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[1974] HCA 23
High Court of Australia
1974-06-11
Original judgment source is linked above.
THE QUEEN v. BULL [1974] HCA 23; (1974) 131 CLR 203
Barwick C.J.(1), McTiernan(2), Menzies(3), Gibbs(4), Stephen(5) and Mason (6) JJ.
Customs and Excise - Importation of goods - Customs offences - Goods brought within three miles of coast - Whether imported into Australia - Prohibited imports - Assembling to prevent seizure of prohibited imports - Possessing prohibited imports - Allowing ship to be used in importation of goods - Incidents occurring within three miles of Australia coast - Customs Act 1901-1974 (Cth), ss. 231, 233A, 233B.
Courts - Supreme Court of Northern Territory - Jurisdiction to hear charges under Customs Act 1901-1974 alleging acts committed within three miles of coast - Whether admiralty jurisdiction - Jurisdiction of Supreme Court of South Australia on 1st January 1911 - Northern Territory Supreme Court Act 1961-1971 (Cth), s. 15 - Judiciary Act 1903-1969 (Cth), s. 39 (2) - Supreme Court Act 1856 (S.A.), s. 7.
CASE STATED under s. 72 (3) of the Judiciary Act 1903-1969 (Cth).
BARWICK C.J. In March 1973 the vessel Mariana made a voyage from Darwin in return voyage towards Australia, the vessel was under the observation of Australian authorities concerned with the administration of the Australian customs. As the vessel neared the port of Darwin, an Australian Army helicopter co-operating with those authorities began to descend over the vessel in a fashion and to a degree well calculated to alert those on the vessel to the fact that the vessel was under close surveillance. A launch carrying customs officers was at the same time on its way from Darwin towards the vessel. It may be, particularly having regard to the subsequent actions of those on board the vessel, that the action of the helicopter indicated to them the imminence of a boarding operation by the customs. (at p207)
2. Joseph Corns was the master of the vessel: Barry Richard Bull, John Plithakis and Gregory James Conn were either crew members or passengers upon it. The vessel was carrying cannabis, procured in Bali and packed in suitcases. On the near approach of the helicopter these suitcases were jettisoned by those on board the vessel and its decks washed down so that upon the subsequent inspection of the vessel when boarded by the customs officers no cannabis was found on board. Later, in the port of Darwin, no cannabis was found upon any of the persons who had been on the vessel other than 14.8 grams of cannabis resin which was found on Gregory James Conn. However, as the vessel after being boraded was brought into port under escort, the possession within the limits of the port of this quantity of cannabis resin was not relied upon by the Crown in connexion with any of the charges subsequently laid. Some of the contents of the jettisoned suitcases, amounting to 31,000 grams of cannabis, was recovered from the sea by officers of customs. (at p208)
3. Joseph Corns, Barry Richard Bull, John Plithakis and Gregory James Conn (the accused) were thereafter indicted before the Supreme Court of the Northern Territory with having committed offences against the Customs Act 1901-1971 (Cth) (the Act). In the trial on this indictment, some of the charges were withdrawn, and upon others there was either a verdict of acquittal or no verdict at all. All four accused, however, were found guilty by the jury: 1. of importing into Australia a prohibited import, namely, cannabis, contrary to s. 233B (1)(b) of the Act; 2. of having in possession on board a ship a prohibited import, namely, cannabis, contrary to s. 233B (1)(a) of the Act; and 3. of assembling for the purpose of preventing the seizure of a prohibited import, namely, cannabis, contrary to s. 231 (1) (c) of the Act. The assembling contrary to the Act was said to have taken place on the vessel. Joseph Corns was also found guilty of knowingly allowing the vessel to be used in the importation of goods contrary to s. 233A of the Act. (at p208)
4. Having regard to the course of the trial and the verdict of the jury, the act of the accused relied upon as constituting importation of the cannabis was the act of bringing the suitcases on the vessel over a line three nautical miles from the coastline of the Northern Territory. The act of possession on which the breach of s. 233B (1)(a) was founded was possession on the vessel after it had crossed that line. Presumably the act of assembling for the purposes of s. 231 (1)(c) was the act of co-operating on the vessel in disposing of the cannabis which, again by implication from the verdict of the jury, occurred after the vessel had crossed that line. Further, it must be taken that the vessel was boarded by the customs officers after it had come within three nautical miles of the coast but yet not within the limits of the port of Darwin. (at p209)
5. Before the jury was charged, the accused requested the Judge of the Supreme Court presiding over the trial to reserve certain points of law for the consideration of a Full Bench of this Court. His Honour, however, followed the convenient course of taking the verdict of the jury with the results I have described, and thereafter postponed judgment until this Court should have answered the questions asked in a case stated by him pursuant to s. 72(3) of the Judiciary Act 1903-1969. (at p209)
6. That case is now before us. The questions asked are:
1. Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment (a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof; and (b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast?
2. If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty?
3. If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting?
4.Does the Customs Act 1901-1971 extend to the said offences (a) if they were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof; and (b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast? 5.If prohibited imports are voluntarily brought from a point outside a line
three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971? (at p209)
7. Questions asked as to any of the counts numbered 2, 4, 7, 9, 10 and 12 of the indictment being counts which were either withdrawn from the jury or in respect of which there has been a verdict of acquittal or no verdict at all, should not, in my opinion, be answered. To enable identification of those counts, I append to these reasons a numerical list of the counts in the indictment. Further, nothing in the case before the Supreme Court calls for an answer to questions 1(b),4(b),or5. Consequently, the only questions which, in my opinion, are proper now to be answered are questions 1(a), 2, 3 and 4(a). (at p210)
8. Cannabis is a narcotic drug within the meaning of s. 233B of the Act and is a substance the importation of which is prohibited by regulation made under s. 50. Thus, it can fall within the expression "prohibited import" in s. 51. Further, its importation into Australia is made unlawful and an offence by s. 233B(1)(b). I take question 1 to involve whether the acts I have detailed did amount to offences under the Customs Act. (at p210)
9. Consequently, the substantial questions which arise for decision in this case, in my opinion, are:
1. When under the Act is importation of goods into Australia effected? (at p210)
10. The competing views are: on the part of the accused, when goods are landed otherwise than duly through a proclaimed port or are brought within the limits of a port with the intention of landing them there; and, on the part of the Crown, when they are brought within three nautical miles of the coast of Australia with the intention of landing at some port or place in Australia.
2. Assuming validity, what is the geographical limitation, if any, to be implied in s. 233B(1)(a)? (at p210)
11. The opposing contentions are: on the part of the accused, that the possession to which the section relates is possession within the limits of a port or upon the land; and, on the part of the Crown, possession as well anywhere within the area bounded by a line drawn at three nautical miles of the coastline, that is to say, anywhere in "territorial waters" off the Australian coast.
3. Is the description "prohibited imports" applicable to goods which have not been imported? (at p210)
12. The accused content for a negative answer, whilst the Crown contends that the description is of a class of goods which are prohibited imports wherever they may be possessed, their importation not being essential to the satisfaction of the description.
4. Has the Supreme Court of the Northern Territory jurisdiction to try the indictment in this case? (at p210)
13. The accused submit that it has none, its common law jurisdiction being limited to offences wholly committed in the Northern Territory, any Admiralty jurisdiction which it may have being limited to offences which the Admiral could try, which none of the offences here is, and the invested federal jurisdiction derived from or through s. 15 of the Northern Territory Supreme Court Act 1961-1973 (Cth) being limited to the trial of offences against federal laws committed within the Northern Territory. That Territory by definition is limited to the land mass, not extending into the marginal sea, see s. 4, Northern Territory Acceptance Act 1910-1952 (Cth). On the other hand, the Crown contents that the jurisdiction of the Court is not so limited but extends to the trial of offences committed on the high seas or at any rate in "territorial waters" off the Australian coast, including offences against federal laws so committed, and that, in so far as it might be necessary for the support of that proposition and the Crown's submission as to importation into Australia, Australian territory extends to include the marginal sea bounded by what is conveniently referred to as the three mile limit. (at p211)
14. The case thus raises most substantial issues, all of importance. The answers to the four questions I have posed will provide the material for answering questions 1(a), 2, 3 and 4(a) of the stated case. The full details of the facts of the matter are not before us nor is the summing up of the learned trial judge. Nor are we presently concerned with the further proceedings in the Supreme Court except that they must be conducted in conformity with the answers which the Court gives to the questions posed in the stated case, and with any necessary implications therefrom. Thus the question whether there really was any evidence of persons having assembled for the purpose of preventing seizure is not before us; the actual purpose of the persons either in being on the ship or in co-operating thereon to dispose of the suitcases being a matter for investigation as well as the proximity of a threat of seizure of the goods as distinct from close surveillance or attempted identification. Further, the question whether there was evidence of an attempt to import the cannabis for which the accused should be tried is a question for the consideration of the Supreme Court. Whether or not these questions remain for consideration must depend, of course, on the outcome of the stated case: but none of these are matters with which, on this stated case, this Court, in my opinion, should concern itself. (at p211)
15. It will be convenient to deal first with the question as to when goodsare imported into Australia within the meaning of the Act. Because the power to impose a duty of customs is exclusive to the Parliament and because continental Australia and Tasmania is each an island, there can be no importation into Australia except of goods which come from overseas. Thus, unlike the case of a country with land boundaries shared with another country, e.g. the United States of America, there is no need to distinguish between importation by land and importation by sea. But, of course, the possibility of landing goods otherwise than duly through a proclaimed port must be, and in the Act has been, considered. (at p212)
16. The question is not what constitutes importation in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia. However, in general, importation of goods, in my opinion, according to the natural meaning of the words, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated. I have not found or been referred to any reported decision, with the possible exception of Brown v. Kenyon [1767] EngR 3; (1767) Burrell 30 (167 ER 457) , which casts any doubt on that general proposition. I may say as to the case that the report of the argument is more illuminating than the terms of the judgment. Giving the Court's reason full consideration, I have concluded that the seizure in that case was considered by the Judge in Vice-Admiralty to have been effected within the area of the port of New York. On that footing the result of the case is understandable. But, in any case, neither the conclusion nor the reasoning, in my opinion, affords colour to the proposition that importation takes place on the high seas. (at p212)
17. In the present case, attention was drawn in argument to a difference between s. 233(1)(b) and s. 233B(1)(b). The latter speaks of importing into Australia whereas the former contents itself with a prohibition on importing. In my opinion, there is no significance for present purposes in the difference in expression in the two provisions, though introduced into the Act at the same time. The word "import" will have the same significance in each place: and, if, as I think, it means in any case import into Australia, the words "into Australia" in s. 233B(1)(b) add nothing of significance. "Importation seems to have been treated as involving importation into Australia in Wilson v. Chambers & Co. Pty. Ltd. [1926] HCA 15; (1926) 38 CLR 131 eg, at pp 136, 149 . See also Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150 . The particular subject matter of s. 233B(1)(b) and its relation to overseas trade does not afford any reason, in my opinion, for any differentiation in the construction of these provisions. (at p212)
18. Argument was addressed to the Court as to the territorial boundaries of Australia and I shall later say something as to that matter. But I presently observe that the meaning of the expression in the Act "import into Australia" cannot be determined by isolating "Australia" from the total expression. The question cannot be what are the boundaries of Australia for purposes other than the present. The question is what is involved according to the proper construction of the Act in the activity of importing into Australia. (at p213)
19. It is necessary now to examine the Act in order to discover what meaning is required by the statute to be given to the expressions "import into Australia" or "importation into Australia". Neither expression is the subject of definition by the Act. In the references which I make to the Act I omit the case of goods arriving on an aircraft or through an airport in relation to which the problem posed by the submissions made in this case does not arise. (at p213)
20. In considering the Act, both as to meaning and validity, it must be borne in mind that the constitutional powers supporting the statute are, in relation to the duties of Customs, the power to make laws with respect to taxation, s. 51(ii); and, in relation to the prohibition of importation, the power to make laws with respect to trade and commerce with other countries, s. 51(i). Section 90, im making the power of the Parliament to impose duties of customs and excise exclusive, does not alter the constitutional basis of the imposition of those duties; their imposition is a form of taxation. Of course, the incidence and the amount of such duties are determined not merely by the need for revenue but by the protective and fiscal policies of government. The attainment of those policies, though they may not form directly the subject of legislative power, is a constitutionally permissible use of the power of taxation and, indeed, of the trade and commerce power. But in considering whether any particular provision of the Act is within the power of taxation, within the trade and commerce power or within the legislative power given by s. 51(xxxix), it is taxation, trade and commerce and the execution of the laws made under those powers and not the policies which have determined the incidence and amount of the duties or the prohibition of imports to which the provision must relate or be found to be incidental. Further, in seeking the meaning of a provision which is ambiguous or in need of construction, the same considerations must be borne in mind. (at p213)
21. I turn now to examine the Act. "The Customs" means the Department of Customs. In order to secure due importation, goods are subject to the control of the customs from the time of importation until the earlier of delivery for home consumption or exportation beyond the seas, s. 30. Further, all goods on board ship from parts beyond the seas are subject to the control of customs whilst the ship is within the limits of any port in Australia, s. 31. This provision obviously includes goods which are not intended to be landed but which are in transit through the port. Goods subject to the control of customs may be examined by customs and may not be moved except as authorized by the Act, ss. 32 and 33. (at p214)
22. Entries may be made and passed for all goods subject to the customs, s. 36. Thus, for example, goods in transit and not intended to be landed as imports may be entered for removal to a transit warehouse: see ss. 40A and 37(1c). Imported goods must be entered for one of four named purposes, s. 68. It would seem that on the proper construction of s. 69, the Act contemplates that the goods will be entered immediately upon importation, "immediately" in that section being referable, in my opinion, to the time of the importation of the goods. Section 69 allows a sight entry to be made and s. 71 requires a complete entry within a limited time. Goods which are subject to the control of customs are provided by the Act must be entered, whether or not they are dutiable goods. On the passing of the entry, including a sight entry, the goods must be dealt with "forthwith" in accordance with the terms of the entry, s. 40. There is not specification of the time within which the entry must be passed by the customs though the manner of passing an entry is specified, s. 39. Entries are to be made of the goods unshipped. Section 49 authorizes the customs "for the purpose of securing the due importation of goods" to board the ship, have a report of the cargo and examine the goods before being landed. Due importation must mean importation in conformity with the Act, which imposes duties of customs according to the "Customs Tariff" as defined, s. 4(1). (at p214)
23. Certain of the Australian ports are proclaimed as ports for the purposes of the Act. Section 15 enables their establishment - in the sense of proclamation - and the fixation of their precise limits. Within such ports boarding stations are appointed, s. 15. A ship must not enter any place other than a proclaimed port except under stress of weather or other reasonable cause, s. 58. An overseas ship shall be brought to an appointed boarding station within the port to which it is bound or at which it calls, s. 60. Having come to the boarding station and having been boarded by an officer of customs, the ship is to be brought directly and as quickly as lawfully practicable to the proper place for mooring or unloading, s. 62. Wharves for the landing of goods and places for the examination of goods on landing may be appointed, ss. 15 and 17. The master of a ship which has arrived from overseas shall within one day of arrival report the ship by delivering its inward manifest of goods for that port, s. 64. In that provision, "arrival", in my opinion, means entry of the ship within the limits of the port. The ship may not be cleared for leaving that port unless all her inward cargo according to the manifest has been duly accounted for to the satisfaction of the Collector of Customs, s. 122. When a ship is lost or wrecked upon the coast, the master must without unnecessary delay report the ship and cargo by delivery of her manifest to the customs house nearest to the place of loss or wreck, s. 65. Dutiable goods shall be delivered without unnecessary delay to an officer: otherwise flotsam and jetsom shall not be moved without the authority of the customs, ss. 66 and 67. (at p215)
24. The scheme of the Act thus seems to be to control the due importation of goods by channelling shipping through proclaimed ports having defined limits and through boarding stations within the port to appropriate wharfage. The inward cargo is to be reported, the goods are to be entered unshipped immediately upon importation, and upon the passing of the entry, to be forthwith dealt with in accordance with the terms of the entry. In order to secure due importation, all goods from importation until passed into home consumption or until exportation abroad are subject to customs control. Goods in transit not intended to be landed are also subject to that control. There is no express provision of the Act requiring that an entry be made of goods brought within the limits of a port and not intended to be landed but to be oncarried. Section 68 confines itself to imported goods. However, imported goods intended for transhipment must be entered, s. 68: and presumably any goods may be entered for removal to a transit warehouse. (at p215)
25. All the provisions to which I have so far referred operate on the footing that importation takes place on entry into port of the goods intended to be discharged from the ship at that port. The requirement of entry of imported goods unshipped necessarily denies the proposition that importation only takes place in any case when goods are landed. It seems to me that the conclusion that entry into the port with the intention of being landed constitutes importation, is implicit throughout the reasons for decision in Wilson v. Chambers & Co. Pty. Ltd. [1926] HCA 15; (1926) 38 CLR 131 , and is so expressed in the reasons of individual Justices, e.g. (1926) 38 CLR, at pp 134, 139 . (at p215)
26. However, the submission has been made that importation of goods carried by an overseas ship takes place on the entry of the ship within the three mile limit. This submission is based principally on the presence in the Act of s. 59 and also upon the presence of the words "into Australia" in s. 233B (1)(b), it being claimed that, for the purposes of the Act, Australian territory extends to the three mile limit. It is therefore necessary to examine these contentions. (at p216)
27. The conventional "three mile limit" is a line which follows at a distance of three nautical miles precisely the contours of the coast, its bays and headlands and, in some locations, is calculated from conventional or even unilaterally determined "base lines". To determine it at any given point is a matter of considerable difficulty, depending on accuracy of charts, observations and calculations. It is a line which rarely, if ever, needs to be determined for commercial navigation. For example, although ships northward bound on the coast of New South Wales will steam close to the shore to avoid the southward flowing current, they have no need for that purpose to determine the location of the three mile limit. Shipping, whether coming round the Cape of Good Hope or through the Suez Canal, may well pass within three nautical miles of Cape Leeuwin, and though passing out of territorial waters as the Australian Bight is crossed, may well pass within three miles of one or other island in Bass Strait. I cannot think that the three mile limit is of navigational interest in such a passage. That limit does not correspond to any fathom line or to the continental shelf or to any point upon or to any area of it. It describes an area of the high seas in which by international comity the littoral nation state may exercise control in furtherance of its defence and its domestic welfare. In that respect, that area of the high seas may be said to be within the dominion of the nation state, but laws operating in that area of the high seas are of an extra-territorial character. ( at p216)
