opinion, would include the Act. (at p512)

7. In my opinion, it is sufficient to dispose of this matter to say that the passage of the Seas and Submerged Lands Act did not itself cause the Act to cease to operate in the marginal seas washing the shores of Western Australia. In my opinion, the magistrate misconceived the effect of the passage of the Commonwealth Act. The charges should be remitted to him to be dealt with according to law. (at p512)

GIBBS J. Section 24 (1) of the Fisheries Act, 1905-1975 (W.A.) ("the Act") provides as follows:

"A person who without lawful authority -

(a) has in his possession or control, or on his premises,

or in any boat, vehicle, or aircraft, any fish (whether

taken within Western Australian waters or elsewhere);

(b) sells or causes to be sold, offers or exposes for sale,

gives or consigns any fish (whether taken within

Western Australian waters or elsewhere); or

(c) brings into Western Australian waters or into the

State any fish,

of any of the species mentioned in the Second Schedule to

this Act, of a less length than that set out opposite to the

name of that fish in that Schedule, commits an offence."

By sub-s. 3 (1) "Western Australian waters" is defined to include (inter alia) "the sea from high-water mark to three nautical miles from low water-mark". The questions that fall for decision in this appeal are whether s. 24 (1) (a), on its proper construction, makes it an offence for a person without lawful authority to have undersized fish on a boat at sea at a distance of between one and a half and two miles from the coast of Western Australia; and if so, whether it was within the power of the Legislature of Western Australia to enact a statute having that effect; and if both those questions are answered in the affirmative, whether there is any inconsistency between the provisions of s. 24 (1) (a) and those of the Seas and Submerged Lands Act 1973 (Cth). (at p513)

2. The apparent object of s. 24 is to prevent the fishing-grounds off the Western Australian coast (at least within "Western Australian waters") from being depleted as a result of the taking of undersized fish. The words of s. 24 (1) (a) are quite general, and are not expressed to be limited to "Western Australian waters". However, it could not have been the intention of the Legislature that s. 24 (1) (a) should apply to a boat in the waters of any part of the world. No doubt the section makes it immaterial in what waters the fish were caught, but that is to facilitate enforcement, for it might in many cases be difficult to prove that undersized fish, found on a boat within "Western Australian waters", had been taken within those waters. The fact that it does not matter for the purposes of the section where the fish were taken does not mean that it is of no importance where the boat was found. Some limitation must be placed on the generality of the words of s. 24 (1) (a), in accordance with the "rule of construction for confining the operation of general language in a statute to a subject matter under the effective control of the Legislature" (Barcelo v. Electrolytic Zinc Co. of Australasia Ltd. [1932] HCA 52; (1932) 48 CLR 391, at p 423 ; and see Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629, at p 640 . It would tend to defeat the object of the section if its provisions were restricted in their operation to the land territory of Western Australia and to internal waters of the kind mentioned in s. 14 of the Seas and Submerged Lands Act 1973 - bays, gulfs, estuaries, rivers, creeks, inlets, ports and harbours within State limits. It was obviously intended by the Legislature that s. 24 (1) (a) should apply to boats within "Western Australian waters" at least, and the general words of the section should not be restricted to prevent them from applying to such waters, unless to give them an operation within those waters would transcend the legislative power of the State. Section 24 (1) (a) would of course validly operate within "Western Australian waters" if the territory of a State includes the waters of the sea adjacent to the coast from low-water mark to the three-mile limit - which I shall for convenience call "the off-shore waters". However, the majority of the Court in New South Wales v. The Commonwealth ("the Seas and Submerged Lands Case") [1975] HCA 58; (1976) 135 CLR 337 were of the opinion that the off-shore waters are not part of the respective territories of the States. That is an opinion that I am not able to share but I shall assume it to be correct. On that assumption, it becomes necessary to consider whether it would be within the competence of the Legislature of the State to give the provisions of s. 24 (1) (a) an operation which would extend beyond the territorial limits of Western Australia to the off-shore waters beyond those limits. (at p514)

