Ward v The Queen

Ward v The Queen - [1980] HCA 11 - HCA 1980 case summary — Zoe

[22]

The separation of Victoria from New South Wales was soon followed by the first navigation of the upper reaches of the Murray by paddle steamer from South Australia in 1853. This rapidly led to extensive use of the River Murray for the carriage of goods from South Australia into northern Victoria and the Riverina. This immediately gave rise to concern on the part of New South Wales as to customs duty on goods brought upstream from South Australia: some would be destined for Victoria and some for New South Wales and, quite apart from possible evasion of duty, there were doubts as to how duty might be collected and the validity of the collection of duty on goods while still in transit on the river; general problems of customs administration also arose. The Executive Council had doubts "whether customs duty can be legally enforced in New South Wales in respect of goods whilst being conveyed on the waters of the Murray, which divide the colonies of New South Wales and Victoria and are common to both" (Proceedings, 1st and 22nd November 1853). The Law Officers of New South Wales, however, advised the Executive Council on 22nd November 1853 that "we are much inclined to think that, in strictness of law, the whole of the stream continues to form part of the territory of New South Wales". Accordingly, New South Wales might, they advised, collect duty on all goods coming up the river from South Australia, whereas Victoria was probably only entitled to demand duty "at the place at which goods might be landed on the Victorian side of the river". To avoid administrative inconveniences anticipated from the application of this interpretation they recommended the enacting of simultaneous legislation in both Victoria and New South Wales. A description of this early stage in the protracted history of inter-colonial customs disputation appears in Quick and Garran, The Annotated Constitution of the Australian Commonwealth, pp. 100-101, and, in greater detail, in G. D. Patterson's The Murray River Border Customs Dispute 1853-1880, Business Archives, vol. 2 (1962), p. 122.

[30]

And whereas by the before-mentioned Act of the Fourteenth Year of Her Majesty, Chapter Fifty-nine, it is amongst other things enacted, that the Territories therein described as bounded on the North and North-east by a straight Line drawn from Cape Howe to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia, should be erected into a separate Colony to be known and designated as the Colony of Victoria: And whereas Doubts have been entertained as to the true Meaning of the said Description of the Boundary of the said Colony: It is hereby declared and enacted, That the whole Watercourse of the said River Murray, from its Source therein described to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales: Provided nevertheless, that it shall be lawful for the Legislatures and for the proper Officers of Customs of both the said Colonies of New South Wales and Victoria to make Regulations for the levying of Customs Duties on Articles imported into the said Two Colonies respectively by way of the River Murray, and for the Punishment of Offences against the Customs Laws of the said Two Colonies respectively committed on the said River, and for the Regulation of the Navigation of the said River by Vessels belonging to the said Two Colonies respectively; Provided also, that it shall be competent for the Legislatures of the said Two Colonies, by Laws passed in concurrence with each other, to define in any different Manner the Boundary Line of the said Two Colonies along the Course of the River Murray, and to alter the other Provisions of this Section. As already mentioned, s. 46 of the bill scheduled to the Act declares the boundaries of the colony of New South Wales to be the whole of Eastern Australia, "except as hereinafter excepted"; that exception being expressed as follows: "save and except the Territories comprised within the Boundaries of the Province of South Australia and the Colony of Victoria, as at present established".

[44]

