Port MacDonnell Professional Fishermen's Assn Inc v South Australia

Port MacDonnell Professional Fishermen's Assn Inc v South Australia - [1989] HCA 49 - HCA 1988 case summary — Zoe

[70]

This "flexible" approach to the identification of coastal waters and adjacent waters (i.e. "waters adjacent to") does not lie well with the general scheme of the offshore constitutional settlement which was effected by the complex of legislative provisions of which Pt IVA formed a part. That general scheme was predicated upon the division of waters surrounding Australia into discrete areas adjacent to a State or Territory and referred to as the "adjacent area in respect of", or as "waters adjacent to", the particular State or Territory. The primary identification of those discrete adjacent areas was to be found in the Petroleum (Submerged Lands) Act which, by detailed descriptions of boundaries (Sched. 2), identified what it called the "adjacent area" of a State or Territory. As has been mentioned, the boundary adopted by the Petroleum (Submerged Lands) Act as the dividing line between the adjacent areas in respect of adjoining States (or an adjoining State and the Northern Territory) was what was seen as representing the line of equidistance. Those identified dividing lines were then taken up, by reference, in some of the legislation implementing the offshore constitutional settlement. In particular, the various Coastal Waters Acts, conferring jurisdiction and title upon the States and the Northern Territory in respect of coastal waters and the underlying seabed, defined the coastal waters of the individual States and the Northern Territory as the part or parts of the territorial sea "within the adjacent area" in respect of the State or Territory. The Coastal Waters (State Powers) Act and the Coastal Waters (Northern Territory Powers) Act 1980 Cth conferred or confirmed the legislative competence of the relevant State or the Northern Territory with respect to subterranean mining from the land and coastal works within that "adjacent area". The various Coastal Waters Acts all either directly or indirectly defined the adjacent area as "the area the boundary of which is described under the heading" referring to the relevant State or the Northern Territory in Sched. 2 to the Petroleum (Submerged Lands) Act as in force immediately before their commencement (1 January 1982). The Petroleum (Submerged Lands) Amendment Act, which commenced operation on 14 February 1983, adjusted the adjacent areas of the various States and the Northern Territory for the purposes of the Petroleum (Submerged Lands) Act by confining the areas defined in Sched. 2 to the outer limits of the continental shelf. They remained, however, discrete areas with what was treated as the line of equidistance constituting the boundary between the adjacent areas of adjoining States (or a State and the Northern Territory). The Historic Shipwrecks Amendment Act used the phrase "waters adjacent to the coast" of a State or of the Northern Territory. It defined that phrase in s. 5 as comprising "so much of the waters within" the boundaries of the area "referring to that State or Territory in Schedule 2 to the Petroleum (Submerged Lands) Act as are within the outer limit of the continental shelf of Australia". In summary and putting to one side the Fisheries Amendment Act, the Commonwealth legislation carrying the constitutional offshore settlement into effect consistently uses references to "adjacent area" and "waters adjacent" to refer to discrete areas of water identified by fixed boundaries. The outer boundary of the relevant area varies according to the purposes for which the area is being defined: the three nautical mile limit in the case of "coastal waters"; the defined outer limit in Sched. 2 to the Petroleum (Submerged Lands) Act in the case of subterranean mining from land and coastal works; the outer limit of the continental shelf in the case of the "adjacent area" or "waters adjacent" for the purposes of petroleum exploration and exploitation and historic shipwrecks. The boundary between the "adjacent" area or waters of a State or Territory and the "adjacent" area or waters of an adjoining State or Territory is, in all cases where it is specifically identified, the line of equidistance as identified in the Petroleum (Submerged Lands) Act.