3. During the course of the nineteenth century the advisers to the Colonial Office formulated a principle that a colonial legislature has no power to enact laws having effect beyond the limits of the colony, and this view came to be accepted by the colonial courts (Ray v. M'Mackin [1875] VicLawRp 112; (1875) 1 VLR (L) 274, at p 280 ; Reg. v. Barton (1879) 1 QLJ (Supp) 16 ). In Macleod v. Attorney-General (N.S.W.) (1891) AC 455 the support of the Judicial Committee was given to the opinion that the jurisdiction of colonial legislatures is "confined within their own territories", but the decision of that case turned on a question of construction, rather than a question of power, and the remarks on the latter question were obiter dicta. In these early decisions it was by no means made plain on what principle this limitation of power was based. In Macleod v. Attorney-General (N.S.W.) it was indeed suggested by the remarks of Lord Halsbury L.C. (1891) AC, at pp 458-459 , that the same rule was applicable to the Imperial Legislature. His Lordship cited Jefferys v. Boosey [1854] EngR 816; (1854) 4 HLC 815, at p 926; [1854] EngR 816; (10 ER 681, at p 725) , where Parke B. said:

"... the Legislature has no power over any persons except

its own subjects, that is, persons natural-born subjects, or

resident, or whilst they are within the limits of the Kingdom.

The Legislature can impose no duties except on them; and

when legislating for the benefit of persons, must, prima facie,

be considered to mean the benefit of those who owe obedience

to our laws, and whose interests the Legislature is under

a correlative obligation to protect."

If Parke B. in that case was intending to do more than to suggest that extra-territorial legislation might be ineffectual from a practical point of view, and to lay down a rule of statutory construction, his remarks would be insupportable, for it is very clearly recognized, to use the words of Lord Macmillan in Croft v. Dunphy (1933) AC 156, at p 164 , that in English courts the legislation of the Imperial Parliament cannot be challenged as ultra vires. Of course, as was pointed out in British Columbia Electric Railway Co. Ltd. v. The King (1946) AC 527, at p 542 , a legislature which passes a law having extra-territorial operation may find that the legislation proves to be unenforceable but it does not follow that the legislation is invalid on that account. Another explanation of the principle that colonial legislatures are subject to limitations in respect of their power of enacting legislation which has an extra-territorial effect is that it derives from the fact that a colonial legislature is empowered only to legislate for the "peace, order and good government" of the colony and that those words themselves import a territorial connexion. This explanation has been so often repeated in judgments of this Court and in the Judicial Committee that it seems necessary to regard it as correct. However, to accept it raises certain logical difficulties. By s. 5 of the Colonial Laws Validity Act, 1865 (Imp.) every representative legislature was given "full power to make laws respecting the constitution, powers and procedure of such legislature" and it is difficult to see why, if the suggested limitation arises from the words of the constitution of a State, that limitation might not simply be removed, nowadays at least, by the State legislature itself amending its constitution and increasing its own powers. Moreover, the same words appear in s. 51 of the Commonwealth Constitution and they do not there appear to have a similarly restrictive effect, at any rate since the passage of the Statute of Westminster - see Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. [1959] HCA 10; (1959) 103 CLR 256, at pp 284-285, 300-301, 306-308 . (at p516)

4. The doctrine as to the limitation on the power of colonial legislatures to legislate with extra-territorial effect, as originally enunciated, proved to be too widely stated. It is misleading to refer to it as a "doctrine forbidding extra-territorial legislation"; in British Coal Corporation v. The King (1935) AC 500, at p 520 , their Lordships so described it but went on immediately to say that it is "a doctrine of somewhat obscure extent". The power of a subordinate legislature (as colonial, State and Dominion legislatures have sometimes been called) to enact legislation that takes effect beyond territorial limits was firmly established by the decision in Croft v. Dunphy (1933) AC 156 . In that case the Judicial Committee affirmed the power of the Canadian Parliament to enact anti-smuggling provisions operating beyond the territorial limits of Canada. It has been pointed out on a number of occasions in this Court that the decision in no way depended on the effect of s. 3 of the Statute of Westminster and is just as much applicable to the legislation of a colony or a State as to that of a Dominion. That case has constantly been followed. This Court, in O'Sullivan v. Dejneko [1964] HCA 13; (1964) 110 CLR 498 , upheld the validity of a New South Wales statute which imposed liabilities on a person resident in South Australia who had never been in New South Wales. In that case also the operation of the legislation held to be valid was clearly not confined within the territory of New South Wales. It is in my opinion now right to say, as Lord Uthwatt said in Wallace Brothers and Co. Ltd. v. Commissioner of Income Tax, Bombay (1948) LR 75 Ind App 86, at p 98 : "There is no rule of law that the territorial limits of a subordinate legislature define the possible scope of its legislative enactments or mark the field open to its vision." (at p516)