28. Section 59(1) requires the master of a ship arriving within three nautical miles of the coast, if appropriately hailed or signalled by customs or service ship, to bring the ship to for boarding and, having done so, by all reasonable means to facilitate boarding by the officer of customs, s. 61. Having thus boarded a ship, the officer may stay upon it, sleeping accommodation and food being provided by the master. Section 59 speaks only of the ship being brought to "for boarding". Whether, having boarded, the officer may exercise all or any of the powers given him by ss. 187, 189 and at least some of the powers given by s. 190 whilst the ship is still outside the limits of a port is a matter for consideration. But neither s. 59 makes, nor would the possession of these powers make, the cargo or the ship subject to "customs control" as that expression is used in the Act. Consequently, the powers given by s. 186 would not, in my opinion, be available, to an officer who has boarded a ship pursuant to s. 59. Further, the fact that an officer has boarded a ship pursuant to s. 59 does not relieve the master of the obligations of ss. 60 and 62. The ship bound to a port is in any event to bring to at a boarding station within the port. The point where the ship is brought to pursuant to s. 59 to permit and facilitate boarding is not a boarding station. (at p217)
29. Section 59 speaks of a ship "arriving". This may not seem an apt description of a ship which has entered the marginal seas, for example, off Gabo Island, on its way to discharge at Sydney or has come within three nautical miles of Cape Leeuwin en route for eastern Australian ports. One could readily understand a power to board a ship within three miles of a port as facilitating the clearance of passengers and their luggage. But, although there may be some difficulty in equating "arriving" with "being" or "coming", this case can be decided on the footing that the power given by s. 59 is not limited to boarding a ship within three miles of its port of destination but that the power is available with respect to a ship anywhere within the three mile limit around continental Australia and Tasmania. (at p217)
30. Section 59 might be supported both by the taxation and by the trade and commerce power. It is not prefaced as is s. 49 with the words "For the purpose of securing the due importation of goods". Section 49 gives a boarding power which in the context of the Act must refer to the boarding of a ship which has arrived within the limits of a port. The report of the cargo for which s. 49(2) and s. 64(a) provided, quite clearly is to take place after arrival within a port. The power to prevent "hovering" is found in s. 185 where the power to board is expressly accompanied by the power to search. Section 187 gives an officer power to board any ship, search any ship, or secure any goods on any ship: but the need for some limitation on the generality of the section is evident. The searching of a ship boarded under the powers given by s. 185 would seem not to be included in the powers given by s. 187. Again, it may be doubted whether the power to board given by that section would extend to the boarding of a ship within three nautical miles of a coast. For that, express power has been given by s. 59. Quite obviously, there must be a geographical limitation implied in s. 187. In my opinion, that geographical limitation in relation to a ship is "within the limits of a port", just as in the case of an aircraft it must be upon the land though strangely enough s. 188 requires the pilot of the aircraft to provide "sleeping accommodation in the cabin and sufficient food for the officer", something readily understood in relation to a ship but unlikely enough in the case of a landed aircraft. The injection of the officer into the plane in the airspace near Australia is, to say the least, somewhat unlikely. The power given by s. 186 to open packages etc., would not seem to extend to the cargo of a vessel within a three mile limit of the coast because s. 186 is limited to goods which are subject to the control of the customs, and as I have pointed out, nothing makes the goods in the cargo of a ship within three nautical miles of the coast subject to the control of the customs. (at p218)
31. The power to board a vessel in the marginal waters is very old in the law of customs. It is consistent with the principles of international law as expressed by Sir W. Scott in "Le Louis" [1817] EngR 835; (1817) 2 Dods 210, at pp 245-246 (165 ER 1464, at p 1476) :
"Upon a principle much more just in itself and more temperately applied, maritime states have claimed a right of visitation and enquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions for various domestic purposes, and particularly for fiscal or defensive regulations more immediately affecting their safety and welfare." (at p218)
32. This power was evidently intended as a means of preventing smuggling, that is to say, to prevent the discharge of goods to land otherwise than through a designated port. Thus, although not prefaced with words relating to the due importation of goods, I would conclude that the purposes of s. 59 is, as was historically true, to prevent smuggling and to ensure that the goods in the cargo of the vessel are brought into port and not surreptitiously discharged. Hence, no doubt, the power to seal the cargo. (at p218)
33. But this provision for boarding in the territorial waters does not have any logical connexion, in my opinion, with the question of when importation occurs. Indeed, if the goods in the ship are imported so soon as the ship arrives within territorial waters, s. 59 would be otiose: s. 187 in that event could not be limited to a vessel in port and would be available in relation to goods in the ship within territorial waters. (at p218)
34. However, in any case, it is to my mind a completely impractical concept that importation of goods takes place so soon as and wherever the ship carrying them enters the marginal seas, perhaps only to leave them again for navigational purposes as it moves towards the port of discharge. In my opinion, it would not be reasonable or practicable to impose on the owner of goods in a ship which has entered such marginal waters as from the moment of such entry the obligations which the Act places on an importer. Such a person would be unaware of the time of such entry. He could scarce be required immediately thereafter to enter the goods, even by a sight entry. (at p218)
35. But it is said that "Australia" as a territorial description stretches to the line of the three mile limit and is not a description merely expressive of the land mass of the continent and of Tasmania above sea level. What I have already said about importation would make it improper to so regard Australia for the purposes of the Act: in other words, to import into Australia, in my opinion, is to bring goods within the limits of a port or to land them in breach of the Act. In reaching this conclusion of the construction of the Act, I have found no need to rely upon Reg. v. Keyn (1876) 2 Ex D 63 . The question in construing the statutory expression "import into Australia" is not whether "the realm" extends beyond low water mark. If it were, I would regard that question as settled by Reg. v. Keyn. If it were an open question I would myself feel convinced by the reasons of the majority, particularly those of Cockburn L.C.J. (1876) 2 Ex D, at pp 159ff . (at p219)
36. But, in any case, I am unable to accept the proposition that the limit of Australian territoy is co-extensive with the three mile limit. I have already expressed my opinion that the submerged land of the continent to the point where it meets the ocean floor, referred to as the continental shelf, at least to the extent to which it can be used or exploited, is within the sovereignty of the nation, both as regards other nations and as regards the Australian States. But that does not mean that a reference to Australia in a statute of the Parliament is a reference to Australia as if bounded territorially by that continental shelf. Nor does it mean that the waters superincumbent on that shelf are within the territory of Australia. The question whether the waters within the line three nautical miles from the coastline as "territorial waters" are under the dominion of the nation, absolute or limited, is yet another and a different question. I have already referred to the extent of the control of them which is comformable to international comity. Quite clearly, there is an international right of innocent passage through them. It is an odd concept that a foreign ship exercising this right of passage is traversing the territory of Australia. I had occasion in Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 , to consider the meaning of the constitutional expression "beyond territorial limits". But again the question of the meaning of "Australia" in a Parliamentary enactment was not involved: nor does a conclusion as to the meaning of the expression "Territorial limits" in the Constitution necessarily determine the meaning of "Australia" or the extent of Australian territory. (at p219)
37. In my opinion, in the phrase "import into Australia" the reference is to the unsubmerged land mass of the continent and of Tasmania which does not include the marginal waters or, for that matter, any part of the continential shelf. The question is what is involved according to the Act in importation into Australia. On that I have expressed my firm conclusion. Accordingly, I am of opinion that, in order to commit the offence of importing created by s. 233B(1)(b), the goods in question must have been brought within the limits of a port with the intention of landing them or must have been landed in Australia. (at p220)
38. The next question is whether any, and if so what, geographical limitation is implicit in s. 233B(1)(a). If to be prohibited imports the goods must have been imported, then the possession which offends must be possession in a port or on the land. Thus, the meaning of the provision as to importation will decide the identification of prohibited imports. (at p220)
39. However, I will first essay the construction of the section as to the place where possession is to be had. At the outset, the section cannot be referring to possession anywhere in the world. Some geographical limitation is essential to make the section relevant to the Act and its purposes. Here the Act may be regarded as dealing with a matter of trade. The prohibition of import is not a matter of taxation: nor, in my opinion, incidential to that subject matter or to the execution of a revenue law. The offence created by s. 233B(1)(b) is, in my opinion, incidential to a prohibition on trade: it is a means of rendering the prohibition of importation effective. It seems to me that a principal purpose of s. 233B(1)(a) is to enable the prosecution of a person found in possession of the goods where it cannot be established who the actual importer of the goods was, though its application may not be limited to such a case. It can be used to embrace accomplices after an importation in breach of the Act. To construe the section as referring to possession on land or in a port of imported goods the importation of which is prohibited would give it a wide and effective operation. (at p220)
40. But it was argued that because an officer might board a ship arriving within three nautical miles of the coast the section must include possession within the marginal waters of the coast. I am unable to see any logical connexion between the two sections. Applying the section to the foreign trade by sea, the possession of the cargo is in the master of the vessel, the right to possession, absolute or conditional as the case may be, being either in consignor or consignee as the circumstances require. Knowledge of the nature of the thing possessed is not essential to the commission of the offence under s. 233B(1)(a); however much ignorance of it may exculpate: see Maher v. Musson [1934] HCA 64; (1934) 52 CLR 100 . It would, in my opinion, be absurd to construe the section as making it an offence in the master to be in possession in the marginal seas of any goods the importation of which is prohibited. One might well ask, why the marginal seas? What relevance to the matter in hand, trade and commerce, have they? I can find no logical reason connected with the regulation of foreign trade or, for that matter, with the collection of the revenue, which would suggest that the implied geographical limitation was that the ship should be in territorial waters. (at p221)
41. Section 59, even if it be thought that it renders available to the boarding officer all the powers of ss. 187, 189 and 190, does not give the officer any power of the search of person. Section 59 would thus scarcely be relevant to the possession by a person on a ship on the high seas of narcotic goods or other goods the importation of which was prohibited, not being a part of the cargo but held by him on his person or in some personal luggage. (at p221)
42. It is noticeable that the term in the section is "has in his possession", not "having had" but "has" in his possession. It is not equivalent to a common form of provision, namely, "is found" with goods in possession. The reference "has in his possession" cannot mean "has" when the officer boards the vessel or at some other time. The only relation the "having possession" seems to me to have is to the period when the ship is in a port and not to any period when it is on the high seas. The possession thus is relevant to importation. (at p221)
43. In this connexion, I may say I would not read par. (c) of s. 233B(1) as excluding possession on a ship in port, though the contrast between pars (a) and (c) is that (a) contemplates that the goods are in possession on board the ship and (c) deals principally with the case of possession otherwise than in a ship. (at p221)
44. I should point out that I am not here concerned with questions of validity, nor am I concerned to discuss whether the Parliament could be appropriate language create an offence in relation to possession of goods on a ship within territorial waters or, for that matter, on a ship carrying cargo to Australia. My concern is with the section as it now is. As I have pointed out, it obviously needs some implication to make good sense of the provision. I have indicated what in my opinion is the implication which should be made. (at p221)
45. Section 233B(1)(a), in my opinion, does not apply to a case where narcotic goods are in possession of a person on a ship which is not within the limits of a port in Australia and, in particular, that it does not apply to a person who has the goods in possession on a ship which happens to be, at some point of time during his possession, within the three mile limit. (at p221)
46. I turn then to consider what are prohibited imports. By definition through s. 51 they are goods the importation of which is prohibited. But are they prohibited imports before they are imported? The actual importer of such goods is caught by s. 233B(1) (b). Persons holding them either for him or from him, in my opinion, are reached by s. 233B(1)(a) or 233B(1)(c), usually depending on whether or not the goods have been landed. Section 233B(1)(ca) covers the case of possession in Australia where actual importation cannot be established but is reasonably suspected. (at p222)
47. It is of interest to notice in passing that in the application of s. 233(1)(d) smuggled goods must be goods which have been imported. (at p222)
48. It is convenient at this point to refer to the mechanism for prohibiting the importation of goods as a regulation of overseas trade and commerce. It is observable that the manner of excluding goods in the exercise of the control of overseas trade and commerce is to authorize the specification of goods which may not be imported. This has introduced into the regulation of trade and commerce the concept of importation as used in connexion with the recovery of duties of customs. A convenient drafting device has been adopted in the use of the description "prohibited imports" for goods the importation of which is forbidden. The principal substantive provisions in the regulation of trade in goods are s. 233(1)(b) and s. 231(1)(a), which make it an offence to import any prohibited imports, that is to say, to import any goods the importation of which is prohibited. (at p222)
49. Section 50(1) empowers the Governor-General, by regulation, to prohibit the importation of goods. Under this power he may prohibit the importation of all goods except under licence. He is not limited to prohibiting the importation of specific goods or of goods of a class. The width of the power to proclaim the prohibition of importation may be seen in the decisions of this Court in Radio Corporation Pty. Ltd. v. The Commonwealth [1938] HCA 9; (1938) 59 CLR 170 ; Poole v. Wah Min Chan [1947] HCA 37; (1947) 75 CLR 218 and Reg. v. McLennan; Ex parte Carr [1952] HCA 39; (1952) 86 CLR 46 . Thus, the importation of all goods could be prohibited as the result of a regulation made under s. 50. In that case, all goods would be prohibited imports. (at p222)
50. It was submitted that the expression "prohibited imports" described a class of goods identified by their proscription by regulation. Thus it is said, wherever they may be, if they fall within the description of the relevant regulation, they are prohibited imports, whether they are in fact imported or intended to be imported. I am quite unable to accept this submission. To my mind, it cannot have been the intention of the legislature in enacting s. 50 and s. 51 to so provide. Apart from perhaps providing a ground to question the validity of provisions so construed, the result of that view indicates its unnacceptability. I have already pointed out the possibility of the prohibition of importation of all goods, e.g. without a licence to import. It could scarcely be contemplated that possession anywhere of any goods was being proscribed. But, further, marihuana grown in a suburban back-yeard in an Australian city would on such a construction fulfil the description of the regulation made in respect of narcotic goods pursuant to s. 50. Yet, obviously, it cannot have been intended to include the home-grown production in the expression "prohibited import". Again, a locally printed text of a book the importation of which is prohibited cannot have been intended to fall within the provisions of the Customs Act. Nor could a provision making possession of such a product or such a book an offence be within the competence of the Parliament. In other words, in my opinion, to satisfy the expression "prohibited imports" the goods must be imports, they must have been imported. Section 51 does no more than by a convenient drafting device describe goods which being imported will be prohibited imports, goods imported in breach of the prohibition of their import. In my opinion, prohibited imports are imports the importation of which is prohibited. (at p223)
51. The views I have so far expressed would be sufficient to dispose of the indictments and verdicts to which I earlier referred and which are the subject of question 1(a) with the exception of the charge against Joseph Corns of knowingly allowing the vessel to be used in the importation of goods contrary to s. 233A. (at p223)
52. The process of importation as distinct from the act of importation is not confined to what occurs at the actual time or place when and where the goods are imported. The Court observed upon this circumstance in Forbes v. Traders Finance Corporation Ltd. [1971] HCA 60; (1971) 126 CLR 429 , when it decided that a motor vehicle used to carry goods away from the airport when they were prohibited imports was used in the importation of those goods. It seems to me that a ship which is carrying goods for the purpose of their importation contrary to s. 233A may be used in the process of the importation of the goods though because of official intervention they are not, in the result, imported. Close proximity of the vessel to the port of intended discharge at the time of official intervention will be a factor in deciding whether, there being in fact no importation, the vessel was so used. It seems to be clear on the facts of the stated case that the master of the ship had knowledge of what he was carrying. It could be concluded that he knew that the goods were to be imported into Australia and that, because of their nature, their importation was prohibited. It could be inferred that to his knowledge it was through the port of Darwin by the same or another vessel that the cannabis was to be landed. Thus, given the proximity of the vessel to the port, it could be held that he was knowingly allowing his ship to be used in the process of importation of the cannabis. In my opinion, there was evidence tu support a conviction of the master of the vessel under s. 233A of the Act by a competent court even though, due to the boarding of the vessel, the cannabis was not imported. (at p224)
53. It becomes necessary therefore to consider and decide whether the Supreme Court of the Northern Territory had jurisdiction to try the master of the vessel for the breach of s.233A of the Customs Act by an act not committed in the Northern Territory. That Court's jurisdiction is entirely statutory and derives from s. 15 of the Northern Territory Supreme Court Act, which is in the following terms:
"(1) The Supreme Court -
(a) has, subject to this and any other Act and to any Ordinance, in
relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before the first day of January, One thousand nine hundred and eleven;
(b) has such jurisdiction, whether civil or criminal, as is from time to time vested in or conferred on the Supreme Court by Act or by Ordinance (including an Act or Ordinance passed or made before the commencement of this Act, as affected by sub-section (5) of section four of this Act);
(c) has jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, being matter arising in, or under the laws in force in, the Territory; and
(d) has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance, to hear and determine appeals from all judgments of inferior courts in the Territory given or pronounced after the commencement of this Act.
(2) The jurisdiction of the Supreme Court of South Australia referred to in paragraph (a) of the last preceding sub-section includes jurisdiction that that Court had as federal jurisdiction.
(3) The jurisdiction of the Supreme Court referred to in sub-section (1) of this section is in addition to the jurisdiction that the Court has under any Imperial Act." (at p225)
54. I shall deal with the possibilities of jurisdiction, first, as equivalent in the Territory to that which the Supreme Court of South Australia had in relation to that State on 1st January 1911, other than federal jurisdiction vested in that Court by the Judiciary Act 1903-1910 and, second, as equivalent in the Northern Territory to that federal jurisdiction enjoyed by the Supreme Court of South Australia. No suggestion has been made of any jurisdiction deriving from par. (b) of s. 15(1).