[71]

The Commonwealth Fisheries Act contains nothing to indicate a legislative intent that, in contrast to the other legislation implementing the offshore settlement, references to waters "adjacent" to a State or Territory are to be understood as referring to indefinite areas which overlap the waters "adjacent" to an adjoining State. To the contrary, its provisions point in the opposite direction. The definition of coastal waters in s. 4A - "the part or parts of the territorial sea of Australia that is or are adjacent to that State or Territory" - suggests a division of the territorial sea into discrete parts. Indeed, in the context of the provision of the Coastal Waters (State Powers) Act (s. 5(a)) that a State's legislative power is to extend to its coastal waters (as defined for the purposes of that Act) as if those waters "were within the limits of the State", it is difficult to envisage how the Commonwealth Fisheries Act could sensibly treat part of such "coastal waters" as also falling within the "coastal waters" of an adjoining State for the purposes of fisheries legislation. In our opinion, the reference to the part or parts of the territorial sea that are "adjacent" to that "State or Territory" in the definition of coastal waters in s. 4A of the Commonwealth Fisheries Act must be construed as being a reference to a discrete area separated from the "coastal waters" of an adjoining State or Territory by a fixed boundary. And, that being so, the phrase "waters adjacent to a State or States" in s. 12A(2) should be construed in the same way. Thus, references to "waters adjacent to a State or States" in Pt IVA, which s. 12A(2) requires to be read as references "to the coastal waters of the State or States and waters that are adjacent to the coastal waters of the State or States", should be understood as references to areas of waters (coastal and adjacent) separated by fixed lateral boundaries. That construction, with its acceptance of consistency in the notion of "adjacent" as regards both coastal and non-coastal waters, accords with s. 12H(4), which assumes that within the three nautical mile limit the coastal waters and adjacent waters of a State correspond, in that it divides the waters "adjacent" to a State into but two categories, namely, the State's "coastal waters" and "waters on the seaward side of the coastal waters".

[81]

The provisions of s. 12H(1), (2) and (4) appear to us to be predicated upon an assumption that a State will have exclusive authority to make an arrangement with the Commonwealth in relation to a fishery within waters adjacent to it. Such an arrangement can apply either Commonwealth law or the law of the particular State for the management of that fishery. If an area of water could be "adjacent" to two adjoining States for the purposes of Pt IVA, s. 12H(1), (2) and (4) would authorize conflicting arrangements between the Commonwealth and each of those States for the management of a particular fishery within that area. Moreover, such an arrangement with one State applying the law of that State to a fishery in waters which were also adjacent to another State would conflict with a legislative intent disclosed by the provisions of s. 12H(1) and (3), namely, that where a fishery extends into waters adjacent to two or more States, any arrangement should be between the Commonwealth and those States and should provide for the application of Commonwealth law. To construe the references to "waters adjacent to" a State in s. 12H(1) and (4) as being to discrete areas of water does not necessarily involve the artificial division of a fishery between different areas for management purposes. Nor does it preclude the use of meridians of longitude to identify a particular fishery. All that it involves is the consequence that, when a fishery extends into the adjacent waters of more than one State the complete fishery can be made the subject of a single arrangement only if the States in whose adjacent waters the fishery lies are all parties to that arrangement. There is nothing particularly surprising about that consequence. Indeed, it would be somewhat surprising if the State parties to the offshore constitutional settlement intended that one State could, by arrangement with the Commonwealth alone, assume control and management of particular fishing activities extending into the coastal or adjacent waters of another State against the wishes of that other State. It is true that, where the complete fishery is managed under a single arrangement in such a case, the applicable law will be the law of the Commonwealth. That would, however, seem to accord with the legislative intent manifested by s. 12H(1) and (3).

[83]