So much for some of the practical difficulties involved in a resolution of the question of the Murray River boundary. This Court is neither a treaty-making body nor a boundaries commission, nor is it presently concerned with the resolution of such a dispute between States as that to which s. 75 (iv.) of the Constitution refers. Its present concern is with the interpretation of Imperial statutes of the middle of the last century as they bear on the present application for special leave, although in arriving at a decision it cannot be unaware of the broader consequences that that decision may entail, and which account for the intervention of the States of New South Wales and South Australia. Reference was made in the argument of the Solicitor-General for Victoria to the weight given to matters of convenience where the United States Supreme Court has been concerned with border adjudication. In South Australia v. Victoria, O'Connor J. [9] explained the special jurisdiction possessed by the United States Supreme Court in "controversies between the States", a jurisdiction which includes wide powers of settlement and adjudication and the determination of matters not of themselves justiciable, as well as matters justiciable. The approach of the United States Supreme Court in Howard v. Ingersoll [10] and in Handly's Lessee v. Anthony [11] as well as in subsequent cases involving the determination of border questions between States, with its emphasis upon "public convenience and the avoidance of controversy" may be a product of experience of that jurisdiction. In its determination of the present case this Court would, I think, be transgressing the limits of its jurisdiction were it to have regard to present convenience in determining the location of the River Murray boundary. No doubt the gross inconvenience of a particular solution to the problem before the Court may suggest that it does not represent a proper reflection of legislative intent, but it is only in this way that I would regard convenience as a factor in the final decision.

[69]

My conclusions concerning s. 5 are, then, that it is expressed in language which refers not to the flowing waters of the Murray but, rather, to the contour feature within which those waters flow: that, although it was the product of problems relating to the collection of customs duty on Murray River traffic, it is expressed to be, and takes the form of, a measure for defining territorial boundaries: that in taking this form it gives effect to the proposals of its initiators in New South Wales: that, on its proper construction, it declares the whole of the contour feature, to the top of the southern bank, to be the territory of New South Wales. It follows that the boundary line between the States runs along the top of the southern bank of the Murray, all territory to the north being within New South Wales. In referring to the "bank" of the river I adopt the description given in Howard v. Ingersoll [16] : "the banks of a river are those elevations of land which confine the waters when they rise out of the bed". In Jones v. Mersey River Board [17] , Jenkins L.J., after citing with approval this passage from Howard v. Ingersoll [18] , pointed out that the identification of the "bank" at any particular point along a river "must be a question very largely of fact to be decided in each particular case by reference to the size and habits of the river, the geological composition of the land, and the level of the land as compared with the river, and no doubt, other circumstances of that kind". The relevant topography at the site of the shooting in the present case leaves no room for doubt: the bank is well defined and its top can be instantly recognized. His Lordship, having regard to the statutory context there in question, would have included in "banks" rather more than "the slope or vertical face" which confines the waters when they rise out of the bed, extending its meaning to land adjoining the river [19] . However in the present case it will be along the top or upper edge of "the slope or vertical face" of the southern bank that the boundary between the States is to be found.

[76]

Their Honours stress the convenience of the solution which they favour. The view I take both of the words of s. v and of the historical context compels me to another, possibly less convenient, conclusion. However the balance of convenience is scarcely all one way. As Mr. Kelly pointed out in argument on behalf of the applicant, there can be few situations more inconvenient for those erecting jetties, wharves or other structures at the water's edge on the southern shore of the river than to find that the laws applicable to part at least of their structure, and no doubt also the industrial laws relating to its construction, change with every rise and fall of the river. Moreover, the apparent inconvenience occasioned by the existence, except at times of high water, of a strip of New South Wales territory along the southern bank of the Murray may seem less acute when it is recalled that it is not title boundaries or the ownership of land but matters of jurisdiction, both curial and legislative, that are here in question. It must only be in rare cases that it will be of any practical importance which State's writ runs. At least wherever the Murray's southern bank resembles the particular stretch of bank where this shooting took place, the strip of land involved would seem of no economic value. Nor would its inclusion in New South Wales have affected questions of customs or navigation on the Murray before federation: the first proviso in s. v preserved to Victoria legislative power over these subject-matters. As to riparian rights and the use and control of water, the stormy history of conflicting colonial interests described by Professor Clark in his articles on "The River Murray Question" in the Melbourne University Law Review, vol. 8 (1971), seem in the outcome to have been unaffected by the question of where precisely along the river bank Victoria's border should be drawn. In relation to the use and control of the waters of the river, the operations of the River Murray Commission have long since deprived the question of practical significance.

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