5. In Croft v. Dunphy their Lordships expressed the ground of their decision in the following words (1933) AC, at p 163 :

"Once it is found that a particular topic of legislation is

among those upon which the Dominion Parliament may competently

legislate as being for the peace, order and good

government of Canada or as being one of the specific subjects

enumerated in s. 91 of the British North American Act,

their Lordships see no reason to restrict the permitted scope

of such legislation by any other consideration than is applicable

to the legislation of a fully Sovereign State."

In accordance with those reasons, it is now often said that the test of validity of a State statute is simply whether it is legislation for the peace, order and good government of the State (Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. (1959) 103 CLR, at p 307 ), and that no additional restriction placed upon mere territorial considerations should be placed upon the constitutional powers of a State: Australasian Scale Co. Ltd. v. Commissioner of Taxes (Q.) [1935] HCA 23; (1935) 53 CLR 534, at pp 561-562 . However, the test whether a law is one for the peace, order and good government of the State is, as so stated, exceedingly vague and imprecise, and a rather more specific test has been adopted; it has become settled that a law is valid if it is connected, not too remotely, with the State which enacted it, or, in other words, if it operates on some circumstance which really appertains to the State. The rule was expressed in that way in Commissioner of Stamp Duties (N.S.W.) v. Millar [1932] HCA 63; (1932) 48 CLR 618, at pp 632-633 , and Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) [1937] HCA 4; (1937) 56 CLR 337, at p 375 , the judgments in which were approved by the Judicial Committee in Johnson v. Commissioner of Stamp Duties (1956) AC 331, at p 353 . In a later decision, Thompson v. Commissioner of Stamp Duties, their Lordships said (1969) 1 AC 320, at pp 335-336 :

"For the purpose of ascertaining whether there is a relevant

territorial connection the scope of possible relevancy is

wide. In Broken Hill South Ltd. v. Commissioner of Taxation

(N.S.W.) [1937] HCA 4; (1937) 56 CLR 337, at p 375 in the High Court of Australia Dixon

said: 'The power to make laws for the peace, order and good

government of a state does not enable the State Parliament

to impose by reference to some act, matter or thing occurring

outside the State a liability upon a person unconnected with

the state whether by domicil, residence or otherwise. But it

is within the competence of the state legislature to make any

fact, circumstance, occurrence or thing in or connected with

the territory the occasion of the imposition upon any person

concerned therein of a liability to taxation or of any other

liability. It is also within the competence of the legislature to

base the imposition of liability on no more than the relation

of the person to the territory. The relation may consist in

presence within the territory, residence, domicil, carrying on

business there, or even remoter connections. If a connection

exists, it is for the legislature to decide how far it should go

in the exercise of its powers.'

Nevertheless it appears from decided cases that there is no

'relevant territorial connection' if the connection with the

territory of New South Wales is too slight. There is an element

of degree involved." (at p517)

6. Even in its modern form, the rule requiring a relevant connexion between the persons or circumstances on which the legislation operates and the State is still capable of giving rise to that practical inconvenience and uncertainty to which the report of the 1929 Conference on the Operation of Dominion Legislation alluded (see the passage cited by Evatt J. in Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation [1933] HCA 32; (1933) 49 CLR 220, at p 233-234 ). For that reason it is obviously in the public interest that the test should be liberally applied, and that legislation should be held valid if there is any real connexion - even a remote or general connexion - between the subject matter of the legislation and the State. And it has been established by a series of well-known decisions, which are collected in Cobb & Co. Ltd. v. Kropp (1967) 1 AC 141, at pp 154-156 , that within their limits the legislatures of the States have powers "as plenary and as ample" as those of the Imperial Legislature itself. It would seem anomalous and unfitting that the enactments of such a legislature should be held invalid on narrow or technical grounds. (at p518)