It follows that the second arrangement could not, consistently with the provisions of s. 12H(4) of the Commonwealth Fisheries Act and s. 13(1) of the State Fisheries Act, extend to waters on the Victorian side of the line of equidistance dividing South Australian adjacent waters from Victorian adjacent waters. That does not, however, mean that the second arrangement is necessarily void. The arrangement itself identifies the area of water to which it refers as "the area of waters adjacent to the State bounded by" the identified boundary lines. Prima facie, one would read the reference to "the area of waters adjacent to the State" as having a meaning corresponding to the reference to "waters adjacent to the State" in s. 12H(4) of the Commonwealth Fisheries Act since that reference in s. 12H(4) applies - directly in the case of the Commonwealth and indirectly (through s. 13(1) of the State Fisheries Act) in the case of South Australia - to confine the statutory grant of authority to make such an arrangement. That being so, there is no difficulty in reading the second arrangement, which operates as an instrument of subordinate legislation, in a way which will preserve its validity as within authority, that is to say, as confined to the rock lobster fishery within so much of the area within the identified boundary lines as lies within the "waters adjacent to the State" for the purposes of s. 12H(4). It is unnecessary to pursue the question whether the process involved in so confining the second arrangement is better seen, in the context of the express reference to "waters adjacent to the State", as one of construing it so that it is within available power (cf., e.g., D'Emden v. Pedder [3] ; Attorney-General (Vict.) v. The Commonwealth [4] ) or as one of identifying an invalid part which can be set aside or disregarded without radically altering the nature of what remains (cf., e.g., Dunkley v. Evans [5] ; Thames Water Authority v. Elmbridge Borough Council [6] ). On either approach, the applicable principles require that the second arrangement be read as so confined.

[86]

The balance of the plaintiffs' attack upon the applicability of the State Fisheries Act to govern the rock lobster fishery relates to matters of legislative competence. In particular, the plaintiffs submit that the provision of s. 14 of the State Fisheries Act that, where there is in force an arrangement with the Commonwealth that provides that a particular fishery is to be managed in accordance with South Australian law, the provisions of the State Act apply (subject to the specified exceptions) to and in relation to that fishery, is beyond the legislative competence of the Parliament of South Australia at least to the extent that it would apply the provisions of the State Act to or in relation to so much of the rock lobster fishery identified by the second arrangement as is beyond the State's three nautical mile "coastal waters". The plaintiffs do not question that the State Act validly applies to govern fisheries within the internal waters of South Australia. Nor have they argued that, putting to one side any question of inconsistency with a law of the Commonwealth, the regulation of fisheries within the State's coastal waters is beyond the legislative competence of the Parliament of South Australia. In issue is the validity of s. 14 of the State Act in so far as it would apply the provisions of that Act to the rock lobster fishery in the Commonwealth proclaimed waters which lie outside the State's coastal waters but within the adjacent waters identified by the second arrangement. Obviously, those adjacent waters are not part of the territory of South Australia, which does not extend seaward beyond the low-water mark, except where the coastline is indented by bays or gulfs (in which case the closing lines mark the boundary) and except for Kangaroo Island which is an offshore island: Raptis (A.) & Son v. South Australia [7] . There are two bases on which the argument for valid extra-territorial operation of the State Act rests: first, that the legislative power of the State of South Australia, unaided by any power conferred by the Coastal Waters (State Powers) Act, is sufficient to give to the State Act extra-territorial operation within the arrangement area; and, second, that s. 5(c) of the Coastal Waters (State Powers) Act confers power on the Parliament of South Australia to give that extra-territorial operation to the State Act. It is convenient first to consider the legislative power of South Australia apart from the power purportedly conferred by s. 5(c) of the Coastal Waters (State Powers) Act.

[91]