55. We are concerned throughout this discussion with jurisdiction of the Supreme Court to try persons present within the colony or State as the case may be for acts committed on the high seas, which undoubtedly commence at low water mark. We are not concerned with the powers of the legislature of the colony or State to pass extra-territorial laws. Nor are we concerned with the question whether colonial or State legislatures had power to increase the jurisdiction of the courts locally administering the jurisdiction of the Admiral, cf. Prince v. Duncan (1871) 10 SCR 253 : or with the question whether a local legislature could empower its courts to try persons for acts committed on the high seas or some particular part of it against the laws of the State or colony. (at p225)
56. The colony of South Australia was erected by letters patent issued pursuant to 4 & 5 Wm IV c. 95. The letters patent were dated 19th February 1836 and were proclaimed in Holdfast Bay, South Australia, on 28th December 1936. The letters described the boundaries of the land to be included in the colony. It was over that area of land that Governor Hindmarsh was appointed Governor. That area quite clearly, according to the description in the letters patent, was bounded in the south by the sea. The colony, though graduating to self-government in relation to domestic as distinct from foreign affairs, remained a colony within the British Empire. Its territorial boundaries did not alter when upon federation it became a State of the Commonwealth, though still within the Empire. Thus a reference to the colony or State of South Australia was and is, in my opinion, a reference to a land territory bounded by the coastline, i.e. by low water mark on the shore, offshore islands and estuaries of water inter fauces apart. (at p225)
57. It is, to my mind, abundantly clear that the Imperial Parliament throughout considered the waters within a marine league of the coasts of the colonies of the Empire as Imperial territorial waters and to be, so far as concerned the trial and punishment of offenders, within the jurisdiction of the Admiral. Such offences are properly described as extra-territorial offences. The very terms of the Territorial Waters Jurisdiction Act 1878 (Imp.) make those conclusions abundantly clear. (at p226)
58. It is fundamental to a discussion of the jurisdiction of the Supreme Court of South Australia to bear in mind that the distinction between the jurisdiction of the courts to common law and that of the Admiral in criminal matters has never been eliminated. The land and the high seas which begin at low water mark, so far as crime is concerned, remain in contrast. What has occurred, historically, is that the judges of the courts of common law have been endowed with the capacity to exercise the jurisdiction of the Admiral in criminal matters and allowed in time to apply in its administration common law procedures rather than those of the civil law. In this sense, as Holdsworth says, History of English Law, vol. 1, p. 551, "the criminal jurisdiction of the Admiralty was transferred to the judges of the courts of common law" and "the criminal jurisdiction of the Admiralty has thus for almost four centuries been exercised by the judges of the courts of common law". The authority so exercised was with respect to offences committed by British subjects anywhere on the high seas and by any person on a British ship on the high seas, and after the Act of 1878 by anybody in Imperial territorial waters, i.e. including foreigners on non-British ships. The jurisdiction of the Admiral was not limited to any class of offence but extended to all offences, including those created by statute. This authority, exercised by those who were judges of the common law courts, did not become part of the jurisdiction of the common law courts themselves. But this distinction ceased to have any practical significance in England. However, where, as was the case of the colonial courts, jurisdiction was given by reference to the jurisdiction of the common law courts, the distinction could be crucial, as indeed I think it is in the instant case. (at p226)
59. There is no need for me to trace this progressive assignment of the administration of the jurisdiction of the Admiral to the judges of the common law courts in England or the procedural devices by which it was effected. The criminal as distinct from the instance aspect of that jurisdiction ultimately came to rest with the Central Criminal Court in 1834 in respect of certain English counties, see 4 & 5 Wm IV c. 36: and in 1844 with Justices of Assize holding commissions of oyer and terminer in other parts of England by virtue of 7 Vict. c. 2. But it is necessary to trace the course by which the courts of general jurisdiction in the Australian colonies came to have authority to exercise the jurisdiction of the Admiral in respect of crimes committed on the high seas. (at p227)
60. It was early felt in the colony of New South Wales that there should be a Supreme Court with power to try crimes, principally thought of as piracies, murders and conspiracies, committed on the high seas, particularly in the Pacific and the Tasman. Accordingly, an exceptional course was taken by s. 4 of 9 Geo. IV c. 83, by enacting that the Supreme Courts of New South Wales and of Van Diemen's Land, set up by charters under 4 Geo. IV c. 96, should have jurisdiction to hear and determine crimes committed by master or crew of a British ship or by a British subject upon the sea or elsewhere within the jurisdiction of the Admiral or in the islands of New Zealand, Otaheite or any other island in the Indian or Pacific Oceans not subject to the British Throne or to any European power. This jurisdiction was that of the Supreme Court and not merely that of the Admiral exercised by the Supreme Court: but it was clear that the crimes were to be such according to Imperial law and the punishments were fixed by Imperial law. However, this course was not taken in connexion with any other Australian colony. (at p227)
61. Upon the creation of the colony of South Australia legislative power was given to the Governor by and with the advice of the Legislative Council of the colony to "erect, create, constitute and establish" a Court of Judicature. (at p227)
62. Accordingly, by an Act of 1837, 7 Wm IV c. 5, the Supreme Court of the Province of South Australia was created. Its jurisdiction was expressed by s. VII to be "cognizance of all pleas civil criminal and mixed and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as His Majesty's Courts of Kings Bench Common Pleas and Exchequer at Westminster or either of them lawfully have or hath in England". The court was to be at all times a court of oyer and terminer and gaol delivery in and for the Province and its dependencies. It was also made a court of equity and of ecclesiastical jurisdiction. The jurisdiction of oyer and terminer here, in my opinion, was jurisdiction with respect to offences committed within the province. Quite clearly, the Supreme Court was here given none of the jurisdiction of the Admiral instance or criminal. Also, it did not obtain the authority to administer the criminal jurisdiction of the Admiral which was given to the Central Criminal Court in 1834 or to the Judges of Assize under the authority of 7 Vict. c. 2 (1844). (at p228)
63. However, by 12 & 13 Vict. c. 96 (1849), the colonial courts with criminal jursidiction were given jurisdiction to try persons charged with criminal acts within the jurisdiction of the Admiral. It is plain from the terms of the Act that the crimes were such as the Admiral could try, that is to say, acts deemed criminal by Imperial law and the punishments were to be those for which that law provided. This Act expressly preserved the special jurisdiction of the Supreme Courts of New South Wales and Van Diemen's Land given by the Act of 1828. The Supreme Court of South Australia thus and to this extent obtained jurisdiction to try British subjects for crimes committed anywhere on the high seas and any person for crimes committed on British ships anywhere on the high seas, not limited in any case to crimes committed in or on British ships in Imperial territorial waters. Incidentally, the passing of this Act makes it clear that a submission by the Crown that a jurisdiction equivalent to that of the Admiral came to the Supreme Court of South Australia by its constitution as a court of oyer and terminer in 1837 is unacceptable. The distinction between the commission of oyer and terminer to try offences committed on the land and the commission of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiral is also plainly seen in the terms in which s. 1 of the Act of 1844 is expressed. I need not further deal with that submission. (at p228)
64. In 1874 the Imperial Parliament passed an Act 37 & 38 Vict. c. 27 "to regulate the Sentences imposed by Colonial Courts where jurisdiction to try is conferred by Imperial Acts". Its preamble is in the following terms:
"WHEREAS by certain Acts of Parliament jurisdiction is conferred on courts in Her Majesty's colonies to try persons charged with certain crimes or offences, and doubts have arisen as to the proper sentences to be imposed upon conviction of such persons; and it is expedient to remove such doubts."
"3. When, by virtue of any Act of Parliament now or hereafter to be passed, a person is tried in a court of any colony for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court, or if committed within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwithstanding: Provided always, that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England." (at p229)
65. It is quite plain from the terms of this section, first, that the crime or offence to which the section relates remains, as under the Act of 1849, a crime or offence by or against Imperial law and, second, that the high seas are wholly outside the territorial limits of the colony. All that the statute did, in my opinion, was to authorize the imposition for an Imperial offence of what I might call the appropriate colonial penalty for a like offence committed within the limits of the colony, or if there should be no like offence under colonial law, the most appropriate English penalty. It was submitted that this Act repealed the Act of 1849 in toto and gave to the colonial court authority to try persons for acts committed on the high seas declared by the colonial legislature to be punishable as crimes or offences. But, in my opinion, such a submission is untenable. After the passing of the Act of 1874 the extra-territorial jurisdiction of the Supreme Court, in my opinion, remained limited to the trial of persons for Imperial offences committed on the high seas. (at p229)
66. The Territorial Waters Jurisdiction Act of 1878 (41 & 42 Vict. c. 73) made it clear that the particular offences specified by that Act (s. 4) committed by foreigners within territorial waters were triable within the jurisdiction of the Admiral subject to the certificate or leave mentioned in s. 3 of the Act. Thus the Supreme Court of South Australia obtained jurisdiction with respect to the trial of the said offences committed by foreigners within Imperial territorial waters, not limited of course to waters within a marine league of the coast of South Australia. (at p229)
67. Special provision was made by 23 & 24 Vict. c. 122 in 1860 for colonial legislatures to enact that where death resulting from a felonious act committed within the colony should take place on the high seas, a person guilty of the felonious act might be dealt with as if the entire offence, i.e. including the death, had taken place within the colony. The Act is presently of interest only as indicating the limited capacity it was then considered a colonial legislature to have to make acts or events on the high seas criminal and triable in the colony. (at p229)
68. It might here be observed that the views expressed by Lord Halsbury in Macleod v. Attorney-General (N.S.W.) (1891) AC 455, at p 458 in 1891 were founded at least in part on what was said by Parke B. in Jeffrys v. Boosey [1854] EngR 816; (1854) 4 HLC 815 (10 ER 814) , a case decided in 1854. (at p230)
69. These Imperial statutes were not repealed or affected by the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27) which created or made provision for the creation of colonial courts of Admiralty with a like jurisdiction in Admiralty to that of the High Court in England. (at p230)
70. In 1856 the South Australian Act of 1837 and its amendments were consolidated by The Supreme Court Act, 19 Vict. 1855-1856, No. 31. This Act did not relevently enlarge the jurisdiction of the Supreme Court. It was the jurisdiction of the common law courts at Westminster which was the subject matter of s. 7 of that Act. The jurisdiction of the judges there given was such as was necessary for carrying into effect those common law jurisdictions. (at p230)
71. However, by the Supreme Court Procedure Act (No. 7 of 1866) the Supreme Court was given the powers of the Court of Exchequer on the revenue side and by the Supreme Court Act (No. 8 of 1867) s. 27, the Supreme Court "on the Crown side" was given a like jurisdiction in the colony to that which the Queens Bench at Westminster had on the Crown side and the Chief Justice and Judges of the Supreme Court were given the like jurisdiction, power and authority in the Supreme Court on its Crown side as the Chief Justice and the Judges of the Queens Bench had on the Crown side. (at p230)
72. The passage of the 1867 Act was evidently prompted by the controversy as to the powers of the Supreme Court to issue the prerogative judicial writ of scire facias which was a central point in the case of Reg. v. Hughes (1866) 1 SALR (Appendix) 143 decided in the Supreme Court of South Australia in August 1864 and in the Judicial Committee in February 1866. The Act, by its reference to "the Crown side" was evidently concerned to confirm the power of the Supreme Court and its judges to issue prerogative writs in connexion with matters occurring within the colony. (at p230)
73. I have not found, nor have I been referred to, any statute of South Australia the terms of which are the equivalent of a grant of jurisdiction to the Supreme Court to try persons for acts done on the high seas which if done on the land would offend provisions of the local law. Nor is there an Act of an extra-territorial nature which makes acts on the high seas offences against the local law punishable by the Supreme Court. I refer to the high seas, for in this connexion there is no significance in the territorial seas. A law of the former kind would be necessary, in my opinion, to create the general jurisdiction in the Supreme Court of South Australia which the Crown claims the Supreme Court of the Northern Territory to have. (at p231)
74. The situation therefore at the time of federation was that by virtue of Imperial law the Supreme Court of South Australia had jurisdiction to try Imperial crimes and offences, which included common law offences such as murder and manslaughter, committed anywhere on the high seas by British subjects, by any persons anywhere on British ships on the high seas and by any persons on any ship in Imperial teritorial waters, and to inflict what I have called appropriate colonial punishments therefor. Without repetition, I include in the high seas all those places where the Admiral had jurisdiction. But it had no jurisdiction to try persons for acts done on the high seas of a kind which had only been made criminal in South Australia by South Australian statute. (at p231)
75. As I have indicated, I am not here concerned with the extent of colonial legislative power to enact laws having extra-territorial effect, including the power to create offences as incidental to such laws and their execution, and to give jurisdiction to courts to try persons for such offences. Having regard to the decision in Croft v. Dunphy (1933) AC 156 , such a legislative power exercised for the peace, order and good government of the colony may be held to exist. But a particular exercise of such a power, including the vesting of jurisdiction in the Supreme Court to try offences against such laws does not, in my opinion, affect the general jurisdiction of the Supreme Court relevant to s. 15 of the Northern Territory Supreme Court Act 1961-1973. For example, a power to punish offences under a colonial Customs Act committed within a marine league of the coast does not create a general jurisdiction to try persons for all acts done extra-territorially which if done on the land would be offences criminally punishable. To digress to mention an aspect of the invested federal jurisdiction derived from the Judiciary Act, to which I will later refer, the power to punish extra-territorial acts in breach of a colonial customs law does not support the conclusion that for that reason the State court derives jurisdiction from the Judiciary Act to try persons for breaches of the federal Customs Act committed extra-territorially. (at p231)
76. Nothing occurred between 1900 and 1911 to increase the jurisdiction of the Supreme Court of South Australia in any relevant respect. Thus, in my opinion, no general jurisdiction existed in 1911 in South Australia to try persons for acts not being Imperial offences within the jurisdiction of the Admiral and not committed in South Australia, whether as a result of the creation of the Supreme Court or of any colonial legislation giving jurisdiction or as a result of Imperial legislation. (at p232)
77. It is appropriate here to refer to the decision of the Supreme Court of South Australia in Giles v. Tumminello (1963) SASR 96 . A defendant was charged before a magistrate with larceny of some fishing gear contrary to s. 131 of the Criminal Law Consolidation Act 1935-1956 (S.A.) on the high seas some four and a half miles from the coastline of South Australia. It was held that the magistrate had jurisdiction under the Justices Act, 1921-1960 (S.A.) to hear the charge and convict the defendant. (at p232)
78. Upon the argument of a case stated by the magistrate for the opinion of the Supreme Court, it was submitted for the defendant that the only court in South Australia which had jurisdiction to hear and determine the charge, being jurisdiction derived from an Imperial statute, namely 12 & 13 Vict. c. 96, was the Supreme Court. The Court did not express "any final opinion upon" that question but saw no reason why, if it were necessary to rely upon that Act, "it should not apply to enable a minor offence to be tried by a court of summary jurisdiction in the manner prescribed by the laws of the State". But the Court expressed the view that "the jurisdiction given to the courts of the province was the jurisdiction of the English courts as it was in 1836, long after crimes committed on the sea had been made justiciable by the courts in England in the ordinary course of the administration of criminal justice, and, as the only venue was South Australia, the ground upon which the jurisdiction was originally restricted to dry land was inappliable". But the distinction between the jurisdiction of the Admiral and that of the courts of common law was fully maintained in England in 1836, and indeed, as I have pointed out, is still maintained. What I have already written would indicate that I consider this conclusion of the Supreme Court to be mistaken. (at p232)
79. It is not possible, in my opinion, to treat the grant of power to exercise the jurisdiction of the Admiral as a grant of jurisdiction to try offences created by the local legislature. The grant of jurisdiction equivalent to that of the common law courts did not itself carry authority to try crimes extra-territorially committed. I am unable to accept the reasoning of the Supreme Court or the conclusion that the Justices Act gave to the magistrate jurisdiction to try persons for acts done on the high seas which, if done in South Australia, would be in breach of the Criminal Law Consolidation Act. In my opinion, Giles v. Tumminello (1963) SASR 96 was not correctly decided. (at p233)
80. I turn now to the question whether the Judiciary Act 1903-1910 gave to the Supreme Court of South Australia a jurisdiction to try persons for acts committed on the high seas in breach of federal law. Again, the discussion does not involve any question of constitutional power to vest such a jurisdiction in State courts. But no specific and express exercise of such an undoubted power has been made in the case of the Supreme Court of South Australia or of the Supreme Court of the Northern Territory. (at p233)
81. Part X of the Judiciary Act deals specifically with the jurisdiction of State courts to try persons for federal offences. To the extent that any effect of the general investiture of jurisdiction by s. 39(2) is not inconsistent with the specific provisions of Pt X, that section is operative to confer jurisdiction on State courts: see Adams v. Cleeve [1935] HCA 12; (1935) 53 CLR 185, at p 190 . But s. 68(2) is express in its limitation of the investiture of State courts with respect to the trial and conviction on indictment of persons charged with offences against laws of the Parliament to the trial and conviction of such persons who have committed such offences within the State unless by State law they may be tried in the State for offences committed elsewhere. This last condition refers, in my opinion, to the general jurisdiction of the State courts. As I have already indicated, there is, in my opinion, no such jurisdiction in the Supreme Court of South Australia. In my opinion, s. 39(2) of the Judiciary Act cannot operate to confer upon a State court jurisdiction to try a person for a federal offence not committed within the State. Nothing in Adams v. Cleeve [1935] HCA 12; (1935) 53 CLR 185 , in my opinion, lends any colour to such a proposition. That case was concerned with rights of appeal to this Court and in no sense with the jurisdiction of a State court to try a person for a federal offence. To construe s. 39 (2) as giving the State courts jurisdiction to try persons for breaches of Acts of the Parliament not committed within the State would be to make it clearly inconsistent with s.68(2). In my opinion, by no process of construction is such a course warranted. (at p233)
82. But, in any case, s. 39(2) in its express terms accommodates its operation to s. 68(2). It invests the State courts with federal jurisdiction within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise. In my opinion, two matters are basic to the operation of the sub-section. First, there is in my opinion, the fact that the territory of South Australia, offshore islands and water inter fauces apart, is bounded on the south by low water mark of the coast and does not include the sea contained within the three mile limit. Second, the principle that crime is local: the jurisdiction to try a person for crime depends on the commission of all the elements of th crime within the territory. The Imperial Act of 1860 to which I have referred is indicative of the basic principle. (at p234)
83. But where a court exercises the jurisdiction of the Admiral or has the benefit by local legislation of the provisions of the Act of 1860, no particular attention need be paid to questions of jurisdiction in the case of a common law offence wholly or partly committed below low water mark. Thus, in the case of Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 , to which reference was made in argument, attention was not paid, and had no need to be paid, to any question of jurisdiction. The crime of murder committed on the high seas is a crime within the cognizance of the Admiral. State Supreme Courts thus can try such a case by virtue of the Imperial Acts to which I have referred. (at p234)
84. Section 39(2) recognizes that there are territorial limits to the jurisdiction of the State courts, including of course the Supreme Courts. In my opinion, in the case of the trial of criminal offences, there is the definite limit to the Supreme Court's jurisdiction, namely, that the offence be committed within the territory of the State. Accordingly, in my opinion, and apart from the clearly express and inconsistent provision of s. 68(2), the Supreme Court of South Australia did not by virtue of s. 39(2) of the Judiciary Act have jurisdiction to try a person for a federal crime not committed in the territory of South Australia. Further, in my opinion, the expression "in relation to" in s. 15 of the Northern Territory Supreme Court Act is used definitively and not merely as a contrasting phrase. It does introduce the territorial limitation of the jurisdiction granted. (at p234)
85. This result is, to my mind, conformable to the public interest and convenience in the prosecution and trial of federal offences. A notable feature of the Judiciary Act is the absence of any general power of remission of a case to some more convenient forum. Consequently, if State courts had jurisdiction to try federal offences committed in another State the power would reside in the executive to choose its own venue: and the court chosen as the place of prosecution would have no means of protecting the accused by the remission of the case to the court of the place where the offence was committed. When, in the Matrimonial Causes Act, 1959-1966, it was found desirable, because of the creation of a national domicile, to vest jurisdiction in all the Supreme Courts of the States to hear petitions, it was necessary to provide a power of remission to avoid injustice: see s. 26(2) of the Matrimonial Causes Act. There is nothing incongruous in the conclusion that in respect of the trial of federal offences, the jurisdiction of the State courts is limited to offences committed within the State in question. (at p235)
86. In my opinion, therefore, the Supreme Court of the Northern Territory had no jurisdiction to try the indictments in this case. (at p235)
87. It is apparent, however, from this discussion and whatever the order of the Court in this case, that there is room for a more specific investiture of State courts with a jurisdiction to try federal offences committed on the high seas. Perhaps some demarcation of an area of those seas might be made so as to correspond in some part with prolongations of the "lateral" boundaries of the States so as to localise any jurisdiction with respect to federal offences committed on the high seas: and in any case a power of remission to a more convenient venue might well be given. Further, the circumstances of this case point up the need for the Parliament to exercise its legislative power under s. 76 (iii) and s. 77 (iii) of the Constitution. It is anomalous that the distinction between the jurisdiction of the Admiral in respect of the high seas and that of the courts of law should be maintained as it is at present. It is highly inconvenient that in a matter of criminal jurisdiction the complexities disclosed in this case should remain. It is also inappropriate at this time that, on the one hand, the power of a court in Australia to try extra-territorial offences should be derived from and be limited by Imperial legislation, and on the other hand, that such a court should have jurisdiction to try persons for Imperial offences committed anywhere on the high seas or where the Admiral has jurisdiction. (at p235)
88. In my opinion, the questions to be answered in the stated case should be answered: 1.(a) No. 2. Unnecessary to answer. 3. Unnecessary to answer. 4.(a) None of the offences, except that with which the master Joseph Corns was charged were capable of being committed in the area between low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof. (at p235)
Count 1
Statement of Offence
Importing prohibited imports to which s. 233B of the Customs Act 1901-1971
applies: contrary to s. 233B (1) (b) of the Customs Act 1901-1971. Particulars
Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on or
about 1st March 1973 near Charles Point did import into Australia prohibited imports namely about 31,000 grams of cannabis.