7. For over a century it was accepted by the legislatures of the colonies and the States, and by the Imperial authorities in London, and never doubted by the courts, that the jurisdiction of those legislatures extended over the off-shore waters: see Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at pp 269-272, 280-282 , and the Seas and Submerged Lands Case [1975] HCA 58; (1976) 135 CLR 337, at pp 404-405, 441, 468-469, 494-495 . Of course, when the "misconception" that the off-shore waters were within the territorial limits of the States prevailed, this legislative jurisdiction could be explained as being intra-territorial. Since the Seas and Submerged Lands Case, a different explanation must be given. In that case I expressed the view [1975] HCA 58; (1976) 135 CLR 337, at pp 404-405 that not all of the colonial legislation taking effect in the off-shore waters could be regarded as sufficiently connected with the colony in question to be within power, assuming the legislation to be extra-territorial in operation. However, the acceptance of the views expressed by the majority in the Seas and Submerged Lands Case would require me to modify that opinion. There is nothing in that decision that makes it necessary to hold that colonial and State legislation, for so long universally treated as valid, was in truth beyond power. On the assumption that the legislation was extra-territorial, I would, with respect, accept the view expressed by Mason J. in the Seas and Submerged Lands Case [1975] HCA 58; (1976) 135 CLR 337, at pp 468-469 , that the power to make laws for the peace, order and good government of the colony was large enough to enable the colonial legislatures to enact legislation which applied to the off-shore waters. The same is true now of State legislatures. The very fact that the waters are the off-shore waters of the State provides the nexus necessary to render valid a law operating within those waters. There is an intimate connexion between the land territory of a State and its off-shore waters. Those waters have been popularly regarded as the waters of the State, and as vital to its trade. The people of the State have traditionally exploited the resources of the off-shore waters and used them for recreation. The enforcement of the laws of the State would be gravely impeded if a person could escape from the reach of the laws and the authority of the State by going below low-water mark. It does not appear that any law of a colony or State has ever been held invalid in its operation within the off-shore waters, only on the ground that it lacked sufficient connexion with the colony or the State. Legislation of a kind accepted for over a hundred years as being validly enacted is not lightly to be overturned, with consequences gravely inconvenient for the administration of the laws of the States, and in some cases with disturbance to old-established proprietary rights. When after so many years we are asked to declare for the first time that such legislation is ultra vires, we may well pause to consider what reason exists to deny the States power to enact legislation taking effect within their off-shore waters. The principle that legislation enacted by a State and operating outside its territory must be connected in some relevant way with the State if it is to be valid may have been appropriate to the so-called dependent and inferior legislatures of colonial times, but its only modern justification is that it may avoid conflicts with other rules of law applicable to the area in which the legislation is intended to operate. In this way the principle may fulfil a useful purpose in providing a touch-stone for the validity of a law enacted by one State and intended to take effect within the territory of another. But no rational purpose is served by holding that a law of a State cannot validly operate within its off-shore waters. It has now been held that those waters form part of the territory of the Commonwealth, but the Constitution itself sufficiently provides for the resolution of any conflict that may arise between a law of the Commonwealth and a law of a State: by virtue of s. 109 the former will prevail. If in the opinion of the Commonwealth Parliament a State law infringed a rule of international law relating to the off-shore waters, the Parliament could by appropriate legislation inconsistent with the State law render the latter invalid. From the point of view of the Commonwealth, no necessity exists to rely as against the States on any principle or territorial nexus; from the point of view of the States, every consideration of practical convenience requires that the power of a State to legislate in respect of its off-shore waters should be as ample as its power to legislate for its land territories. The history of the exercise of State powers in the past, the present public interest, and the reason on which the principle requiring a territorial nexus seems to rest all combine to lead to the conclusion that the fact that the persons, things or events to which the legislation of a State applies occur within the off-shore waters provides sufficient connexion with the State to render the legislation valid. (at p520)

8. As Lord Macmillan pointed out in Croft v. Dunphy (1933) AC, at p 162 , it has long been recognized that for certain purposes, including fisheries, a State may enact laws affecting the seas surrounding its coasts beyond its territorial limits. Windeyer J. expressed similar views in Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177, at pp 225-226 . Such power is not limited to off-shore waters. However, where the law does not operate beyond off-shore waters its validity is in my opinion perfectly clear. A law to regulate fishing within off-shore waters has a close connexion with the State and can truly be described as a law for the peace, order and good government of the State. Such a law is within the competence of a State legislature. (at p520)