Whatever constitutional theory underlay this Report, the notion that colonial fishery laws operated only within the limits of the territorial sea did not survive the observation of Lord Macmillan in Croft v. Dunphy [8] : To what distance seaward the territory of a state is to be taken as extending is a question of international law upon which their Lordships do not deem it necessary or proper to pronounce. But whatever be the limits of territorial waters in the international sense, it has long been recognized that for certain purposes, notably those of police, revenue, public health and fisheries, a state may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory. The limits of extra-territorial operation of a colonial or State law were ultimately found to inhere in the grant of power to the legislature. In Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. [9] , Windeyer J. pointed out that the terms in which legislative power had been granted to a colony or State - "peace, welfare, and good government" or "peace, order, and good government" - had become the accepted touchstone of whatever territorial limitations still existed upon the powers of subordinate legislatures in British dependencies (see Johnson v. Commissioner of Stamp Duties [10] and cases there referred to). That the requirements of peace, order, and good government provide the only limitation of the validity of any extra-territorial legislation otherwise within power has been accepted by this Court since Croft v. Dunphy (e.g. Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation [11] , per Evatt J.; Crowe v. The Commonwealth [12] , per Starke J.). Then, in Bonser v. La Macchia [13] , Barwick C.J. said: Of course, the colonies were competent to make laws which operated extra-territorially - that is to say, beyond their land margins and in and on the high seas, not limited to the three-mile belt of the territorial sea. But this legislative power of the colony was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony: Croft v. Dunphy and Broken Hill South Ltd. v. Commissioner of Taxation (N.S.W.) [14] . The Governor of the Colony of South Australia with the advice and consent of the Legislative Council was invested with power to make laws for the peace, welfare and good government of the Colony (The Australian Constitutions Act 1850 Imp (13 & 14 Vict. c. 59), s. 14) and that power is vested in the Parliament of the State of South Australia: The Constitution Act 1856 SA, s. 1; Commonwealth Constitution, s. 107; Constitution Act 1934 SA, s. 5. 1. [1933] A.C. 156, at p. 162. 2. (1959) 103 C.L.R. 256, at p. 307. 3. [1956] A.C. 331; [1957] S.R. (N.S.W.) 313. 4. (1933) 49 C.L.R. 220, at pp. 228-241. 5. (1935) 54 C.L.R. 69, at p. 85. 6. (1969) 122 C.L.R., at p. 189. 7. (1937) 56 C.L.R. 337.

[93]

My view therefore is that the legislatures of the Australian States have power to make laws about fishing at sea: but saying that does not presuppose that they have any sovereignty over the open sea or any title to the subjacent land of any part of that sea. The laws which they make must not be inconsistent with Commonwealth law. And, generally speaking, they will be read as referring only to the off-shore waters of the particular State, which are sometimes conveniently, but misleadingly, called its territorial waters: e.g., Green v. Burgess [16] ; cf. Munro v. Lombardo [17] . But this territorial restriction arises rather as a matter of construction than of power. The power of a State legislature to make laws which operate upon persons, things and events beyond the State is not limited by three miles of sea. It depends upon relationship to the State The same view was adopted in a succession of cases:Reg. v. Bull [18] , per Gibbs J.; [19] , per Stephen J.; [20] , per Mason J.; the Seas and Submerged Lands Case [21] , per Stephen J.; [22] , per Mason J.; Pearce v. Florenca [23] , per Gibbs J.; [24] , per Mason J.; Robinson v. Western Australian Museum [25] , per Mason J.; and, recently, by the Court in Union Steamship Co. of Australia Pty. Ltd. v. King [26] . Thus, in Pearce v. Florenca [23] , Gibbs J. said: As Lord Macmillan pointed out in Croft v. Dunphy, 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. 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. And in Robinson v. Western Australian Museum [25] , Mason J. referred to State laws relating to fishing and fisheries in territorial waters and beyond as "examples of laws having a valid extra-territorial operation, there being a sufficient connexion with the peace, order and good government of the State". 1. (1969) 122 C.L.R., at p. 226. 2. [1960] V.R. 158. 3. [1964] W.A.R. 63. 4. (1974) 131 C.L.R. 203, at p. 263. 5. (1974) 131 C.L.R., at p. 271. 6. (1974) 131 C.L.R., at pp. 280-281. 7. (1975) 135 C.L.R., at p. 443. 8. (1975) 135 C.L.R., at pp. 468-469. 9. (1976) 135 C.L.R. 507, at p. 520. 10. (1975) 135 C.L.R., at p. 522. 11. (1977) 138 C.L.R. 283, at p. 331. 12. (1988) 166 C.L.R. 1. 13. (1976) 135 C.L.R. 507, at p. 520. 14. (1977) 138 C.L.R. 283, at p. 331.