Count 2
Statement of Offence
Attempt to import prohibited imports to which s. 233B of the Customs Act
1901-1971 applies: contrary to s. 233B (1) (b) of the said Act. Particulars
Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on or about 1st March 1973 did attempt to import into Australia a prohibited import namely about 31,000 grams of cannabis.
Count 3
Statement of Offence
Possession on a ship of prohibited imports to which s. 233B of the Customs
Act 1901-1971 applies: contrary to s. 233B (1) (a) of the said Act.
Particulars
Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on
or about 1st March 1973 near Charles Point did without reasonable excuse have in their possession on board a ship namely the vessel Mariana a prohibited import namely about 31,000 grams of cannabis.
Count 4
Statement of Offence
Possession of prohibited imports to which s. 233B of the Customs Act
1901-1971 applies: contrary to s. 233B (1) (c) of the said Act.
Particulars
Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on
or about 1st March 1973 near Charles Point without reasonable excuse had in their possession prohibited imports namely about 31,000 grams of cannabis which had been imported into Australia in contravention of the said Act.
Count 5
Statement of Offence
Assembling to prevent the seizure of prohibited imports to which s. 231(1)
of the Customs Act 1901-1971 applies: contrary to s. 231(1)(c) of the said Act.
Particulars
Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on
or about 1st March 1973 did assemble on the vessel Mariana for the purpose of preventing the seizure of a prohibited import namely 31,000 grams of cannabis in contravention of the said Act.
Count 6
Statement of Offence
Importing a prohibited import to which s. 233B of the Customs Act 1901-1971
applies: contrary to s. 233B(1)(d) of the said Act.
Particulars
Gregory James Conn on or about 1st March 1973 did import into Australia a
prohibited import namely about 14.8 grams of cannabis resin in contravention of the said Act.
Count 7
Statement of Offence
Attempt to import prohibited imports to which s. 233B of the Customs Act
1901-1971 applies; contrary to s. 233B(1)(b) of the said Act.
Particulars
Gregory James Conn on or about 1st March 1973 did attempt to import into
Australia a prohibited import namely about 14.8 grams of cannabis resin.
Count 8
Statement of Offence
Possession on a ship of a prohibited import to which s. 233B of the Customs
Act 1901-1971 applies: contrary to s. 233B(1)(a) of the said Act.
Particulars
Gregory James Conn on or about 1st March 1973 did without reasonable excuse
have in his possession on board a ship namely the vessel Mariana a prohibited import namely about 14.8 grams of cannabis resin.
Count 9
Statement of Offence
Possession of prohibited imports to which s. 233B of the Customs Act
1901-1971 applies: contrary to s. 233B(1(c) of the said Act.
Particulars
Gregory James Conn on or about 1st March near Charles Point without
reasonable excuse did have in his possession a prohibited import namely about 14.8 grams of cannabis resin.
Count 10
Statement of Offence
Assemble to import prohibited imports to which s. 231(1) of the Customs Act
1901-1971 applies: contrary to s. 231(1)(a) of the said Act.
Particulars
Joseph Corns on 15th February 1973 at Darwin did assemble with Barry Richard
Bull and John Plithakis for the purpose of importing prohibited imports being narcotic goods namely an undetermined quantity of cannabis.
Count 11
Statement of Offence
Being the master of a ship, knowingly suffered her to be used in the
importation of goods in contravention of the Customs Act 1901-1971: contrary to s. 233A of the said Act.
Particulars
Joseph Corns on 1st March 1973 near Charles Point in the Northern Territory
of Australia being the master of a ship, namely the vessel Mariana, knowingly suffered the said ship to be used in the importation of goods in contravention of the Customs Act 1901-1971, namely about 31,000 grams of cannabis which are narcotic goods.
Count 12
Statement of Offence
Conspiracy to commit an offence against the law of the Commonwealth:
Particulars
Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on
divers days between 23rd January 1973 and 2nd March 1973 at Darwin in the Northern Territory of Australia and elsewhere conspired together and with John David Belment Wholagan and with other persons unknown to commit an offence against s. 233B of the Customs Act 1901-1971 that is to say to import into Australia prohibited imports to which that section applies namely a quantity of cannabis. (at p239)
McTIERNAN J. The accused persons were indicted before the Supreme Court of the Northern Territory for offences against the Customs Act 1901-1971 (Cth). The material provisions are in Div. 2 of Pt XIII of the Act. They are as follows: s. 231 (1)(a)(c); s. 233A; s. 233B(1)(a)(b)(c). It was stated in argument by counsel for the accused that the accused persons were Australians travelling on a British vessel, at the time of the commission of the alleged offences, and were travelling in the direction of Darwin. There were twelve counts in the indictment. All the accused were convicted of the following offences: Assembling for the purpose of preventing the seizure of prohibited imports: s. 231(1)(c) importing into Australia a prohibited import: s. 233B(1)(b); and having a prohibited import in their possession on board a ship without any reasonable excuse: s. 233B(1)(a). The prohibited goods were 31,000 grams of cannabis. The accused, Conn, was also convicted of importing a prohibited import into Australia - s. 233B(1)(b) - and of having a prohibited import in his possession on board a ship - s. 233B(1)(a). The goods in question were 14.8 grams of cannabis resin found on his person. The accused, Corns, the master of the vessel involved, was convicted of knowingly suffering his ship to be used in the importation of goods in contravention of the Act - s. 233A. (at p239)
2. The presiding judge pursuant to s. 72 of the Judiciary Act 1903-1969 (Cth) reserved for the High Court questions of law arising on the trial, which was by jury. It was common ground in the High Court that the evidence proved that the contraventions of the Customs Act 1901-1971 (Cth) charged by the indictment all occurred within a line three miles to sea of the low water mark of the Australian coast. In view of this, it does no seem necessary to deal with questions 1(b) and 4(b). Question 1(a) is as follows:
"1. Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment.
(a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof."
The Australian Parliament has full power to legislate with regard to the acts described by the sections of the Customs Act 1901-1971 (Cth) mentioned above, whether occurring within or outside Australia (Croft v. Dunphy (1933) AC 156 ; Statute of Westminster 1931). The jurisdiction of the Supreme Court of the Northern Territory is defined by s. 15 of the Northern Territory Supreme Court Act 1961-1968 (Cth). It is necessary to refer only to sub-ss. (1) (a), (2) and (3) of this section. These provisions are as follows:
"(1.) The Supreme Court-
(a) has, subject to this and any other Act and to any Ordinance, in
relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before the first day of January, One thousand nine hundred and eleven; . . .
(2.) The jurisdiction of the Supreme Court of South Australia referred to in paragraph (a) of the last preceding sub-section includes jurisdiction that that Court had as federal jurisdiction.
(3.) The jurisdiction of the Supreme Court referred to in sub-section (1) of this section is in addition to the jurisdiction that the Court has under any Imperial Act."
The accused were indicted and tried by the Supreme Court of the Northern Territory in the exercise of the jurisdiction conferred by s. 15. (at p240)
3. It is necessary to refer to Act No. 31 of 1855-1856 (S.A.) entitled "An Act to consolidate the several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia" to ascertain the scope of the criminal jurisdiction of the Supreme Court of South Australia referred to in s. 15 (1) (a). Section 7 of Act No. 31 of 1855-1856 (S.A.) is as follows:
"That the said Court shall be a Court of Record, and shall have cognizance of all pleas, civil, criminal, and mixed, and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as Her Majesty's Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in and for the said Province and its dependencies; and the said Judge so appointed, or hereafter to be appointed as aforesaid, shall have and exercise such and the like jurisdiction and authority in this Province and its dependencies as the Judges of the said Courts of King's Bench, Common Pleas, and Exchequer, or any of them lawfully have and exercise, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the said Supreme Court." (at p241)
4. The crucial question is whether by virtue of this section jurisdiction was conferred upon the Supreme Court of South Australia to hear and determine proceedings for offences committed on the seas bordering South Australia. It did so if the English Courts referred to had at the time of the passing of the Act jurisdiction to try offences committed at sea. It is contended for the accused that this jurisdiction did not pass to the Supreme Court of South Australia by virtue of the provisions of s. 7 of Act No. 31 of 1855-1856 (S.A.). (at p241)
5. Professor Holdsworth in this History of English Law, vol. I., at pp. 550-552, gives an account of the transfer by Parliament of the Admiral's criminal jurisdiction to the courts of common law and the "ordinary justices of over and terminer and gaol delivery". He mentions the following statutes which were referred to in argument: 28 Hen. VIII. c. 15 (1536); 39 George III. c. 37 (1799); 4, 5 Wm IV. c. 36 (1834); and 7, 8 Vict. c. 2 (1844). From these statutes the learned author drew the conclusion that, "The criminal jurisdiction of the Admiralty has thus for almost four centuries been exercised by the judges of the courts of common law". Sir James Fitzjames Stephen in his work History of the Criminal Law of England, Vol. II., at p. 19, said in reference to the statute, 28 Hen. VIII. c. 15 (1536) "the change made by this statute has formed the foundation of subsequent legislation . . . . which has ultimately produced the simple result that all crimes committed at sea can be tried before any court in England, otherwise competent, before which the offender may be brought . . ." If follows that the criminal jurisdiction formerly exercised by the Admiral which was transferred to the courts of common law is embraced by the words of s. 7 of Act No. 31 of 1855-1856 (S.A.), namely, "the said Court . . . . shall have . . . . criminal . . . . jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as Her Majesty's Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in and for the said Province and its dependencies". ("Province" means, of course, South Australia.) I think it follows that by reason of s. 7, the Supreme Court of South Australia would as a court of common law, have jurisdiction to hear and determine proceedings for an offence against South Australian law committed at sea, and that by reason of s. 39(2) of the Judiciary Act 1903-1910 (Cth) the South Australian Supreme Court had a like jurisdiction to hear and determine an offence against a Commonwealth law committed at sea. (at p242)
6. By reason of s. 15(2) of the Northern Territory Supreme Court Act 1961-1968 (Cth) the Supreme Court of the Northern Territory was invested with jurisdiction to try the accused for each offence against the Customs Act 1901-1971 (Cth). (at p242)
7. I would therefore answer question 1(a) "Yes". (at p242)
8. It is unnecessary to answer question 1(b). (at p242)
9. The view which I take of the jurisdiction of the Supreme Court of the Northern Territory requires the answer to question 2 to be that the indictment is a matter in the "ordinary jurisdiction" of the Court. (at p242)
10. As regards question 3, it does not seem to me that this question arises for determination. Question 4(a) reads:
"4. Does the Customs Act 1901-1971 extend to the said offences. (a) If they were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof".
If the purpose of the question is to raise the point whether the Customs Act 1901-1971 (Cth) can validly apply to the acts constituting the said offences, I would say that there is no doubt that it can apply to such acts. On the other hand, if the point raised is whether the Act upon its true construction applies to such acts, I think the answer is clearly "Yes". (at p242)
11. It is unnecessary to answer question 4(b). (at p242)
"5. If prohibited imports are voluntarily brought from a point outside a line three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971." (at p242)
13. It appears from s. 185 of the Act that the Customs Act 1901-1971 (Cth) operates in relation to goods which are being imported into Australia by a ship when the ship comes within three nautical miles of the coast. If the goods are prohibited imports, they come within the operation of s. 233B and the person who is importing them may be liable under the section. (at p243)
14. I think that question 5 should be answered in the affirmative. (at p243)
15. For these reasons my answers to the questions are as follows: 1.(a) Yes. (b) Unnecessary to answer. 2. The matter is within the ordinary jurisdiction of the Supreme Court of the Northern Territory. 3. This question does not arise. 4.(a) Yes. (b) Unnecessary to answer. 5. Yes. (at p243)
MENZIES J. In the Supreme Court of the Northern Territory four men were convicted of offences under the Customs Act 1901-1971 (Cth) arising out of the interception of the ship Mariana on the sea off the coast of the Northern Territory. Upon that interception by helicopter and launch the accused men threw into the sea 31,000 grams of cannabis - narcotic goods and as such prohibited imports - which were being brought from Bali to Australia. All the accused were convicted of offences: 1. of importing into Australia a prohibited import contrary to s. 233B (1)(b); 2. of being in possession on board a ship of prohibited imports contrary to s. 233B (1)(a); 3. of assembling to prevent the seizure of prohibited imports contrary to s. 231 (1)(c). One of the accused, Conn, was convicted of importing a prohibited import contrary to s. 233B (1)(d) and being in possession on a ship of a prohibited import contrary to s. 233B (1)(a). These two charges relate to 14 grams of cannabis resin which Conn was carrying on his person when he was brought to shore. However, the charge of importing was supported merely by his possession of that cannabis on board the ship. One of the accused, Corns, was convicted of being the master of a ship who knowingly suffered her to be used in the importation of goods contrary to s. 233A. Upon other charges, including charges of attempting to import prohibited imports, either no verdicts were taken or there were acquittals. (at p243)
2. Points of law were prior to verdict reserved for consideration by the full Court of the High Court pursuant to s. 72 of the Judiciary Act. These were as follows:
"1. Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment:
(a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof.
(b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.
2. If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty.
3. If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting.
4. Does the Customs Act 1901-1971 extend to the said offences:
(a) if they were committed in the area between the low water mark off
the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof.
(b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.
5. If prohibited imports are voluntarily brought from a point outside a line three nautical miles from the low water mark off the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971." (at p244)
3. By the verdicts returned it was made apparent that the jury found that the interception took place on the sea within three miles of the coastline. It seems to me that the points of law reserved for this Court should be considered in the light of that determination. (at p244)
4. The first matter to be determined is whether the Supreme Court of the Northern Territory had jurisdiction to try the offenders and convict them of offences against the Customs Act in respect of happenings upon the sea within three miles of the coastline. (at p244)
5. Counsel for the Queen and counsel for the accused both argued the case upon the footing that waters within the three miles of the coast of the Northern Territory and the land thereunder are not part of the Northern Territory. I accept this as the basis upon which this case falls to be decided, particularly having regard to the terms of the Northern Territory Acceptance Act, but I reserve again, as I did in Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 , the question as to the status of the land under the sea off the coast of Australia. (at p244)
6. I am not prepared to conclude without argument that the ordinary laws of a State do not extend to those who commit crimes while sanding on the beach below low water mark, or, that the jurisdiction of the Supreme Court of a State to try a person for a crime so committed is not the ordinary jurisdiction of the court and not its Admiralty jurisdiction with the resultant problems of the law to be applied in the exercise of that jurisdiction. For instance, as at present advised, I am not disposed to think that in trying Plomp for the murder of his wife by drowning her in the sea off the coast of Queensland, and in treating the offence as one against the Criminal Code of Queensland without regard to whether the killing took place above or below low water mark, the Supreme Court of Queensland wa in error, nor was this Court in error on Plomp v. The Queen [1963] HCA 44; (1963) 110 CLR 234 , in confirming the conviction upon the offence as charged. When these problems arise for determination and are argued, that will, I think, be the appropriate time to reach a conclusion upon these important matters, which are not, I think, to be disposed of by obiter dicta. (at p245)
7. The general jurisdiction of the Supreme Court is, in relation to the Territory, that which the Supreme Court of South Australia had on 1st January 1911: Northern Territory Supreme Court Act, s. 15(1).