9. The final question, whether s. 24(1)(a) is inconsistent with the Seas and Submerged Lands Act 1973, presents no difficulty. The latter Act was a mere assertion of sovereignty. It laid down no rules for the regulation of the conduct of persons within the off-shore waters and conferred no powers exercisable by any Commonwealth instrumentality within those waters. In particular it did not regulate fishing. It was not intended to affect the operation of State laws in force within the off-shore waters except to the extent indicated by s. 16(b) of the Act, that is, except in so far as the State law "is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of" Pt II of the Seas and Submerged Lands Act 1973. Section 24(1)(a) is not a law of the kind mentioned in s. 16(b). There is no inconsistency between the provisions of s. 24(1)(a) of the Act and those of the Seas and Submerged Lands Act 1973. (at p520)

10. It is perhaps unnecessary to say that no question of inconsistency between s. 24(1)(a) of the Act and the provisions of the Fisheries Act 1952 (Cth) (as amended) can arise, since the latter Act does not apply to off-shore waters adjacent to a State - Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 . (at p521)

11. It follows that the magistrate from whom this appeal was brought was wrong in holding that s. 24(1)(a) of the Act applied only to the waters described in s. 14 of the Seas and Submerged Lands Act 1973 and not to a boat at sea about one and a half or two miles from the coast of Western Australia. (at p521)

12. The appeal should be allowed and the case remitted to the magistrate. (at p521)

STEPHEN J. The facts of the case sufficiently appear in other judgments; the only question for the Court is whether the Seas and Submerged Lands Act 1973 (Cth) affects the operation of s. 24(1)(a) of the Fisheries Act, 1905-1975 (W.A.) so as to provide a defence to the respondent Florenca, who was charged with offences under that section involving his possession of under-size rock lobsters when at sea within two miles off the coast of Western Australia. (at p521)

2. In New South Wales v. The Commonwealth [1975] HCA 58; (1976) 135 CLR 337 a majority of the Court held valid the Seas and Submerged Lands Act and, in particular, s. 6 of that Act which declares and enacts that "the sovereignty in respect of the territorial sea" is vested in and exercisable by the Crown in right of the Commonwealth. However it appears to me to be clear beyond debate that neither that section nor any other provision of that Act gives rise to any inconsistency between its provisions and those of the Fisheries Act (W.A.). (at p521)

3. How then may the Seas and Submerged Land Act be said to provide any defence to the charges brought against the respondent? Unfortunately this must necessarily be very much a matter for conjecture. Despite an abundance of representation, all States and the Commonwealth having been given leave to intervene, the respondent did not appear and in the outcome there was no party concerned to contend that a good defence had been made out and to expand upon the grounds of that defence; in particular the Commonwealth did not seek to do so. (at p521)

4. From the record of the submissions made to the magistrate upon the hearing of the charges it would seem that the contention was that because sovereignty over the place where the offences were alleged to have been committed was vested in the Commonwealth it followed that the legislation of the State could no longer have any valid operation there. This, I think, was the view accepted by the magistrate and, for want of any other, must be taken to be that which would have been argued on the respondent's behalf had he been represented before this Court. (at p522)

5. Such a contention is without substance. If Australian off-shore waters are now to be regarded as outside the territory of the littoral State that State will none the less possess extra-territorial legislative power in respect of them. In Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203 and again in New South Wales v. The Commonwealth [1975] HCA 58; (1976) 135 CLR 337 I expressed my views concerning the power to legislate with extra-territorial effect. That it extends to the matters dealt with in the Fisheries Act in relation to water within two miles of the Western Australian coast cannot be in doubt. Accordingly that Act is, at least to the extent necessary to support the present charges, a valid enactment of the legislature of the State. I might add that it is also clear from the terms of the Act that it is intended to apply in the waters where the offence is charged. (at p522)

6. I would accordingly allow these appeals and remit the charges to the magistrate for determination according to law. (at p522)