[114]

On 31 March 1891, Griffith referred to and expanded upon these earlier remarks in explaining the clause which was to become par. (xxxviii) (ibid., p. 524): We are aware, sir, that there are many things now upon which the legislatures and governments of the several Australian colonies may agree, and upon which they may desire to see a law established; but we are obliged, if we want that law made, to go to the Parliament of the United Kingdom, and ask them to be good enough to make the law for us; and when it is made we will obey it. I contend, for myself, as I have had an opportunity of saying before, that after the federal parliament is established anything which the legislatures of Australia want done in the way of legislation should be done within Australia, and the parliament of the commonwealth should have that power. It is not proposed by this provision to enable the parliament of the commonwealth to interfere with the state legislatures; but only, when the state legislatures agree in requesting such legislation, to pass it, so that there shall be no longer any necessity to have recourse to a parliament beyond our own shores when once this constitution has been passed by the Parliament of the United Kingdom. (Emphasis added.) In other words, the primary subject to which par. (xxxviii) was addressed was the perceived need to ensure that legislative powers necessary for the purposes of the new nation could be exercised locally notwithstanding that, prior to federation, they were beyond the competence of local legislatures. In that context, there is no valid reason why the words "within the Commonwealth" should be given a more constrictive operation than that which flows from their ordinary grammatical construction. On that ordinary grammatical construction, the words refer to the location of the exercise of legislative power of the designated kind and not to the area of operation of the laws made by the exercise of such power. It is not necessary that we decide whether "within the Commonwealth" should be construed as referring to the political structure of the federation or to the geographical place. On either construction, their effect is to introduce the notion of the local exercise of legislative power as distinct from enactment by an external legislature such as the Parliament of the United Kingdom. 1. (1988) 165 C.L.R. 360, at pp. 387-392.

[115]

In the light of the above, we turn to the identification of the overall content of the grant of power contained in s. 51(xxxviii). As the references to the United Kingdom Parliament and the Federal Council of Australasia make plain, the "power" to which the paragraph refers is legislative power. Shortly stated, the effect of s. 51(xxxviii) is to empower the Commonwealth Parliament to make laws with respect to the local exercise of any legislative power which, before federation, could not be exercised by the legislatures of the former Australian colonies. In the early days of the Constitution, there may well have been some inhibition against giving that grant of legislative power its full scope and effect in that it could have been seen as controlled by the then status of the Commonwealth itself within the British Empire. Today, any room for such inhibition has long been denied by "the silent operation of constitutional principles" in the context of complete independence and international sovereignty (see The Commonwealth v. Kreglinger & Fernau Ltd. and Bardsley [31] , per Isaacs J., quoting Cooper v. Stuart [32] , per Lord Watson (for the Privy Council)). That being so, there is no extrinsic reason why s. 51(xxxviii) should not be given the broad interpretation which befits it as a constitutional provision with a national purpose of a fundamental kind. Indeed, the reasons justifying the approach that, in the absence of some countervailing indication in the context or in the rest of the Constitution, "the Court should always lean to the broader interpretation" (see Jumbunna Coal Mine, N. L. v. Victorian Coal Miners' Association [33] , per O'Connor J.), are applicable with more than ordinary force to par. (xxxviii) for two reasons. First, that it is clear that one of the functions which par. (xxxviii) was intended to serve was that of plugging gaps which might otherwise exist in the overall plenitude of the legislative powers exercisable by Commonwealth and State Parliaments under the Constitution. Secondly, the grant of power contained in par. (xxxviii) does not represent the enhancement of Commonwealth legislative power at the cost of the diminution or potential diminution of the effectiveness of State legislative power. Indeed, the contrary is the case since one of the more obvious examples of a law with respect to the exercise within the Commonwealth of a legislative power of the kind described in par. (xxxviii) is a law providing that a particular legislative power of that kind may be exercised by a designated local legislature such as the Commonwealth Parliament itself or the Parliament (or Parliaments) of a State (or States). That being so, par. (xxxviii) can properly be seen as representing both actual and potential enhancement of State legislative powers - actual in that it confers, by implication, power upon the Parliament of a State to participate in the legislative process which the paragraph requires, namely request (or concurrence) by a State Parliament and enactment by the Commonwealth Parliament; potential in that the State Parliaments are potential recipients of legislative power under a law made pursuant to the paragraph.