8. It is my opinion that the Supreme Court of the Northern Territory did have jurisdiction to hear and determine the charges brought against the accused under the Customs Act because the Supreme Court of South Australia had such a jurisdiction before 1st January 1911 by virtue of s. 39(2) of the Judiciary Act which comprehends jurisdiction in criminal matters: Adams v. Cleeve [1935] HCA 12; (1935) 53 CLR 185, at p 190 . That section confers upon the several courts of the States within the limits of their several jurisdictions, federal jurisdiction (inter alia) in any matter arising under any law made by the Parliament. Accordingly, this jurisdiction was given to the Supreme Court of the Northern Territory in relation to the Territory by s. 15 of the Northern Territory Supreme Court Act, 1961 (Cth). What I have just asserted involves two matters that require discussion. (at p245)
9. The first is that in 1911 there was no limit to the jurisdiction of the Supreme Court of South Australia, as to locality or otherwise, to try offenders against laws made by the Parliament and in particular offences against the Customs Act. It is true that the jurisdiction which that court had by virtue of s. 7 of "An Act to consolidate the several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia" 1855-1856, No. 31 (S.A.), was given by reference to the Province of South Australia and its dependencies. This, however, was not the imposition of a limit as to locality upon the jurisdiction of the court. The court's jurisdiction in the Province and its dependencies was the same as the common law courts at Westminster "lawfully have or hath in England". As the common law courts were courts of unlimited jurisdiction, so the Supreme Court of South Australia became a court of unlimited jurisdiction but with a jurisdiction to be exercised in South Australia and not elsewhere. Furthermore, it was not necessary to distinguish between the power of a judge as a member of a court and the powers of the court. When, therefore, the Supreme Court of South Australia was invested with federal jurisdiction by the Judiciary Act it was given jurisdiction in all matters arising under any laws made by the Parliament. The limits of jurisdiction with which s. 39(2) of the Judiciary Act was concerned are limits within particular States imposed by State laws. The purpose of the words of limitation in s. 39(2) was to keep within any limits of jurisdiction arising from the State laws constituting the several courts; and the intention was, within those limits, to give State courts jurisdiction in matters arising under any law of the Parliament no matter where the acts were done or the events occurred which attracted the operation of that law. Thus, for instance, if a law of the Parliament were to make it an offence for a person, wheresoever he might be, to alter an Australian passport issued to him by the Commonwealth, and offence against that law wherever it was committed could, without any special provision, be heard by the Supreme Court of any State in which the offender might be found. Otherwise it would seem that, without special provision, no court in Australia would have jurisdiction to try a person for such an offence. It should perhaps be observed, however, that there are instances of special provisions being made for the trial of offences against Commonwealth law committed outside Australia. See, for instance, Crimes Act 1914-1966, s. 85E(5). (at p246)
10. The other matter requiring consideration arises of the words in s. 15(1)(a) of the Northern Territory Supreme Court Act, namely "in relation to the Territory". These words do not mean that the jurisdiction of the court is limited to what happens within the Territory. The significance of these words lies in the contrast that there is between "the Territory" and "the State of South Australia". Light is thrown upon what is meant by s. 15(1)(a) by what appears in ss. 15(1)(c), 16 and 17. The Supreme Court of the Northern Territory has, therefore, in relation to the Territory the same jurisdiction as the Supreme Court of South Australia in relation to South Australia. Thus the Supreme Court of the Northern Territory could entertain an action against a person in the Northern Territory by a person outside the Northern Territory in relation to events occurring outside the Northern Territory. Such an action would be "in relation to the Northern Territory" as the words are used in s. 15(1)(a). (at p247)
11. It was argued, however, that the jurisdiction of the Supreme Court of South Australia in 1911 did not extend to trying offences committed upon the sea because of the actual decision of the majority of the court in Reg. v. Keyn (The Franconia) (1876) 2 Ex D 63 . That decision was no more than that, because the Admiralty had no jurisdiction to try offences committed by a foreigner upon a foreign ship upon the high seas even within the three mile limit, the Central Criminal Court did not have that power by virtue of 4 & 5 Wm IV. c. 36 which gave that court power to try "offences committed on the high seas and other places within the jurisdiction of the Admiralty of England". Although, as previously indicated, I would not without full argument accept all of what was said by the majority, I would now say that it appears to me that it would be a far-reaching extension of the decision of the majority to conclude that the common law courts had no jurisdiction to try offences committed at any place below the low water mark upon the English coast. However that may be, the Supreme Court of South Australia did have in 1911 the jurisdiction conferred by s. 1 of 12 & 13 Vict. c. 96. That section, relating to specified offences and other offences "of whatever nature or kind soever", provides inter alia that a person charged with such an offence committed on the high seas may be brought to trial in a colony and that the courts of the colony shall have the same jurisdiction as if the offence had been committed, and the person had been charged with committing it, within the local jurisdiction of the courts of criminal justice in the colony. It is true that in Reg. v. Mount (1975) L.R. 6 P.C. 283 it was said that the powers conferred by s. 1 of this statute, because of the terms of s. 2, should be regarded as no more than the power to try offences properly cognizable in England, but when s. 2 was in 1874 superseded by s. 3 of 37 & 38 Vict. c. 27 there seems to me to be no reason whatever for not giving the words of s. 1 their plain, literal meaning. Accordingly, apart from anything else, after 1874 the Supreme Court of South Australia had jurisdiction to try persons charged before it with the commission of any offence upon the sea. There was, therefore, no limit as to the locality upon the jurisdiction of the Supreme Court of South Australia which would prevent s. 39(2) of the Judiciary Act from giving federal jurisdiction to try offences against the Customs Act committed upon the high seas. (at p248)
12. Concluding as I do that the Supreme Court of the Northern Territory had jurisdiction to try the offenders for the offences charged by virtue of the combined operation of s. 1 of 12 & 13 Vict. c. 39, the Supreme Court Act 1878 (S.A.) and the Judiciary Act, it becomes unnecessary to consider whether or not there may be some other source of jurisdiction that might be relied upon. (at p248)
13. Accordingly, I answer the questions relating to jurisdiction as follows: 1. (a) Yes. (b) Unnecessary to answer. 2. The jurisdiction to hear and determine the charges is part of the ordinary jurisdiction of the court. 3. Not necessary to answer. (at p248)
14. The fourth and fifth questions should, I think, having regard to the finding that the interception took place within the three mile limit, be treated as limited by that circumstance and should be regarded as asking whether or not the offences upon which there were convictions were committed by bringing the prohibited imports within the three mile limit, by having them in possession upon a ship within that limit, or by assembling within that limit to prevent their seizure. (at p248)
15. Upon the basis which the matter was argued and upon which I have already stated, it is my opinion that the cannabis was not imported when the ship travelled from outside the three mile limit into the three mile limit. I am not in doubt that the power of the Parliament to legislate in relation to imports would extend to making laws prohibiting the bringing of goods into the three mile limit but I do not consider that this power has been exercised by the Customs Act as it presently stands. The word "import" is not defined. It is my opinion, upon a survey of the Act as a whole, that importing by a ship constitutes either landing goods or bringing them into port. Our attention was drawn by counsel for the Queen to a number of provisions of the Act conferring powers in relation to ships within the three mile limit, but, in my opinion, these conditions do not warrant the conclusion that goods are imported by being brought within that limit. Accordingly, I consider that the convictions for importing prohibited goods by bringing them within the three mile limit were going. (at p248)
16. The provisions relied upon by counsel for the Queen do, however, warrant the conclusion that it is an offence against the Act to have possession on board a ship within the three mile limit of goods to which s. 233B applies. (at p249)
17. It is an unnecessary task to determine the furthest point from the coast at which the possession of prohibited imports upon a ship approaching Australia constitutes an offence under the Customs Act, but it does seem to me that possession of goods on a ship at a time when the ship is subject to the provisions of the Customs Act does constitute an offence under s. 233B (1)(a). Sections 59, 184 to 190 and 228 (2), (3) and (6), which all indicate that once past a line three nautical miles from the coast a ship may be searched and goods seized, justify the conclusion that a person, in possession of prohibited imports within that limit, does commit an offence. I would hold, therefore, that s. 233B (1)(a) and s. 233B (1)(c) indicates that the former provision does apply at some point prior to importation. This being so, I think it can be decided with assurance that s. 233B (1)(a) does apply when a ship is within the three mile limit. (at p249)
18. I would therefore answer question 4(a) to the effect that an offence under s. 233B (1)(a) is committed if a person has, without reasonable excuse, goods in his possession upon a ship within three nautical miles of the coast when the import of those goods is prohibited by s. 233B. Furthermore, in my opinion, the cannabis on board the Mariana was a prohibited import notwithstanding that it has not been imported. Of course it would have continued to be a prohibited import after importation, but when a statute prohibits the import of goods, such goods cannot lawfully be brought into Australia. Their importation is prohibited and they are prohibited imports. The point outside Australia at which those having possession of them become subject to the operation of Australian law is, as I have already said, a different matter. It should perhaps be observed too that the view I take would not require any goods which are in Australia but have not been imported into Australia to be classed as prohibited imports. Question 4(b) need not be answered. Question 5 should be answered but merely to say that to bring goods across a line within three nautical miles of the coast is not to import them within the meaning of s. 233B. (at p249)
19. Because the accused have not been convicted of the offence of attempting to import prohibited imports, to which s. 233B applies, I do not think it necessary to deal with whether or not they could have been convicted of so doing by bringing them by ship from a point outside a line three nautical miles off the low water mark of the coast to a point within that line. It seems that the jury were satisfied that the offence of assembling to prevent the seizure of prohibited imports took place within the three mile limit. If that be so, I think that in law there was an offence against s. 231(1)(c) because such an assembly within the three mile limit would be within the scope of the Customs Act for the same reasons as I have found that having goods in possession within the three mile limit is within the scope of the Act. Accordingly, in further answer to question 4(a), I would say that an offence under s. 231(1)(c) was committed by an assembly within the three mile limit for the purpose of preventing the seizure of prohibited imports. (at p250)
20. The conviction of the master for an offence against s. 233A was, it seems, based upon the conclusion that cannabis was imported by being brought across the three mile limit. If so, it was, for reasons already given, wrong. (at p250)
21. For these reasons I would answer the questions of law reserved for this Court as follows: 1. (a) Yes. (b) Unnecessary to answer. 2. The jurisdiction to hear and determine the charges is part of the ordinary jurisdiction of the court. 3. Not necessary to answer. 4. (a) An offence against s. 233B (1)(a) of the Customs Act is committed if a person has, without reasonable excuse, prohibited imports in his possession upon a ship within three nautical miles of the coast. An offence against s. 231(1)(c) is committed if persons assemble, within three nautical miles of the coast, for the purpose of preventing the seizure of prohibited imports. It is unnecessary to decide whether an offence of attempting to import prohibited goods contrary to s. 233B (1)(b) is committed if a person brings prohibited imports by ship to a point within three nautical miles of the coast. (b) Unnecessary to answer. 5. To bring goods across a line three nautical miles from the coast is not to import them within the meaning of s. 233B. (at p250)
GIBBS J. Four accused persons, Bull, Plithakis, Conn and Corns, have,after a trial on indictment in the Supreme Court of the Northern Territory, been convicted of the following offences against the Customs Act 1901-1971 (Cth) ("the Act"): 1. Importing into Australia prohibited imports contrary to s. 233B (1)(b) of the Act; 2. Without any reasonable excuse having in their possession, on board a ship, prohibited imports contrary to s. 233B(1)(a); 3. Assembling for the purpose of preventing the seizure of prohibited imports contrary to s. 231(1)(c). The prohibited imports referred to in each of these charges comprised 31,000 grams of cannabis. One of the accused persons, Conn, was also convicted on two further charges, laid under s. 233B(1)(b) and s. 233B(1)(a) respectively, of importing a prohibited import (namely, 14.8 grams of cannabis resin) and of having the said prohibited import in his possession on a ship, and another accused, Corns, was convicted on a charge that being the master of a ship he knowingly suffered her to be used in the importation of goods (namely, 31,000 grams of cannabis) contrary to s. 233A of the Act. The jury returned no verdict on certain other charges; of these it is only necessary to mention charges under s. 233B(1)(b) of attempting to import prohibited imports, laid respectively against all four accused in respect of 31,000 grams of cannabis and against Conn in respect of 14.8 grams of cannabis resin. Before verdict the learned trial judge was requested to reserve certain questions of law for the consideration of this Court, and in conformity with s. 72 of the Judiciary Act he has stated in a case the questions of law so reserved and the special circumstances upon which they arose. (at p251)
2. The circumstances of the case may be briefly stated. On or about 1st March 1973 the Mariana, a British ship of which Corns was the master, was intercepted off the coast of the Northern Territory. At the time of the interception a large quantity of marihuana was thrown overboard - it included the 31,000 grams in respect of which the charges against the four accused, and against Corns, were laid. It was later found that Conn had 14.8 grams of cannabis resin on his person. The offences of assembling and importing, as well as those of unlawfully having possession on a ship, were all alleged to have been constituted by acts done on the ship at or before the time of the interception. At the trial there was a conflict of evidence as to whether at the relevant time the Mariana was within the three-mile limit, but it is now conceded that having regard to the directions given by the learned trial judge in his summing up, it must be taken that the jury found that the material events occurred within three miles of the coast of the Northern Territory. In view of this finding it is unnecessary to consider such of the questions as were framed on the hypothesis that the offences were committed beyond the three-mile limit. In substance the questions that now fall for decision are first, whether offences against ss. 231(1)(c) and 233B (1)(a) can be committed if the assembly or possession, as the case may be, occurs off the Australian coast between low water mark and a line three nautical miles to seaward thereof, secondly, whether the goods are imported within s. 233B(1)(b) or an importation of goods occurs within s. 233A if the goods are brought within three miles of the coast but are not brought to shore or within the limits of a port, and thirdly, whether the Supreme Court of the Northern Territory had jurisdiction to try the accused persons for the offences of which they were convicted. (at p252)
3. No question arises in the present case as to the scope of the legislative power of the Commonwealth. It was not, and could not be, suggested that s. 231(1)(c) and 233B(1)(a) would be beyond power if they applied to acts done at sea between low water mark and the three-mile limit or that the Commonwealth Parliament could not validly provide that importation for the purpose of the Act occurs when goods are brought across a line three miles from the coast. The questions are simply questions of construction, and in answering them it is necessary to pay due regard to the objects of the statute and to the context which is afforded by its provisions as a whole. (at p252)
"All persons to the number of two or more assembled for the purpose of -
(a) importing prohibited imports; or
(b) smuggling; or
(c) preventing the seizure, or rescuing after seizure, of any prohibited
imports or smuggled goods, shall be guilty of an offence . . ." (at p252)
5. When the Act was first passed, it was unlikely that goods could have been imported or smuggled into Australia except from the sea. They are still commonly so imported and, it may be supposed, smuggled. Persons who wished to import prohibited imports or to smuggle goods might therefore have been expected to assemble on the sea on those occasions when this might enable them to achieve their unlawful ends. Moreover, the seizure of prohibited imports or smuggled goods may take place on the sea. Prohibited imports and smuggled goods are forfeited to the Crown under s. 229(a) and (b) and are therefore liable to seizure under s. 203. The power given by that section is to seize (inter alia) any forfeited goods "upon land or water". The natural meaning of those words would include the sea as well as inland waters and the provisions of other sections of the Act, to which I shall shortly refer, support the conclusion that this meaning was intended. It would therefore be likely that persons desiring to prevent the seizure of prohibited imports or smuggled goods would on occasion assemble on the sea for this purpose, as the accused persons in fact did in the present case. The words of s. 231(1) are wide enough to include an assembly on the sea, and having regard to the objects of the section, no reason exists to give those words a restricted meaning. (at p253)
6. The context provided by the other sections of the Act fully supports this view. The power to board ships given by the Act clearly extends to ships arriving within three nautical miles of the coast - see ss. 59 and 185. Moreover, ships or boats found within three nautical miles of the coast are forfeited if they fail to bring to for boarding upon being lawfully required to do so, or if they hover and do not depart within twelve hours after being required to do so (in which case the cargo also is forfeited), or if they have hiding places or devices adapted for the purpose of running goods - s. 228(2), (3), (6); s. 229(k). In the light of these express provisions it cannot be doubted that the more general powers given by the Act to board, search and seize ships extend to vessels within the three-mile limit or that the provisions of s. 231(1) are intended to extend to an assembly within the three-mile limit. (at p253)
7. Section 233B(1) provides (inter alia) that any person who - "(a) without any reasonable excuse (proof whereof shall lie upon him) has in his possession, on board any ship or aircraft, any prohibited imports to which this section applies" shall be guilty of an offence. I can see no justification for construing this provision as referring only to possession on a ship in a river or other enclosed water, and for reasons similar to those given in relation to s. 231(1) I consider that no such restriction of the general words of the section was intended. The fact that s. 233B(1)(c) is expressly limited to possession of prohibited imports "which have been imported into Australia in contravention of this Act" supports the view that s. 233B(1)(a) is not limited to possession of prohibited imports which have been imported into Australia, but applies to such possession in any place to which the Act extends, including the waters within a distance of three nautical miles from the coast. (at p253)
8. For these reasons, in my judgment, offences against ss. 231(1)(c) and 233B(1)(a) are committed notwithstanding that the acts done in contravention of those sections occurred at sea within three nautical miles of the coast of Australia. (at p253)
9. The question that next falls to be considered is whether goods are imported within s. 233B(1)(b), or importation occurs within s. 233A, when the goods are brought across a line three nautical miles from the coast of Australia. Section 233B(1) further provides (inter alia) that any person who - "(b) imports, or attempts to import, into Australia any prohibited imports to which this section applies" shall be guilty of an offence, and s. 233A(1) reads as follows:
"The master of a ship or boat or the pilot of an aircraft shall not use his ship boat or aircraft, or knowingly suffer her to be used, in smuggling, or in the importation of any goods in contravention of this Act, or in the exportation or conveyance of any goods in contravention of this Act." (at p254)
10. No definition of "import" or of any derivative of the word is contained in the Act. Its ordinary dictionary meaning is "To bring in, or cause to be brought in (goods or merchandise) from a foreign country, in international commerce" (Oxford English Dictionary). In accordance with this meaning it has been said that the word "import" in various sections of the Act means "bring in to the Commonwealth": Lyons v. Smart [1908] HCA 34; (1908) 6 CLR 143, at p 150 ; Election Importing Co. Pty Ltd v. Courtice [1949] HCA 20; (1949) 80 CLR 657, at p 662 . On the basis of these statements, and on the assumption that Australia includes the surrounding sea at least to a distance of three nautical miles, it was submitted by the Crown that to bring goods across the three-mile limit is to bring them into Australia and therefore to import them. However, whether or not the sea within three nautical miles of the coast should be regarded as part of Australia for other purposes, it is, in my opinion, clear that goods are not imported simply by bringing them within the three-mile limit. It does not conform to ordinary usage to say that goods are imported into a place if they are brought there in the course of transit but with no intention that they should be unloaded there. For example, in ordinary understanding goods would not be thought to have been imported into Australia if they were carried through the waters within three miles of the Australian coast by a ship which did not put into port. Even if goods are brought into port they are not necessarily imported; for example, a cargo being carried from England to New Zealand is not imported into Australia when the ship on which it is carried puts into an Australian port en route: Wilson v. Chambers & Co. Pty Ltd [1926] HCA 15; (1926) 38 CLR 131, at pp 138-139, 147, 150 . Similarly, goods are not "imported into a harbour" by being carried through the limits of the harbour and then landed elsewhere: Wilson v. Robertson (1855) 24 LJQB 185 . However, if goods are brought into port with the intention of being discharged there they are imported: Wilson v. Chambers & Co. Pty Ltd (1926) 38 CLR, at pp 136, 147, 150 ; and see also Forbes v. Traders Finance Corporation Ltd [1971] HCA 60; (1971) 126 CLR 429, at pp 443-444 . The words of the Act themselves make it clear that the mere entry into port is not necessarily an importation. Section 30 provides (inter alia) that goods shall be subject to the control of Customs - "(a) as to all goods imported - from the time of importation . . ." However, s. 31 provides (inter alia) that all goods on board any ship from parts beyond the seas shall be subject to the control of Customs while the ship is within the limits of any port in Australia. If goods were imported once a vessel entered port, the provisions of s. 31 to which I have just referred would be quite unnecessary. Of course it is not necessary, to constitute an importation, that the goods should be brought into port - they may be landed in some other way. The remarks made by Isaacs J. in Wilson v. Chambers & Co. Pty Ltd (1926) 38 CLR, at p 139 with regard to s. 68 appear to be a correct general statement of the meaning of importation for the purposes of the Act. After saying that "the expression 'imported goods', in s. 68, means goods which in fact are brought from abroad into Australian territory, and in respect of which the carriage is ended or its continuity in some way in fact broken", Isaacs J. went on to say (1926) 38 CLR, at p 139 :
"The underlying concept appears to me to be as follows: Where, within our territory, some act takes place with regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination and would therefore result in the goods remaining in Australia, then they are 'imported goods' and it is the duty of the 'owner' to comply with the provisions of s. 68." (at p255)
11. In the present case the ship was intercepted before it reached its destination and before it had entered port or arrived at the place where it was intended to land the goods. For the reasons I have given, the goods were not imported when they were brought on the ship across a line three nautical miles from the coast and to the place of interception. The fact that the goods were thrown into the sea - with the obvious intention of abandoning and destroying them - did not in my opinion mean that they were thereupon imported. (at p255)
12. The convictions under ss. 233B(1)(b) and 233A therefore cannot stand and should be set aside under the power given by s. 73(b) of the Judiciary Act. (at p255)
13. It seems probable that the jury returned no verdict on the charges of attempting to import because they were alternative to the charges of importing of which the accused were found guilty. Counsel for the Crown accordingly submitted that we should direct a verdict of guilty to be entered on the former charges if we held that the convictions on the latter must be set aside. To maintain this submission it is necessary to establish that an attempt to import which constitutes an offence against s. 233B(1)(b) of the Act can be constituted by acts committed on the waters within three miles of the coast, that in fact the actions of the accused amounted to an attempt to import, that s. 73 of the Judiciary Act gives power to order that a verdict of guilty be entered in an appropriate case and that such power ought to be exercised. In my opinion the context and policy of the Act support the view that if acts are done which constitute an attempt to import prohibited imports, an offence against the section will be committed notwithstanding that the attempt takes place on the sea below low water mark at least if within three miles of the coast. However, the case stated does not reveal whether what was done by the accused could reasonably have been regarded by a jury as an attempt to import prohibited imports. Under s. 73 of the Judiciary Act the Court may send a case back to be amended or restated, but in my opinion we should not take that course here. The accused have been convicted of offences which arise out of the same circumstances as do the alleged attempts. The ends of justice will be sufficiently served if the accused are punished for those offences of which they have been convicted and it is unnecessary to enquire whether, if the accused had not been convicted of those other offences, it would have been possible and appropriate to direct convictions to be entered on the charges of attempting to import or whether we would have exercised the power given by s. 73(e) of the Judiciary Act to order a new trial of those charges. (at p256)
14. The final question that arises is whether the Supreme Court of the Northern Territory ("the Supreme Court") had jurisdiction to hear and determine the charges of which the accused were convicted. (at p256)
15. The Supreme Court is constituted by the Northern Territory Supreme Court Act 1961-1971 (Cth). It is not expressly invested with jurisdiction to try persons charged with offences against Commonwealth laws. Jurisdiction is conferred upon it by s. 15 of the Northern Territory Supreme Court Act whose provisions, so far as they are material, are as follows:
"15.(1) The Supreme Court -
(a) has, subject to this and any other Act and to any Ordinance, in
relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before the first day of January, One thousand nine hundred and eleven;
(2) The jurisdiction of the Supreme Court of South Australia referred to in paragraph (a) of the last preceding sub-section includes jurisdiction that that Court had as federal jurisdiction.