MASON J. The Parliament of a State may legislate extra-territorially. The principle enunciated by the Judicial Committee in Croft v. Dunphy (1933) AC 156 with respect to the Dominion of Canada has been held to apply to the Australian colonies and to the Australian States (Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177, esp at pp 189, 202, 224-226 ; Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at pp 230-231, 263, 269-272, 280-283 ). The decision in New South Wales v. The Commonwealth [1975] HCA 58; (1976) 135 CLR 337 does not deny this proposition. In that case it was decided that the territorial boundaries of the States end at low-water mark but neither the decision nor the judgments qualify the rule that the Parliament of a State has capacity to legislate extra-territorially. Indeed, the judgments of both the majority and the minority affirm this capacity, in particular the capacity of a State Parliament to enact legislation having effect in territorial waters surrounding the State [1976] HCA 26; (1976) 135 CLR 507 esp, at pp 370-371, 468-469, 475, 495-497 . It had earlier been acknowledged in Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 that a State had power to legislate with respect to fisheries located within and without territorial waters. It is against this background that the provisions of the Fisheries Act fall to be considered. (at p522)

"A person who without lawful authority -

(a) has in his possession or control, or on his premises,

or in any boat, vehicle, or aircraft, any fish (whether

taken within Western Australian waters or elsewhere);

(b) sells or causes to be sold, offers or exposes for sale,

gives or consigns any fish (whether taken within

Western Australian waters or elsewhere); or

(c) brings into Western Australian water or into the

State any fish,

of any of the species mentioned in the Second Schedule to

this Act, of a less length than that set opposite to the name

of that fish in that Schedule, commits an offence."

The expression "Western Australian waters" is defined by s. 3 (1) to include -

"the sea from high-water mark to three nautical miles

from low water-mark, and every tidal river, and every estuary

and arm of the sea, and the waters of every river, stream,

brook, creek, swamp, lake or lagoon, notwithstanding that

the water may be impounded or that the land covered by the

water is private land alienated by the Crown or land reserved

for any purpose and vested in any person or authority." (at p523)

3. In terms s. 24 (1) (a) says nothing about the geographical location of the possession or control or of that of the premises, boat, vehicle or aircraft to which it refers. Read literally, s. 24 (1) (a) would make it an offence on the part of a foreigner without lawful authority to have on board a foreign-owned vessel at any place in the world an undersized fish of the species described caught on some fishing ground remote from Western Australia. However, the section must be read in the light of the Act as a whole and when the Act is understood in its entirety it sufficiently emerges that it is directed to the protection of fisheries in Western Australian waters. (at p523)

4. In this connexion s. 9 is important. The various powers which it confers upon the Minister to prohibit the taking of fish and marine algal life are all limited to a taking in Western Australian waters. Likewise, the Minister's power to declare what is permissible equipment for the taking of fish applies to the taking of fish in Western Australian waters (s. 10 (2) ). Consequently, s. 12 which makes it an offence to contravene a proclamation under s. 9 or s. 10 is confined in its application to the taking of fish in those waters. (at p523)

5. Again the power conferred by s. 12B to declare proclaimed fishing zones extends to waters in the State and to Western Australian waters; it does not extend beyond the outer margin of territorial waters. Accordingly, the offences created by s. 12D in respect of proclaimed fishing zones do not extend to the taking of fish beyond the outer margin of territorial waters. The provisions to which I have referred evince a legislative policy designed to protect fisheries in Western Australian waters. (at p524)

6. Section 24 (1) (a) appears to depart from this policy by speaking of fish "taken within Western Australian waters or elsewhere". But to give the section a literal application so as to penalize the possession anywhere in the world of undersized fish caught outside Western Australia would far exceed the policy to which the statute seeks to give effect. The specific departure in this subsection from the concept elsewhere expressed of penalizing the catching of undersized fish in Western Australian waters is only to be explained by the evident difficulty of relating the possession of undersized fish to their place of capture, in particular the difficulty of proving that undersized fish in the possession of the defendant were caught in Western Australian waters. To overcome this difficulty it seems that the section was so designed that the place of capture of the fish is not an element in the offence. So as to avoid the section having an extravagant operation it is necessary to read it as applying to possession or control within the State or within Western Australian waters, a limitation which likewise applies to the other acts referred to in sub-s. (1) (a). This limitation is explicit in s. 24 (1) (c) which speaks of bringing fish "into Western Australian waters or into the State". Although this limitation is not spelled out in s. 24 (1) (a) it should be read as subject to a similar geographical limitation for the reasons which I have already given. Only if it is so read does the section give expression to a uniform policy and practical means of securing compliance with the obligations imposed by the Act in respect of fishing in Western Australian waters. (at p524)