[117]

Section 5(c) of the Coastal Waters (State Powers) Act does not in terms confer legislative power. It provides that the legislative powers exercisable by the States extend to the making of laws of the designated category. Its purported operation is to confirm the existence of the legislative power to make that category of law to the extent that it already existed and to confer that particular legislative power if, and to the extent that, it did not already exist. One possible broad characterization of s. 5(c) is as a law with respect to the power to make laws of the designated category. If that were the only permissible characterization of a law which, like s. 5(c), provides that a State Parliament possesses power to make laws of a designated category, the requirements of par. (xxxviii) would be satisfied only if the power to make laws of the designated category could, at the establishment of the Constitution, have been exercised only by the Parliament of the United Kingdom. To the extent that a colonial parliament had power, the power of the Parliament of the United Kingdom would not have been exclusive. That would mean that par. (xxxviii) was partially ineffective to serve its intended function of providing for the local exercise of "any" power which was previously exercisable only by the United Kingdom Parliament since it would not extend to a law which confirmed, as distinct from conferred, State legislative power. The result would be that a law enacted in accordance with the procedural requirement of par. (xxxviii) to remove doubts about the existence of a particular State legislative power could only be within that paragraph if it were first found that the particular State legislative power did not previously exist at all. The result in the present case would be that s. 5(c) was a valid exercise of the legislative power conferred by s. 51(xxxviii) if, and only to the extent that, the legislative power to which it refers goes beyond the already existing legislative powers of the State of South Australia which we have held to be adequate to support the provisions of s. 14 of the State Fisheries Act. That being so, s. 5(c) of the Coastal Waters (State Powers) Act would provide no supplementary basis in Commonwealth legislation for the provisions of s. 14 of the State Fisheries Act.

[118]

A law can, however, ordinarily be properly characterized in a number of different ways. In determining characterization for the purposes of par. (xxxviii), we may take as a starting point some relevant legislative power which could, at the establishment of the Constitution, be exercised only by the United Kingdom Parliament. If no such relevant legislative power can be identified, that will be the end of the matter. If such a relevant legislative power can be identified, the question will then arise whether the particular law can properly be characterized as a law with respect to the exercise of that legislative power. In the case of s. 5(c), there is an obviously relevant legislative power which could, at the establishment of the Constitution, be exercised only by the United Kingdom Parliament. That power is the power to control by external (in the sense of external to the relevant State Constitution) legislation the extent of the legislative powers of the States (then Colonies) under their respective Constitutions by conferring, confirming or confining State legislative power or by confirming the validity of particular State (then Colonial) laws. Some of the provisions of the Imperial Statutes 13 & 14 Vict. c. 59 (An Act for the better Government of Her Majesty's Australian Colonies) and 28 & 29 Vict. c. 63 (An Act to remove Doubts as to the Validity of Colonial Laws) provide ready examples of the exercise by the United Kingdom Parliament of that formerly exclusive legislative power. Implicit in s. 5(c) is the assumption and exercise, by the Commonwealth Parliament at the request of the State Parliaments, of that legislative power in order to confirm and, to the extent necessary, confer the particular State legislative power. That being so and in the context of the settled broad interpretation of the words "with respect to" in s. 51, s. 5(c) can properly be characterized, for the purposes of par. (xxxviii), as a law with respect to the exercise of that formerly exclusive legislative power of the United Kingdom Parliament. It follows that s. 5(c) satisfies the requirement of s. 51(xxxviii) that it be a law "with respect to [t]he exercise within the Commonwealth, at the request of the Parliaments of all the States directly concerned, of [a] power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom ". Obviously, s. 5(c) is a law for the peace, order and good government of the Commonwealth in that it provides for the enactment of laws for the management of fisheries in Australian waters. There remains for consideration the question whether the qualification in the opening words of s. 51 "subject to this Constitution" confines the grant of power in par. (xxxviii) in a way which would preclude s. 5(c) from coming within its terms.

At a glance

Court

Decision date

Before

Source

Judgment (126 paragraphs)

Parties