(3) The jurisdiction of the Supreme Court referred to in sub-section (1) of this section is in addition to the jurisdiction that the Court has under any Imperial Act."
The expression "the Territory" is defined by s. 5 to mean "the territory accepted by the Commonwealth as a Territory under the authority of the Commonwealth in pursuance of the Northern Territory Acceptance Act 1910 by the name of the Northern Territory of Australia . . ." The Territory accepted by the Commonwealth under the Northern Territory Acceptance Act 1910 was:
"that part of Australia which lies to the northward of the twenty-sixth parallel of South Latitude and between the one hundred and twenty-ninth and one hundred and thirty-eighth degrees of East Longitude, together with the bays and gulfs therein, and all and every the islands adjacent to any part of the mainland within such limits as aforesaid, with their rights, members, and appurtenances."
16. It was submitted on behalf of the Crown that the Supreme Court had jurisdiction in the present case because the Supreme Court of South Australia had, in relation to the State of South Australia, immediately before 1st January 1911, federal jurisdiction to try offenders against laws of the Commonwealth. The federal jurisdiction which was possessed by the Supreme Court of South Australia at the relevant date was that conferred upon it by the Judiciary Act 1903-1910 (Cth). The material provisions of that Act, those of ss. 39(2) and 68(2), have been amended in some respects since 1911, but the amendments do not affect the present question. By s. 39(2), subject to certain conditions and restrictions which are not material, it was (and is) provided as follows:
"The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it . . . "
Under s. 76 (ii) of the Constitution original jurisdiction can be conferred on the High Court in any matter arising under any laws made by the Parliament. Therefore s. 39(2) invests the several courts of the States with federal jurisdiction in any matter arising under any Commonwealth law, including the Customs Act. The federal jurisdiction is conferred on the State courts only "within the limits of their several jurisdictions". This provision of course cannot mean that a State court can only be invested with federal jurisdiction to deal with a matter if it already has jurisdiction under State law to deal with that very matter. It "must be construed as relating to matters arising under federal Statutes, and being of a nature analogous to those over which such Courts respectively have jurisdiction under State laws, and as also including any other matters in respect of which jurisdiction is conferred by a federal Statute, but so that in all respects other than subject matter the provisions of the State law . . . shall prevail": Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v. Alexander [1912] HCA 42; (1912) 15 CLR 308, at p 312 . Although s. 39(2) is an ambulatory provision, and the limits to which it refers are those "which State law may prescribe from time to time for the State jurisdiction of those courts" (The Commonwealth v. District Court at Sydney [1954] HCA 13; (1954) 90 CLR 13, at p 22 ), the limits with which we are concerned in the present case are those prescribed immediately before 1st January 1911. The jurisdiction conferred by s. 39(2) is not limited except by the limits of the jurisdiction of the State court concerned and therefore, in the case of a Supreme Court, may include criminal as well as civil jurisdiction. It is true that a further grant of jurisdiction in criminal cases is made by s. 68(2) of the Judiciary Act. By that section the several courts of the States exercising jurisdiction with regard (inter alia) to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the States "shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere". However, s. 68(2) does not exclude the operation of s. 39(2) in criminal cases (cf. Adams v. Cleeve [1935] HCA 12; (1935) 53 CLR 185, at p 190 ); each section independently invests State courts with federal jurisdiction. Section 68(2) confers on a State court "a jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State" (Williams v. The King (No. 1) [1933] HCA 54; (1933) 50 CLR 536, at p 543 ), but it is of course only exercisable if the alleged offence against Commonwealth law was committed within the State or the offender may lawfully be tried within the State when the offence was committed elsewhere. It may be that from a practical point of view in a case like the present s. 68(2) requires a court to have regard to much the same considerations as those raised by s. 39(2) but since, for the reasons I am about to give, I have reached the conclusion that the Supreme Court of South Australia was invested by s. 39(2) with the relevant federal jurisdiction, it is unnecessary to consider whether s. 68(2) also had the effect of investing it with jurisdiction. (at p259)
17. The question, then, in the present case is whether immediately before 1st January 1911 it was within the limits of the jurisdiction of the Supreme Court of South Australia to try on indictment a person charged with offences analogous to those the subject of the present charges and committed at sea below low water mark but within three miles of the coast of the State. (at p259)
18. At the relevant date the Supreme Court of South Australia was granted powers and jurisdiction by a number of statutes of that State which were ultimately repealed by the Supreme Court Act, 1935 (S.A.). Of those statutory provisions it is enough to refer to s. 7 of "An Act to consolidate the several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia" (No. 31 of 1856) which provided as follows:
"That the said Court shall be a Court of Record, and shall have cognizance of all pleas, civil, criminal, and mixed, and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as Her Majesty's Court of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in an for the said Province and its dependencies; and the said Judge so appointed or hereafter to be appointed as aforesaid, shall have and exercise such and the like jurisdiction and authority in this Province and its dependencies as the Judges of the said courts of King's Bench, Common Pleas, and Exchequer, or any of them lawfully have and exercise, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the said Supreme Court." (at p259)
19. The Court of King's Bench had a jurisdiction that was "general and universal" and held cognizance of all pleas of the Crown, although in practice it did not commonly try ordinary criminal cases (Holdsworth, History of English Law, vol. I, p. 212). However, it was submitted on behalf of the accused that the jurisdiction of that Court and of the other common law courts mentioned in s. 7 was limited as to locality and that no common law court had jurisdiction to try an offence committed at sea. Therefore, it was said, the jurisdiction of the Supreme Court of South Australia was similarly limited and although it was conceded that by a succession of statutory provisions the Supreme Court was empowered to deal with certain offences committed at sea, that power, so it was submitted, was limited to offences against the law of England and to offences of a kind in no way analogous to breaches of a Customs Act. It was involved in these submissions that the sea bounding the coast of South Australia and lying between low water mark and the three-mile limit was no part of the territory of that State. This latter submission raises a question of the greatest public importance, but in my opinion it is not necessary to deal with it for the purpose of deciding the present case. The Court may on some future occasion be called upon to determine whether the sea or the seabed within three miles of the coast of a State forms part of that State and I would leave that question, which I regard as a completely open one, for consideration until that occasion does arise. I would accordingly express no opinion on the correctness of the observations directed to that matter in such cases as Reg. v. Keyn (1876) 2 Ex D 63 ; Secretary of State for India v. Sri Rajah Chelikani Rama Rao (1916) 85 LJPC 222 ; and Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 . We are now concerned with the limits of the jurisdiction of the Supreme Court of South Australia at the relevant date rather than with the limits of the territory of that State.
20. It is true that by the fourteenth century the criminal jurisdiction of the Court of the Admiral had come to be recognised as exclusive on the high seas and (at p260) 20. that the criminal jurisdiction of the common law courts then did not extend below low water mark (Holdsworth, op. cit., p. 550). However, a course of legislation commencing in the reign of Henry VIII and ending in the nineteenth century ultimately produced what Sir James Fitzjames Stephen, writing in 1883, described as "the simple result that all crimes committed at sea can be tried before any court in England, otherwise competent, before which the offender may be brought, or before any Supreme Court in a colony, or any High Court in India" (History of the Criminal Law of England, vol. II, p. 19). Notwithstanding the argument before us, in which we were referred in some detail to this legislation (whose provisions are discussed by Stephen, op. cit., at pp. 16-31), it seems to me unnecessary to consider those statutes by which jurisdiction over offences committed at sea was conferred on the common law courts in England. It is sufficient to refer to two statutes which conferred jurisdiction directly on the colonial courts and whose effect, in my opinion, was to invest the Supreme Court of South Australia with criminal jurisdiction in respect of all crimes committed at sea. The first of these statues, "An Act to provide for the Prosecution and Trial in Her Majesty's Colonies of Offences committed within the Jurisdiction of the Admiralty" (12 & 13 Vict. c. 96), passed in 1849, provided by s. I as follows:
"That if any person within any colony shall be charged with the commission of any treason, piracy, felony, robbery, murder, conspiracy, or other offence, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or if any person charged with the commission of any such offence upon the sea, or in any such haven, river, creek, or place shall be brought for trial to any colony, then and in every such case all Magistrates, Justices of the Peace, public prosecutors, juries, Judges, Courts, public officers, and other persons in such colony shall have and exercise the same jurisdiction and authorities for inquiring of, trying, hearing, determining, and adjudging such offences, and they are hereby respectively authorized, empowered, and required to institute and carry on all such proceedings for the bringing of such person so charged as aforesaid to trial, and for and auxiliary to and consequent upon the trial of any such person for any such offence wherewith he may be charged as aforesaid, as by the law of such colony would and ought to have been had and exercised or instituted and carried on by them respectively if such offence had been committed, and such person had been charged with having committed the same, upon any waters situate within the limits of any such colony, and within the limits of the local jurisdiction of the courts of criminal justice of such colony."
It was, however, provided by s. II of that statute that persons convicted were to be punished as if the offence had been committed, and the offender tried, in England and it was said in Reg. v. Mount (1875) LR 6 PC 283, at p 301 , that the Imperial Legislature by this statute "was conferring power upon the colonies to try offences properly cognizable in England, with the consequences which would have attended a trial there". Possibly in consequence of the controversy resolved by the decision of the Judicial Committee in Reg. v. Mount (1875) LR 6 PC 283 , the Courts (Colonial Jurisdiction) Act, 1874 (37 & 38 Vict. c. 27) was passed. By s. 3 of the Act it was provided that when a person is tried in a colonial court "for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court" the offender shall upon conviction "be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court". The section contained a proviso that if the crime or offence is one not punishable by the law of the colony in which the trial takes place, the offender is liable on conviction to "such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England". In my opinion the effect of this statute was not only to substitute the punishment provided by colonial law for that provided by English law as that to be inflicted in the case for which the statute provided but also to remove any basis for holding that the jurisdiction conferred by the Act of 1849 was only to try offences against the law of England; that conclusion had been reached in Reg. v. Mount (1875) LR 6 PC 283 in reliance on the provisions of s. II of the Act of 1849, but that section was impliedly repealed by the Act of 1874. The provisions of s. I of the Act of 1849 are expressed in the widest terms; they refer to "any . . . offence, of what nature or kind soever" and after the passing of the Act of 1874 there was no justification for giving those words a limited meaning. In my opinion, the effect of these statutes was to give to the relevant colonial courts, and in particular to the Supreme Court of South Australia, criminal jurisdiction in cases of offences committed on the high seas, whether they were offences against English or against colonial law. Further, in my opinion, the decision in Reg. v. Keyn (1876) 2 Ex D 63 that the Admiral had no jurisdiction to try an offence committed by a foreigner on a foreign ship within a marine league of the coast, and that therefore the English courts on which the Admiral's jurisdiction was conferred had no such jurisdiction, has no application to the statutes of 1849 and 1874. Notwithstanding the title of the earlier Act, neither of those statutes purported to confer on the colonial courts the jurisdiction of the Admiralty. Section I of the Act of 1849 spoke, in the alternative, of any offence committed at sea or in a place where the Admiral has jurisdiction; if the offence is committed at sea and the offender is within the colony or brought for trial there, the colonial court has jurisdiction to deal with the charge in the same way as if the offence had been committed on waters within the limits of the colony and of the local jurisdiction of its criminal courts. It is accordingly unnecessary to consider the provisions of the Territorial Waters Jurisdiction Act, 1878 (Imp.) or those of the Colonial Courts of Admiralty Act of 1890 (imp.). The effect of the statutes of 1849 and 1874, which are still in force, is (inter alia) to confer directly upon the Supreme Court of South Australia jurisdiction to try a person brought before that Court for any offence against the law of the State committed at sea. No reason exists to except statutory offences from the generality of this bestowal of jurisdiction, and before federation the Supreme Court of South Australia therefore had jurisdiction in respect of offences against the customs legislation of that colony committed upon the sea. It was accordingly within the limits of the jurisdiction of the Supreme Court of South Australia immediately before 1st January 1911 to try an offender brought before that Court charged with an offence analogous to offences against the Customs Act if committed at sea. The effect of s. 39(2) of the Judiciary Act was therefore to invest the Supreme Court of South Australia with federal jurisdiction to try persons brought before that Court and charged with offences against the Customs Act committed at sea. By s. 15 of the Northern Territory Supreme Court Act, the Supreme Court of the Northern Territory is then given federal jurisdiction in the present case. (at p263)
21. If I had reached a different conclusion as to the effect of the Imperial statutes of 1849 and 1874 I should have found it necessary to make an examination of the statutes of South Australia in force immediately before 1st January 1911 in an attempt to ascertain whether any statutes of that State conferred jurisdiction on the Supreme Court to try particular offences analogous to customs offences, committed at sea. Since Croft v. Dunphy (1933) AC 156 it cannot be doubted that a State has power to enact laws which operate beyond its territorial limits. It is unnecessary here to discuss the extent of that power but it is clear that State laws may, in some cases at least, validly confer jurisdiction on the Supreme Court of the State to try offences committed on the waters within three miles of the coast even if it be assumed (which I do not decide) that those waters do not form part of its territory (cf. Bonser v. La Macchia (1969) 122 CLR, at pp 189, 202, 226 ). In fact by the Customs Act 1864 (S.A.) the Supreme Court of South Australia was given jurisdiction to try certain customs offences committed at sea-see ss. 10, 167, 170, 185, 211. That Act ceased to have effect before 1st January 1911 by virtue of s. 90 of the Constitution but it is probable that other legislation in force at the relevant date gave criminal jurisdiction to the Supreme Court in respect of offences committed at sea - such jurisdiction was conferred on the Supreme Court by later legislation, as is shown by Giles v. Tumminello (1963) SASR 96 . The limits of the jurisdiction of the Supreme Court of South Australia could have been fixed by particular legislation as well as by more general legislation of the kind already discussed. However, as I have said, it is unnecessary to pursue this matter. (at p264)
22. I would answer the questions asked as follows:
1. Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment (a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof; (b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast. Answer: (a) Yes. (b) Unnecessary to answer.
2. If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty. Answer: Within the ordinary jurisdiction of the Court.
3. If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting. Answer: Unnecessary to answer.
4. Does the Customs Act 1901-1971 extend to the said offences (a) if they were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof; (b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast. Answer: (a) Yes as to offences under s s. 233B(1)(a) and 231(1)(c); unnecessary to answer as to other offences (b) Unnecessary to answer.