7. So construed s. 24 is unquestionably valid. This is not to say that I am of the opinion that the section would have been invalid if it had, according to its terms, a more extensive operation. I do not find it necessary or desirable, in the absence of comprehensive argument, to discuss possible limitations on the power of the Parliament of a State to enact extra-territorial legislation in the exercise of its power to make laws for the peace, order and good government of the State, in particular the question whether in order to support the validity of a State statute having an application in territorial waters surrounding the State, there needs to be shown a nexus (other than that supplied by the mere application of the law in territorial waters) between the exercise of legislative power and the State. Whether this question is of more than theoretical importance is a question which may presently be put aside. (at p524)

8. Granted the validity of the State law and its application to the facts of this case, the so-called question of inconsistency quickly disappears. Section 6 of the Seas and Submerged Lands Act 1973 merely declares that sovereignty in respect of the territorial sea, the airspace over it and its bed and subsoil is vested in and exercisable by the Crown in right of the Commonwealth. This is not to deny the existence of legislative power in the States to protect fisheries in territorial waters. Nor does it render their exercise inoperative. Unless and until the Commonwealth enacts legislation on or relating to that topic pursuant to the sovereignty asserted by s. 6 no question of inconsistency can arise. Indeed, s. 16 (b) expressly preserves the operation of State laws not inconsistent with the sovereignty declared by the Act. There was therefore no foundation for the conclusion reached by the magistrate that there is an inconsistency between the Seas and Submerged Lands Act and the State Fisheries Act. (at p525)

9. For these reasons I would allow the appeals, set aside the magistrate's finding and remit the complaints to the Court of Petty Sessions. (at p525)

JACOBS J. John Manuel Florenca was charged on two complaints by Arthur Thomas Pearce, Inspector of Fisheries in Western Australia, that being the skipper of the fishing boat "Morning Star" L.F.B.F. 126 which was then licensed as a processing establishment pursuant to the Fisheries Act, 1905-1975 (W.A.), he had on board the said boat without lawful authority fish, to wit, rock lobsters being one of the species mentioned in the Second Schedule to the said Act of a length less than that set opposite to the name of such fish in such schedule; contrary to s. 24 (1) (a) of the said Act. (at p525)

2. The evidence established that at the times to which the charges related the fishing boat was at sea one and a half to two miles from low water mark of the coast of Western Australia. The magistrate who heard the charges concluded that, since the passing of the Seas and Submerged Lands Act 1973 (Cth), the Fisheries Act, 1905-1975 was limited in its application to waters that are not included in the "territorial sea" of Australia. He found no case to answer on both charges. (at p525)

3. An order nisi to review was granted in the Supreme Court of Western Australia on 10th February 1976. The Attorney-General of Western Australia moved that this cause pending be removed into this Court pursuant to s. 40 of the Judiciary Act 1903-1973 (Cth) and the cause was thereupon removed and forthwith heard before this Court. (at p526)

4. There is nothing in the decision of this Court in New South Wales v. The Commonwealth [1975] HCA 58; (1976) 135 CLR 337 (the Seas and Submerged Lands Act Case) which required a conclusion that the Fisheries Act, 1905-1975 did not validly apply to a boat lying off the shore of Western Australia a distance of one and a half to two miles from low-water mark. Though by the Seas and Submerged Lands Act 1973 sovereignty in the seas at such a point is vested in and exercisable by the Crown in right of the Commonwealth, it does not follow that laws of the Commonwealth are the only laws which may validly operate at such a point. By s. 6 of the Act the Commonwealth has asserted the right to legislate in respect of such a place and the validity of that assertion has been upheld. Section 16 (b) of the Act makes clear the legislative intention that the provisions of the Act do not limit or exclude the operation of any law of a State in force at the date of commencement of the Act or coming into force after that date. The exception to this is so far as any law of a State is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by preceding provisions of the Act. Thus the Act asserts the power to govern exclusively but not a presently exclusive government. The Fisheries Act, 1905-1975 is not a law which falls within the exception to s. 16 (b). (at p526)