5. If prohibited imports are voluntarily brought from a point outside a line three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971. Answer: No. (at p265)
23. I would order that the convictions of the four accused persons, and of Conn, respectively, on charges of breaches of s. 233B(1)(b) of the Customs Act 1901-1971, and of Corns on a charge of a breach of s. 233A of the said Act, be set aside, and that verdicts of not guilty be entered on those charges. (at p265)
STEPHEN J. The facts of this matter appear in other judgments; I shall accordingly confine myself to the three questions of law which arise for determination. Two of these involve matters of statutory interpretation and can be dealt with quite shortly; they concern the application to the particular facts of the present case of those sections of the Customs Act 1901-1971 relied upon by the prosecution. (at p265)
2. The charges of which the accused were convicted included a charge of importing a prohibited import, a quantity of cannabis, contrary to s. 233B (1)(b) of the Customs Act; one accused was also convicted, as master of a ship, of knowingly suffering her to be used in the importation of goods contrary to s. 233A of the Act. (at p265)
3. Critical to these offences is the concept of importation. These offences, like all the others of which the accused were convicted, arose out of acts of the accused while at sea within three miles of the coast of the Northern Territory and it is this geographical fact that has given rise to the questions of construction which concern all of the offences charged. (at p265)
4. The charges involving importation raise the question whether importation as referred to in the Act may take place long before the goods have been brought within the limits of a port of discharge and as soon as the "territorial sea" is entered. If not, the convictions for offences under s. 233A and s. 233B(1)(b) of the Act cannot stand. (at p265)
5. Neither "import" nor "importation", the words used in these sections, is defined in the Act so as to confer upon them any special meaning, but for the Crown it was submitted that to bring goods within three miles of the Australian coast is to import them into Australia. In my view "import" must be given its ordinary meaning and that meaning does not extend to the carrying of goods across any notional line separating the high seas from the "territorial sea". Whatever may be the status of waters immediately off the Australian coastline they do not, I think, form part of Australia in the sense intended by a reference to the importing of goods into the country, Australia. (at p266)
6. In the judgment of my brother Gibbs is discussed a number of authorities on this matter and the statutory context of the relevant sections is there analysed and with all this I am in agreement. I would only add that in other common law jurisdictions a like view has been taken. Thus in Canada the Nova Scotia Supreme Court in R. v. Jobes (1926) 3 DLR 659 , after a detailed review of the Canadian and United States authorities, concluded, in circumstances strikingly similar to the present, that there was no smuggling, that is importation either in fraud of the revenue or of prohibited articles, when goods were thrown overboard to avoid seizure when the vessel carrying them was detected by Customs some two miles off-shore. In Cunard Steamship Co. v. Mellon [1923] USSC 114; (1923) 27 ALR 1306; 262 US 100 (67 Law Ed 894) , the United States Supreme Court, in a prohibition era case, held that importation into "the United States . . . and all territory subject to the jurisdiction thereof" only arose when there was an actual bringing into the country from the outside, the reference to "territory subject to the jurisdiction" operating however to extend the relevant concept to include the territorial sea. In Canada Sugar Refining Co. v. The Queen (1898) AC 735 the Judicial Committee held that "imported into Canada" meant imported at the port of discharge and at no earlier port of call. Perhaps as satisfactory a description as any of "importation" was that given by Story J. over a hundred and fifty years ago when, in The Schooner "Mary" (1812) 1 Gallison 206 , he said than an importation is "a voluntary arrival within some port with intent to unlade the cargo". (at p266)
7. I accordingly conclude that in the present case there was no relevant importation of cannabis and it follows that the convictions under ss. 233A and 233B (1)(b) must be set aside. (at p266)
8. Each of the accused was also convicted, on one or more counts, of having in his possession on board a ship prohibited imports without any reasonable excuse, contrary to s. 233B (1)(a) of the Customs Act, and of having assembled with others for the purpose of preventing the seizure of prohibited imports, contrary to s. 231 (1)(c) of that Act. As to these convictions the question arises whether these two provisions of the Customs Act apply to such off-shore possession and to such off-shore assembly as was here in issue. (at p266)
9. Assuming for the moment that goods which have not yet been imported into Australia may nevertheless be a "prohibited import", there is nothing in either of these provisions which otherwise expressly restricts their operation to the land mass of Australia; there are, indeed, strong indications to the contrary. Whereas s. 233B (1)(c) makes it an offence to be in possession of prohibited imports "which have been imported into Australia", s. 233B (1)(a), while otherwise dealing with the identical situation, substitutes for these words its own reference to the locality of possession as being "on board any ship or aircraft". I conclude that par. (a) must be understood as dealing with a different situation but different only because the relevant time of possession is one which precedes the time of importation; par. (a) is concerned with possession before importation, precisely the situation in the present case, where the appellants were in possession of cannabis some miles off the Australian coast. Since their ship was then within three nautical miles of the coast it was liable to be stopped and boarded by customs - s. 59(1) - and the provisions of the Customs Act, which in those circumstances confer power upon customs officers over ships and their cargo, give meaning and effectiveness to a sub-section such as s. 233B (1)(a) and to the offence it creates of having possession of a prohibited import on board a ship prior to importation into Australia. My brother Gibbs has, in his reasons for judgment, referred to other provisions of the legislation, particularly applicable to s. 231 (1)(c) but bearing also upon s. 233B (1)(a), all of which do, in my view, confirm the view that each of these provisions is here applicable. (at p267)
10. These sections speak of "prohibited imports"; but the use of this phrase does not, I think, restrict their application to goods which have in fact been imported. By s 50 of the Act the importation of goods may be prohibited absolutely, conditionally or by reference to their place of origin. Goods the importation of which is so prohibited are, by virtue of s. 51, prohibited imports and will, in my view, be so regardless of their location and whether or not they have already wrongfully been introduced into Australia. When a relevant regulation prohibits the importation of a particular description of goods, goods of that description thus becoming a prohibited import, it is inherent in their declaration as prohibited imports that it is goods located overseas that are in question; the purpose is to keep such goods out of the country, to prohibit their importation. Thus primarily the declaration must apply to goods which are abroad. Indeed it must be a characteristic of the goods that they are not of local origin, unless, having been produced in Australia and exported, they are later sought to be imported again into Australia. The very purpose of prohibiting importation is to prevent goods of that particular kind from ever entering Australia; only incidental to the enforcement of that prohibition are the penal provisions, some of which strike at offenders who, despite the prohibition, do in fact introduce such goods into the country while others strike at acts preliminary to importation. The sections here in question are of the latter kind. (at p268)
11. The Customs Act does not however concern itself with the mere possession overseas of such goods but rather with matters more proximate to the evil against which it legislates; in s. 233B (1) it approaches the matter in sequential stages; in par. (a) it deals with possession on board any ship or aircraft; in par. (b) it deals with a later stage, the actual importation into Australia; in par. (c) with the final stage, possession in Australia after importation. Having regard to the control which the Act gives to customs officers of ships within three miles of the Australian coast it must, I think, be concluded that par. (a) deals, at the least, with possession on board ships within those waters which are within three miles of the coast; what its effect may be in the case of more distant ships and aircraft does not presently arise. (at p268)
12. Accordingly I would conclude that both s. 231 (1)(c) and s. 233B (1)(a) were here applicable to the appellants' possession of cannabis. (at p268)
13. The third question relates to the jurisdiction of the Supreme Court of the Northern Territory to hear and determine the charges. Set out in other judgments are the relevant statutory provisions together with analyses of the history both of the origins and development of the Admiral's criminal jurisdiction and of colonial courts of Admiralty and of the origins of the present jurisdiction of the Supreme Court of the Northern Territory, which derives from that possessed by the Supreme Court of South Australia in 1911 including its then federal jurisdiction. (at p268)
14. The thesis propounded on behalf of the accused is that the jurisdiction of the Supreme Court of South Australia in 1911 did not, and hence that the jurisdiction of the Supreme Court of the Northern Territory does not, include any criminal jurisdiction in respect of acts committed at sea unless those acts be offences according to English law. (at p268)
15. It is said that before 1849 colonial courts had no criminal jurisdiction over acts committed at sea except in those instances, of which New South Wales and Van Diemen's Land provide examples, in which a specific grant of the Admiral's criminal jurisdiction had been specially conferred. In the case of South Australia there was no such grant, the jurisdiction which was committed to the Supreme Court of South Australia on its creation by the colonial Act of 1837 being confined, so far as presently relevant, to the jurisdiction exercised by the common law courts of England and not extending to that criminal jurisdiction of the Admiral which had been given to the Central Criminal Court in England three years earlier and which soon afterwards was also conferred upon assize judges in the counties of England. Then, when, in 1849, criminal jurisdiction in Admiralty was, by 12 & 13 Vict. c. 96, conferred upon colonial courts generally, it was confined to a jurisdiction to administer the criminal law of England as applicable to offences upon the high seas - Reg. v. Mount (1875) LR 6 PC 283, at p 301 . The later Imperial legislation, The Courts (Colonial) Jurisdiction Act of 1874, did not by its single positive provision, s. 3, alter this situation; it did no more than legislate concerning the sentences which might be imposed by colonial courts exercising that same jurisdiction. (at p269)
16. With much of this I agree; I believe it to be correct to say that the Admiral's jurisdiction conferred by Imperial legislation upon colonial courts generally, including the Supreme Court of South Australia, was limited to acts committed at sea which were made unlawful by English law and that, for the reasons stated by my brother Mason, the Act of 1974 did not alter this position. Again I accept the submission concerning the nature of the jurisdiction conferred upon the Supreme Court of South Australia when it was created, that it did not carry with it the Admiral's jurisdiction over crimes on the high seas; I do so for the reasons stated in full in other judgments. (at p269)
17. However, accepting so much of the submissions made on behalf of the accused, they do not appear to me to carry the matter to the length required on their behalf. Only if it were necessary in the present case to rely upon some jurisdiction derived from the criminal jurisdiction of the Admiral would it avail them. In my view that jurisdiction is irrelevant in the present case. Without it the Supreme Court of South Australia in 1911 possessed jurisdiction over offences of the nature here in question; that jurisdiction owed nothing to the peculiar criminal jurisdiction of the Admiral but was a product of the legislative powers of the legislatures of the Province, later the State, of South Australia and of the Commonwealth. (at p269)
18. Early in its history the legislature of the Province of South Australia, having power to pass laws for the "peace, order and good government" of the Province, enacted customs legislation containing sections intended for the better protection of the customs revenue, some of which created offences involving conduct on the high seas off the South Australian coast. Such provisions are a commonplace of customs legislation without which its due administration would no doubt be much impeded and are characteristic of customs legislation throughout much of the common law world. In Croft v. Dunphy (1933) AC 156, at p 165 their Lordships said that "from early times the customs legislation of the Imperial Parliament has contained anti-smuggling provisions authorizing the seizure of vessels having dutiable goods on board when found "hovering" off the coast within distances substantially in excess of the ordinary territorial limits"; the customs legislation of the Imperial Parliament has also from early times designated as offences other acts preliminary to smuggling, thereby providing a legislative model for other jurisdictions; the South Australian customs legislation paid regard to this Imperial model when it created offences which might be committed on the high seas within one nautical league seaward from highwater mark - see Customs Act 1864, s. 10 and the numerous penal provisions contained in the 3rd and 12th Divs. of that Act. (at p270)
19. In doing so the legislature of the Province was exercising legislative powers over waters beyond its land boundaries and did so in common with other British possessions in Australasia and North America in a number of areas including those of customs, quarantine and fisheries. Sir Henry Jenkyns, for long Parliamentary Counsel to the Treasury, described such legislation as "rather a local extension of territorial jurisdiction than a true extra-territorial jurisdiction" - British Rule and Jurisdiction Beyond the Seas (1902), at p. 147 - and Professor O'Connell, in his article in The British Year Book of International Law 1958, refers, at p. 224, to "the whole stream of opinions and decisions on the subject of colonial extra-territorial legislative incompetence which assume that there is jurisdiction over territorial waters because these are 'intra-territorial' ". (at p270)
20. Whatever may be the position concerning ownership of submerged off-shore lands around Australia, a matter not arising for decision in the present case, it is well established that the colonies, and later the States and Commonwealth, were competent to legislate in respect of conduct occurring in those waters to the extent necessary to secure the "peace, order and good government" of their respective territories. We are presently concerned only with so-called territorial waters within a league off the coast. In Attorney-General (British Columbia) v. Attorney-General (Canada) (1914) AC 153, at p 174 , their Lordships acknowledged the existence of special powers over such waters "necessary for protective and police purposes", referring to Reg. v. Keyn (1876) 2 Ex D 63 in which members both of the majority and of the minority recognized that within these waters lying up to a league off-shore jurisdiction existed so far as necessary "for the defence and security of the adjacent state" - per Sir Robert Phillimore (1876) 2 Ex D, at p 81 and see per Kelly C.B. (1876) 2 Ex D, at p 151 and per Cockburn L.C.J. (1876) 2 Ex D, at pp 188-189, 206, 216, 230 . In Croft v. Dunphy (1933) AC 156 their Lordships adopted what had earlier been said by Sir Barnes Peacock in Hodge v. The Queen (1883) 9 App Cas 117, at p 132 as to the plenary nature of the legislative power of a Canadian province, applying this a fortiori to the Dominion Parliament whose extra-territorial "hovering" legislation was accordingly held to be valid. In Trustees Executors & Agency Co. Ltd. v. Federal Commissioner of Taxation [1933] HCA 32; (1933) 49 CLR 220, at p 235 , Evatt J. concluded that following Croft v. Dunphy (1933) AC 156 the supposed territorial restrictions upon the legislative powers of the seven Parliaments of Australia should thenceforth be confined "to a very small compass indeed". It suffices to refer, in conclusion, to two passages from the judgments in Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177 . There the Chief Justice said (1969) 122 CLR, at p 189 :
"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 colonies 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." (at p271)
21. Windeyer J. said that he did not question that State law might regulate off-shore fisheries not,
"because of any right either of sovereignty or property in the open seas or the bed of the sea. It is simply that the State legislature is empowered to make laws for the peace, order and good government of the State; and State here means not merely a territory, but a territory inhabited by people as a political community." (1969) 122 CLR, at pp 224-225 (at p271)
22. Thus the legislatures of Australia might validly legislate for the safeguarding of their customs revenues and might do so by attaching to conduct in their off-shore waters the element of criminality. With this legislative power necessarily went curial jurisdiction. The invested Admiralty jurisdiction would have been of no avail since it was concerned only with offences against English law and unless curial jurisdiction were to accompany the creation of the offences they would be sanctionless, a situation which in Reg. v. Kent Justices: Ex parte Lye (1967) 2 QB 153 , one of the "pirate radio station" cases, Lord Parker has described as involving "merely a declaration of an offence and no possibility of any sanction". In fact the South Australian Act did not require of courts, as did the English legislation in that case, the recognition of any statutory implication of a grant of jurisdiction; express provisions in the South Australian Act conferred jurisdiction upon its courts. Accordingly, at the time of Federation the jurisdiction of the South Australian Supreme Court validly extended to offences committed within "territorial waters" and which were of a nature closely analogous to those of which the present accused have been convicted. (at p272)
23. Upon the enactment of the Customs Act 1901 by the Parliament of the Commonwealth the South Australian customs legislation became inoperative - s. 109 of the Constitution - but this did not put an end to the jurisdiction of the Supreme Court of South Australia in customs matters. By virtue of s. 5 of the Commonwealth of Australia Constitution Act, the Customs Act 1901 became binding upon the South Australian Supreme Court and it expressly conferred jurisdiction upon that Court in respect of "customs prosecutions" - s. 245. Such prosecutions were defined by s. 244 of the Act so as to include proceedings for the recovery of penalties under the Act, and by some of its provisions penalties were imposed in respect of offences which might only be committed at sea, for example, ss. 185 and 228 (2), (3) and (6) (each read in conjunction with the latter part of that section); some customs prosecutions carried as the only prescribed penalty a term of imprisonment - s. 231 and see s. 255(b). (at p272)
24. Thus, without investigating the extent to which other State legislation also conferred jurisdiction upon the Supreme Court of South Australia in respect of offences committed offshore, it sufficiently emerges from customs legislation that both before and after Federation that Court had such jurisdiction. In 1903 s. 39(2) of the Judiciary Act conferred federal jurisdiction generally upon the several Courts of the States "within the limits of their several jurisdictions". By then the Supreme Court of South Australia had long possessed a criminal jurisdiction extending to offences against the customs revenue committed offshore and the invested federal jurisdiction flowing from s. 39(2) accordingly extended, in 1911, to include offences under the Commonwealth customs legislation committed offshore. It is unnecessary, in view of Adams v. Cleeve [1935] HCA 12; (1953) 53 CLR 185 , to go beyond s. 39(2) of the Judiciary Act and to consider the effect of s. 68(2) and the federal criminal jurisdiction with which it invests State Supreme Courts. (at p273)
25. Accordingly in my view the Supreme Court of the Northern Territory derived from the terms of s. 15 of the Northern Territory Supreme Court Act jurisdiction to hear and determine the offences of which the accused were convicted. I would answer the questions asked as follows:- 1. (a) - Yes. (b) - Unnecessary to answer. 2. It is within the ordinary jurisdiction of the Court. 3. Unnecessary to answer. 4. (a) Yes. (b) Unnecessary to answer. 5. No. (at p273)
MASON J. I have had the advantage of reading the reasons for judgment prepared by Gibbs J. I agree with the answers which he proposes to the questions of law which have been reserved for the consideration of this Court by the learned trial judge under s. 72 of the Judiciary Act 1903 (Cth) (as amended) and with the orders which he proposes. (at p273)
2. I shall state my reasons for concluding that the Supreme Court of the Northern Territory had jurisdiction to hear and determine the charges upon which the accused were convicted; in other respects I agree with the reasons for judgment prepared by Gibbs J. (at p273)
3. In my view jurisdiction to hear and determine the charges upon which the accused were convicted was conferred by s. 15(1) and (2) of the Northern Territory Supreme Court Act 1961-1966. By sub-s. (1) of s. 15 of the Supreme Court of the Territory was given "in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before" 1st January 1911. By sub-s. (2) this grant of jurisdiction was expressed to include the jurisdiction that the Supreme Court of South Australia had as federal jurisdiction. (at p273)
4. The Supreme Court of South Australia was established by an Act or Ordinance, 7 Wm IV. No. 5, of the Colony (then called "the Province") of South Australia. The original Act or Ordinance and those which amended it were consolidated by Act No. 31 of 1855-1856, assented to on 19th June 1856. By s. 7 of this Act it was provided that the Supreme Court of South Australia,
"shall have cognizance of all pleas, civil, criminal, and mixed, and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as Her Majesty's Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in and for the said Province and its dependencies; and the said Judge so appointed or hereafter to be appointed as aforesaid, shall have and exercise such and the like jurisdiction and authority in this Province and its dependencies as the Judges of the said Courts of King's Bench, Common Pleas, and Exchequer, or any of them lawfully have and exercise, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the said Supreme Court". (at p274)
5. In 1867 additional powers were conferred on the Supreme Court by the statute 31 Vict. No. 8 (S.A.) Section 27 of this Act provided:
"The Supreme Court on the Crown side shall have the like jurisdiction, power, and authority within the said Province as Her Majesty's Court of Queen's Bench in England hath on the Crown side thereof; and the Chief Justice and Judges of the said Supreme Court for the time being shall have the like jurisdiction, power, and authority, in the said Supreme Court, on the Crown side thereof, as the Chief Justice and the Judges of the Court of Queen's Bench have in England on the Crown side thereof . . ." (at p274)
6. The Judiciary Act 1903-1910 (Cth) conferred federal jurisdiction on the Supreme Court of South Australia immediately before 1st January 1911. The relevant provisions were s. 39(2) and s. 68(2). Section 39(2) conferred federal jurisdiction on the several courts of the States "within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise". Section 68(2) provided that the several courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the States should have the like jurisdiction "with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere . . ." (at p274)