5. But it may be said that because it is now established that the sea at the presently relevant point or points is not a part of the State of Western Australia a law of that State operating at that point or those points is a law having extra-territorial operation and will only be valid if a nexus is shown between the operation of the law at that point or those points and the peace order and good government of Western Australia. Should it be necessary to show such a nexus from the particular subject matter of the legislation, it is clearly shown in the instant provision. Fishing in waters near the coast of a community is, and has always been regarded as, a matter of special concern to that community. It is not necessary to elaborate upon such an obvious proposition. That special concern would provide the nexus for legislative control of such fishing and for laws designed to give effect to that control. The control of the catching of fish is effectuated by a law which makes it an offence to have in possession or in a boat in waters to which the legislative provision is intended to apply, fish which it is forbidden to keep. The sea at the places where the offences were alleged to have taken place was in "Western Australian waters" within the meaning assigned to those words by their definition in s. 3 (1) of the Fisheries Act, 1905-1975. Section 24 (1) (a) of the Act is intended to apply not only to the State but also to Western Australian waters, as defined. This is not expressly stated but is readily to be inferred from the general subject matter of the section and from the fact that the offence created by s. 24 (1) (c) is the bringing into the State or into Western Australian waters of fish of less than the specified sizes. It would be most unlikely that the bringing of such fish into those waters would be made an offence but that having such fish in a boat on such waters was not intended to be made an offence. (at p527)

6. I would also base on a wider ground my conclusion that the Western Australian legislative provision validly applies. The waters around Australia are Australian waters. With the emergence of Australia as a nation, sovereignty in right of Australia in respect of those waters emerged in international law and could be declared in 1973 by the Australian legislature. After federation of the colonies the Australian community became one community, one nation. The fact that its internal political organization is that of a federation must never obscure that important fact. Because the waters off the coast of Western Australia are Australian waters they are at the same time Western Australian waters, waters of that part of the community of Australia which is the State of Western Australia. Both before and after the passing of the Seas and Submerged Lands Act 1973 the fact that the waters are Australian waters and the fact that this part of the waters is adjacent to the coast of Western Australia gives that State, as part of Australia, a relationship or nexus with those waters which is in itself sufficient to support the application of the law of Western Australia to those waters provided that that law is intended by the legislature of Western Australia to apply to those waters and provided that it is not inconsistent with a law of the Commonwealth itself. Both of these conditions are fulfilled in respect of s. 24 of the Fisheries Act, 1905-1975. (at p527)

7. The appeals should therefore be allowed, the findings of no cases to answer should be set aside and the charge remitted to the Western Australian Court of Petty Sessions for further hearing. (at p527)

MURPHY J. The main question here is whether there is any inconsistency (within the meaning of s. 109 of the Constitution) between s. 24 of the Fisheries Act, 1905-1975 (W.A.) and the Seas and Submerged Lands Act 1973 (Cth). (at p527)

2. If the Seas and Submerged Lands Act did not exist, there would be no reason to doubt the validity of s. 24 of the Fisheries Act when construed reasonably. The section is an exercise of extra-territorial legislative power and is valid unless some provision of the Constitution invalidates it. (at p528)

3. This case was remarkable in that it lacked the ingredient of opposing parties maintaining the opposite point of view on questions that arose. The respondent did not appear, and no argument was put on his behalf. There was powerful representation from the State of Western Australia and all other States, with the Commonwealth intervening. However, the argument barely touched the question of the effect of the vesting of sovereignty in the Commonwealth under the Seas and Submerged Lands Act. (at p528)

"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 savings clause, s. 16 (also in Pt II) provides:

"16. The preceding provisions of this Part -

...

(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." (at p528)

5. I do not accept the submission that the enjoyment of the sovereignty vested in and exercisable by the Commonwealth (s. 6) requires further legislation. This sovereignty may be exercised by the Government of the Commonwealth under s. 61 of the Constitution. The wording of s. 6 shows that its draftsmen obviously had s. 61 of the Constitution in mind. (at p528)

6. Because of the extraordinary absence of argument on the real issue in this case, I think the proper course is to act on the presumption of validity of s. 24, and to regard it as coming within the saving referred to in s. 16 of the Seas and Submerged Lands Act. (at p528)

Remit complaints to the Court of Petty Sessions of Western Australia for determination, according to law.

Fisheries Act 1952(Cth)

Submerged Lands Act 1973

Pearce v Florenca [1976] HCA 26;

At a glance

Court

Decision date

Source

Judgment (67 paragraphs)

Pearce v Florenca [1976] HCA 26; (1976) 135 CLR 507 (14 May 1976)

Parties

Legislation Cited (3)

Cases Cited (12)