7. The Customs Act 1901-1910 (Cth), Pt XIV provided that customs prosecutions might be instituted in the Supreme Courts of the States (s. 245). However, it seems that this provision should not be regarded as vesting jurisdiction in a Supreme Court independently of the provisions of the Judiciary Act. Consequently, the federal jurisdiction of the Supreme Court of South Australia at the relevant time depended on the grant of jurisdiction flowing from the lastmentioned Act. (at p274)
8. This is not the occasion to undertake an exposition of the precise relationship between s. 39(2) and s. 68(2) of the Judiciary Act. For present purposes it is sufficient to say that it has been accepted that the specific provision made in s. 68(2) respecting the conferment of jurisdiction on State courts with respect to persons charged with offences against the laws of the Commonwealth does not displace, in criminal matters, the general grant of federal jurisdiction which flows from s. 39(2). "To exclude its operation upon any part of federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which s. 39 also confers." (Adams v. Cleeve (1935) 53 CLR, at p 190 ). (at p275)
9. The initial question, therefore, is whether federal jurisdiction to hear and determine the offences under the Customs Act of which the accused were convicted was conferred by s. 39(2). On the argument presented on behalf of the accused the answer to that question turns on the limits (as to locality) which are said to attach to the jurisdiction of the Supreme Court of South Australia under State law, for it was submitted that by virtue of the two South Australian enactments to which I have referred the jurisdiction of the Supreme Court was limited to the hearing and determination of offences committed within the territorial boundaries of the State which, I shall assume, without so deciding, end at low water mark. (at p275)
10. It is to be observed that the consequence for which the accused's counsel contends stems not from any constitutional impediment in the legislative power of the Commonwealth Parliament under s. 77(iii) of the Constitution to invest a State court with federal jurisdiction to hear and determine offences against laws of the Commonwealth committed outside the confines of the State. It was not suggested that the Commonwealth lacked such a power; indeed, it was conceded that such a power has been asserted in the Fisheries Act 1952 (as amended) and the Pearl Fisheries Act 1952 (as amended), by which a State court has been invested with jurisdiction to hear and determine offences committed outside the boundaries of the State in which the court sits. The want of jurisdiction, if the argument for the accused be correct, is brought about by the manner in which s. 39(2) is expressed and is to that extent a self-inflicted limitation on the investment of federal jurisdiction. (at p275)
11. Whether the grant of criminal jurisdiction to the Supreme Court of South Australia was initially limited to the hearing and determination of offences committed on land depends on the terms of s. 7 of Act No. 31 of 1855-1856 and s. 27 of the Act 31 Vict. No. 8. It is said that these sections did no more than vest in the Supreme Court the same jurisdiction as that possessed by the common law courts of Westminster, in particular that possessed by the Court of Queen's Bench, and that Reg. v. Keyn (1876) 2 Ex D 63 stands as authority for the proposition that the jurisdiction of the common law courts did not extend to the trial of offences committed beyond low water mark. It follows, according to the argument, that the Supreme Court's jurisdiction did not extend to offences committed beyond low water mark. (at p276)
12. The constraint upon the criminal jurisdiction of the common law courts in England was of ancient origin, deriving from the jurisdiction of the Lord High Admiral to try offences upon the high seas. By 1363 it was acknowledged that the Admiral's jurisdiction with respect to offences committed on the high seas was exclusive and that the common law courts did not enjoy concurrent jurisdiction. To safeguard the common law courts against the expanding jurisdiction of the Admiralty two statutes were passed in the reign of Richard II (13 Ric. II c. 5 and 15 Ric. II c. 3) by which the jurisdiction of the Admiralty was restricted to things done upon the sea and in the main streams of great rivers to the seaward side of the bridges. (at p276)
13. The Admiral's jurisdiction extended to treasons, felonies, robberies,murders and confederacies committed in or upon the high seas or in rivers "below bridges where the tide ebbs and flows and where great ships go" (Reg. v. Anderson (1868) LR 1 CCR 161 ). It seems that the jurisdiction was confined to indictable offences. It was said to have its basis in the concept that a ship on the high seas is a floating part of British territory (Reg. v. Anderson (1868) LR 1 CCR, at pp 163, 168 ), although it has been stated more recently that English criminal law applies on British ships because they fall under the protection of Her Majesty with the consequence that all persons aboard, whatever their national status, are subject to her laws (Reg. v. Gordon-Finlayson (1941) 1 KB 171 ). (at p276)
14. By the Offences at Sea Act, 1536 (28 Hen. VIII c. 15) it was provided that all treasons, felonies, robberies, murders and confederacies committed in or upon the sea or in any place where the Admiral had jurisdiction should be heard and determined by "three or four substantial persons" as might be appointed by the King's commission and that the offenders should be tried, convicted and punished before such commissioners as if they had been tried, convicted and punished for offences committed upon the land. In 1799 this Act was extended to the trial of all offences committed on the high seas (39 Geo. III c. 37). (at p277)
15. It became the practice to issue special commissions under the Act of 1536 to try Admiralty offences to the judges of the common law courts. The Central Criminal Court Act of 1834 (4 & 5 Wm IV. c. 36) conferred on the judges of that Court the Admiralty jurisdiction previously exercised by special commissioners. Later, in 1844, by 7 & 8 Vict. c. 2, s. 1, it was provided that Justices of Assizes or others acting under commissions of oyer and terminer or gaol delivery should have all the powers given by any Act to commissioners of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiral. (at p277)
16. It has been said that the Offences at Sea Act, 1536 "has ultimately produced the simple result that all crimes committed at sea can be tried before any court in England, otherwise competent" (Stephen, History of the Criminal Law of England (1883), vol. II, p. 19). This observation is in accord with the remark of Cockburn C.J. in Reg. v. Keyn (1876) 2 Ex D, at p 169 , when, speaking with reference to the Offences at Sea Act, 1536, he said, "It simply transferred the jurisdiction of the admiral, talem qualem, to the common law courts, to be exercised according to the procedure of the common law". However, in my view Sir William Holdsworth was more accurate when he said that "the indirect result of" the Act was "to transfer the criminal jurisdiction of the Admiralty to the judges of the courts of common law" (History of English Law, vol. I, p. 551). Although 7 & 8 Vict. c. 2, s. 4 speaks of the jurisdiction of the Central Criminal Court to try Admiralty offences, the Act of 1536 and the later statutes did not transfer the Admiralty jurisdiction to the common law courts; they did no more than transfer the exercise of the jurisdiction to persons appointed by commission who incidentally happened to be judges of the common law courts, including Justices of Assizes and others who held commissions of oyer and terminer or gaol delivery. (at p277)
17. To overcome delays and difficulties encountered in bringing back offenders to England for trial, statutes were enacted which ultimately had the effect of vesting Admiralty criminal jurisdiction in colonial courts. The Supreme Courts of Calcutta, Madras and Bombay had Admiralty jurisdiction by virtue of the Acts and charters by which they were constituted - see Stephen, History of the Criminal Law of England, vol. II, p. 21, and 33 Geo. III c. 52, s. 156. The Supreme Courts of New South Wales and Van Diemen's Land were given Admiralty jurisdiction by 4 Geo. IV c. 96 (1823) and 9 Geo. IV c. 83 (1828). (at p278)
18. In 1849 a general grant to colonial courts of Admiralty criminal jurusdiction was made by 12 & 13 Vict. c. 96. By s. 1 it provided,
"That if any person within any colony shall be charged with the commission of any treason, piracy, felony . . . or other offence, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or if any person charged with the commission of any such offence upon the sea, or in any such haven, river, creek, or place shall be brought for trial to any colony, then and in every such case all Magistrates . . . Judges, Courts . . . in such colony shall . . . exercise the same jurisdiction . . . and they are hereby respectively authorized . . . to institute and carry on all such proceedings for the bringing of such person so charged . . . to trial . . . as by the law of such colony would and ought to have been . . . exercised or instituted and carried on . . . if such offence had been committed, and such person had been charged with having committed the same, upon any waters situate within the limits of any such colony, and within the limits of the local jurisdiction of the courts of criminal justice of such colony."
Section II provided that on conviction a person should be liable to the same penalty as would be prescribed if the offence had been committed and determined in England. The statute applied to the Supreme Court of South Australia on its establishment. In view of its provisions it was no doubt thought unnecessary to include in the constitution of the Supreme Court of South Australia specific provision enabling it to exercise Admiralty jurisdiction. (at p278)
19. However, doubts arose as to the proper sentences to be imposed on offenders brought before colonial courts pursuant to the Act of 1849. To overcome this difficulty the Courts (Colonial) Jurisdiction Act, 1874 (37 & 38 Vict. c. 27) was enacted. By s. 3 it provided:
"When, by virtue of any Act of Parliament now or hereafter to be passed, a person is tried in a court of any colony for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court, or if committed within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwithstanding: Provided always, that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England." (at p279)
20. The Act of 1849 had the result, as the Judicial Committee said in Reg. v. Mount (1875) LR 6 PC 283, at p 301 , that "the Imperial Legislature was conferring power upon the colonies to try offences properly cognizable in England, with the consequences which would have attended a trial there". The language of s. I, in referring to offences "committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction", was indistinguishable from the expressions used in the Act of 1536 and the later statutes by which the Admiralty jurisdiction became exercisable by special commissions and later by the judges of the common law courts. This circumstance, taken together with the short title to the Act, by which it was described as "An Act to provide for the Prosecution and Trial in Her Majesty's Colonies of Offences committed within the jurisdiction of the Admiralty", made it inevitable, to use the words of the Judicial Committee in Mount's Case (1875) LR 6 PC 283 , that the Act was one "conferring Admiralty jurisdiction on the colonies". (at p279)
21. I am unable to give any different character to the Act of 1874. Its sole purpose was, as its preamble indicates, to remove doubts as to the proper sentence to be imposed on conviction in cases where jurisdiction to try the offence was conferred by Imperial Acts of Parliament and it substituted the penalties prescribed by colonial law for those prescribed by English law. It did not purport to confer a new jurisdiction on colonial courts; it prescribed the penalties to be imposed in cases in which colonial courts were exercising jurisdiction conferred by other Imperial Acts. The Acts referred to plainly included the Act of 1849 which conferred a jurisdiction to try offences against English, not colonial law. (at p279)
22. The jurisdiction of colonial courts was extended to include the hearing and determination of offences committed on the open sea within the territorial waters of a colony by the Territorial Waters Jurisdiction Act, 1878 but, again, its operation was confined to offences against "the law of England for the time being in force" - see definition of "offence" in s. 4. (at p279)
23. In the light of the statutory provisions I conclude that by 1867 neither the Courts of Queen's Bench, Common Pleas and Exchequer at Westminster, nor the judges of the Court of Queen's Bench in virtue of their office, as distinct from the judges at common law, possessed jurisdiction to try Admiralty offences committed beyond low water mark and that, accordingly, such a jurisdiction was not vested in the Supreme Court of South Australia by the two South Australian Acts, assuming the coastal boundary of the Colony to have been coincident with low water mark. Likewise, I am of opinion that the Acts of 1849 and 1874 did not confer on the Supreme Court jurisdiction to try offences against colonial law committed at sea. However, these conclusions do not dispose of the issue of jurisdiction, for it is necessary to ascertain whether a jurisdiction to try offences committed beyond low water mark was entrusted to the Supreme Court by South Australian law before 1st January 1911. (at p280)
24. It is beyond question that a doctrine of extra-territorial legislative incompetence was thought to apply to colonial legislatures in the nineteenth century. It found its clearest expression in Macleod v. Attorney-General (N.S.W.) (1891) AC 455 . However, in so far as the reasoning in Macleod's Case rests upon the doctrine of extra-territorial incompetence, as distinct from a principle of statutory construction, its authority is qualified by the decision and the reasoning in Croft v. Dunphy (1933) AC 156 . (at p280)
25. That decision related to a Customs Act enacted by the Parliament of the Dominion of Canada, not to an enactment of a colonial legislature. Nevertheless, the decision did not turn on the Statute of Westminster, 1931 and the reasoning is applicable to colonial legislatures having plenary powers of legislation for the peace, order and good government of a colony (Bonser v. La Macchia (1969) 122 CLR, at pp 189, 225 ). The judgment delivered by Lord Macmillan calls in aid the well-known observations made in Reg. v. Burah (1878) 3 App Cas 889 and Hodge v. The Queen (1883) 9 App Cas 117, at p 132 , in connexion with the grant of plenary powers of legislation. In these cases the Judicial Committee was dealing with statutes of the Indian Legislature and the Legislature of Ontario, neither of which was regarded as possessing full sovereignty in the sense in which this expression has been applied to the Dominions. The approach taken was to pose the question whether the legislation was within the power conferred. The statement that, once the legislation is seen to fall within the grant of power, "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" is not, I think, to be taken as indicating that the approach taken is inappropriate to States and Colonies. Croft v. Dunphy (1933) AC 156 itself indicates that there is a sufficient nexus between the provisions in customs legislation applying to ships beyond territorial waters and the peace, order and good government of a territory to bring it within a general grant of legislative power so expressed. The decision did not turn on the circumstance that the relevant head of legislative power was specific, not general. (at p281)
26. Even in the nineteenth century, long before Croft v. Dunphy, the doctrine of extra-territorial incompetence was not regarded as an impediment to the operation of colonial legislation in territorial waters surrounding a colony. Professor O'Connell in his chapter "Australian Coastal Jurisdiction" in International Law in Australia, pp. 272-279, refers to opinions of the Law Offices and the Instructions to the Governor of Western Australia in 1888 which make it clear that the British Government considered that colonial legislation, otherwise valid, had an operation in the territorial waters of a colony. The Instructions to the Governor of Western Australia contained the following statement:
"To state the position briefly, this Act, like any other colonial law, cannot be applied more than three miles from the coast, and if it is necessary to regulate the Pearl Shell Fishery as carried on beyond that limit, it will be necessary to have recourse to the Federal Council." (at p281)
27. There are strong grounds for thinking that s. 15 of the Federal Council of Australasia Act of 1885 proceeded on this view, conceding to the colonies a power to apply their legislation in territorial waters. It enabled the Council to legislate in respect of fisheries and the custody of offenders on board ships belonging to colonial governments "beyond territorial limits" (s. 15(c) and (g)), an expression which in the context may well have signified the outer margin of territorial waters (see Bonser v. La Macchia (1969) 122 CLR, at pp 191-192, 203 ). (at p281)
"Upon its (i.e. a British ship's) entry into the territorial waters, that is within the three mile limit of any colony, say Western Australia, it still remained subject to British Merchant Shipping Acts, but in addition thereto it became subject to the local laws of Western Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not contrary to British Merchant Shipping Acts. On leaving the ports of Western Australia and passing beyond the three mile limit, the British ship ceased to be subject to West Australian laws, and became once more subject only to Imperial laws." (Annotated Constitution of the Australian Commonwealth, p. 360.) (at p282)
29. The view seems to have had its origin in the principles of international law and the recognition which it accorded to the operation of the legislation of the coastal State throughout the territorial sea. However, the origin of the view is not of present importance; what is significant is that it was acknowledged that colonial legislation had an application in territorial waters. (at p282)
30. Granted that the legislature of a colony, having power to legislate for the peace, order and good government of the colony, could make laws having an application in territorial waters surrounding the colony, the inevitable consequence is that the legislature could also vest in the courts of the colony a jurisdiction to hear and determine offences committed against those laws by persons brought before the courts of the colony. The existence of the traditional jurisdiction in Admiralty in connexion with offences committed on the high seas (including territorial waters) in my opinion constituted no bar to a colonial legislature vesting such a jurisdiction in its own courts. (at p282)
31. The general grant of legislative power to the Australian Colonies included power to enact customs legislation. In the exercise of that power Customs Acts and Customs Tariff Acts were enacted. The Customs Acts, following the English model, contained provisions having an application to British ships within territorial waters. These provisions, if not observed, gave rise to criminal offences. It is, I think, beyond question that these Acts were, and were always regarded as, valid laws and that they did not contravene the so-called doctrine of extra-territorial legislative incompetence. (at p282)
32. The Customs Act, 1864 (S.A.) contained a number of provisions expressed to have, or necessarily having, an application within territorial waters (see ss. 160, 161, 162, 167, 168, 170, 171 and 185). Non-compliance with many of these provisions rendered the offender liable to forfeiture of property, or penalty. Indeed, s. 10 of the Act provided:
"The provisions of this Act shall include and extend to the limits of the said Province and the waters thereof, and one nautical league seaward from highwater-mark on the coast of the said Province."
Jurisdiction in respect of offences under the Act (which were, it seems, summary offences) was conferred on the Supreme Court - see ss. 211, 212 and 217. Thus the Act created a jurisdiction in the Supreme Court to deal with offences committed in territorial waters, subject to the qualification that s. 10 refers to nautical league from "highwater-mark", the jurisdiction thus conferred being additional to that which the Court possessed under the Acts of 1855-1856 and 1867. These Acts did not constitute any bar to the conferment of additional jurisdiction on the Supreme Court by other Acts of the South Australian Legislature. (at p283)
33. Nor did the Act of 1855-1856 prevent the vesting in the Supreme Court of an ordinary (that is, a non-Admiralty) jurisdiction with respect to offences committed beyond low water mark. And in my view the Act of 1864 should not be regarded as conferring Admiralty jurisdiction; it was not expressed to involve any transfer of jurisdiction otherwise invested in the Admiralty Court. (at p283)
34. The Customs Act, 1864 was not repealed by the Parliament of South Australia until 1934. It did not impose duties of customs and it was not repealed by s. 90 of the Constitution. In my opinion it continued in force until 4th October 1901 when it was rendered inoperative under s. 109 of the Constitution by inconsistent Commonwealth legislation in the form of the Customs Act 1901 (Cth). That Act gave jurisdiction in respect of customs prosecutions to the Supreme Courts of the States as well as the High Court before the enactment of the Judiciary Act 1903 (s. 245). Although it may be doubted whether the expression "Customs Prosecutions" included prosecutions proceedings by way of indictment (see s. 244, cf. s. 254(2)), s. 245 conferred jurisdiction in respect of summary proceedings for the punishment of offences against the Act. Subsequently the jurisdiction formed part of the general jurisdiction conferred by the Judiciary Act on the conditions set out in s. 39(2). It is of no moment that the jurisdiction of the Supreme Court to deal with offences committed in territorial waters may have been limited to offences triable summarily: what is of importance is that the suggested limitation on the Court's jurisdiction, viz. a lack of jurisdiction to deal with offences committed in territorial waters, had no foundation. (at p283)
35. In the result, therefore, I am of opinion that immediately before 1st January 1911 the Supreme Court was not without jurisdiction to hear and determine offences committed in territorial waters. (at p283)
Reserved points of law answered as follows:
1. Does the Supreme Court of the Northern Territory have jurisdiction to
hear and determine the charges contained in the indictment
(a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof
(b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.
Answer: (a) Yes.
(b) Unnecessary to answer.
2. If the Supreme Court of the Northern Territory has jurisdiction, is the
matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty.
Answer: Within the ordinary jurisdiction of the Court.
3. If the Supreme Court of the Northern Territory can only hear and
determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting.
Answer: Unnecessary to answer.
4. Does the Customs Act 1901-1971 extend to the said offences
(a) if they were committed in the area between the low water mark of the
Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof
(b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.
Answer: (a) Yes as to offences under ss. 233B (1)(a) and 231(1)(c); unnecessary to answer as to other offences.
(b) Unnecessary to answer.
5. If prohibited imports are voluntarily brought from a point outside a line
three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971. Answer: No.
Verdicts against the four accused on counts 1, 6 and 11 of the indictment set aside, and in lieu thereof enter verdicts of "Not Guilty".
Matter remitted to the Supreme Court of the Northern Territory for judgment.
# R
Bull \[1974\] HCA 23;
(1974) 131 CLR 203
(1926) 38 CLR 131
(1908) 6 CLR 143
(1969) 122 CLR 177
(1934) 52 CLR 100
(1938) 59 CLR 170
(1947) 75 CLR 218
(1952) 86 CLR 46
(1971) 126 CLR 429
(1935) 53 CLR 185
(1963) 110 CLR 234
(1949) 80 CLR 657
(1912) 15 CLR 308
(1954) 90 CLR 13
(1933) 50 CLR 536
(1923) 27 ALR 1306
(1933) 49 CLR 220
(1953) 53 CLR 185