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Published online by Cambridge University Press: 24 January 2025
1 N.S.W. v. The Commonwealth (1975) 8 A.L.R. 1.
2 E.g. The Sharks Bay Pearl Shell Fishery Act 1886 (W.A.) which set up a licensing scheme for the Shark Bay locality, which was administered in such a way as to exclude Asian pearlers from holding licences. Note also the Immigration Restriction Act 1897 (W.A.).
3 See further, Edeson, “The Validity of Australia's Possible Maritime Historic Claims in International Law” (1974) 48 A.L.J. 295, 303Google Scholar. After the Second World War, the emergent concept of the continental shelf gave Australia the authority to claim a wider control over coastal pearl fishing—Pearl Fisheries Act 1952-1953 (Cth) and the Proclamation in the Commonwealth Gazette 10 September 1953 (No. 56). This action encountered strong protest from the Japanese Government, and the two Governments agreed to submit the dispute to the International Court of Justice. A modus vivendi was agreed upon by the parties in 1954, to be without prejudice to their respective rights. The dispute was never litigated.
4 Reproduced in Haultain, Watch Off Arnhem Land (1971) 138.
5 The Argus 14 October 1938.
6 For a contemporaneous article covering much of the events, see the Sydney Morning Herald 7 and 8 December 1938.
7 In this respect, it is a pity to note that Cabinet Papers regarding this incident cannot be located: Neale (ed.), Documents on Foreign Policy 1937-1949 Vol. 1 60-61.
8 Case No. 14 of 1937, Northern Territory Supreme Court. This is the more important of the two judgments and it is now reprinted in full in an appendix in Haultain, op. cit. 247. (Subsequent references to this case in this Article are to the page number(s) of the transcript of Wells J.'s judgment, and this is followed by the corresponding reference to the judgment as reprinted in Haultain, op. cit.) Case No. 21 of 1937, discussed infra p. 223 is still not readily available. See generally, Commonwealth Archives CRSA 432, 38/146; Charteris, Chapters on International Law (1940) 90-91. Several judgments which have dealt with important or interesting issues of offshore sovereignty or jurisdiction have remained unreported, e.g. R. v. Wilson (1875) discussed in O'Connell (ed.), International Law in Australia (1965) 265 (also noted The South Australian Register 17 and 19 June 1875). Other examples are R. v. Robinson Case No. 112 of 1971, Supreme Court of W.A. noted in (1971) 10 University of Western Australia Law Review 175, Massie v. McKenzie [1973) Tas. Digest 21 (Tasmanian Supreme Court).
9 It was considered advisable to release this vessel because it had come into territorial waters in bizarre circumstances: originally, the mother ship of a pearling fleet was found in territorial waters, along with the Takachiho Maru No. 3, and arrested by Captain Haultain. However, because of engine difficulties aboard the Larrakia, and because the mother ship was so large that it would have been impossible to escort her back to Darwin while keeping close to the coast, the mother ship was released by Captain Haultain on condition that another vessel of the fleet sailed into territorial waters in order that it could be arrested. This was the Seicho Maru No. 10.
10 The plaintiff's right to bring the action was challenged by the defendants, the doubt arising from the fact that under Japanese law, a company could not be registered as the legal owner of a vessel. Wells J. decided that, as the action was brought in the Northern Territory, he must “proceed in accordance with the lex fori. I think that the evidence establishes that the position of the plaintiff under our law is that he is the legal owner of the vessel, holding as trustee for the company; ... that ... he is entitled to sue as plaintiff ... “ p. 5; Haultain, op. cit. 250. The defendants also argued that the action should have been brought by the company, referring to Rey v. Lecouturier [1908] 2 Ch. 715 but this too was rejected by the Judge, p. 6; Haultain, op. cit. 250.
11 Wells J. in fact stated in the case that a conviction for an offence under s. 19AA was not a condition precedent to forfeiture; and that liability to forfeiture flowed from the committal of the offence: p. 6; Haultain, op. cit. 250.
12 [1914] A.C. 153.
13 Id. 174.
14 P. 4; Haultain, op. cit. 249.
15 P. 7; Haultain, op. cit. 250.
16 P. 7; Haultain, op. cit. 251.
17 Attorney-General for British Columbia v. Attorney-General for Canada [1914] A.C. 153; Secretary of State for India v. Sri Raja Chellikani Rama Rao (1916) 32 T.L.R. 652; Chapman & Co. Ltd v. Rose [1914] St. R. Qd. 302.
18 P. 10; Haultain, op. cit. 253.
19 P. 19; Haultain, op. cit. 261.
20 Note the statement by the Attorney-General (then Mr Bowen, Q.C.) to the House of Representatives concerning Australia's territorial sea baselines. H.R. Deb. 1967, Vol. 57, 2444-2445.
21 P. 16; Haultain, op. cit. 258. Discussed further, infra pp. 217-219.
22 E.g. as in The Fagernes [1927] P. 311 where the Home Office certificate was regarded as binding by the English Court of Appeal in an action between private parties. Wells J. in fact quoted extensive passages from this case without adverse comment. For the more recent view that the ratification of a treaty by the Crown can conclusively determine the area of territorial waters see Post Office v. Estuary Radio Ltd [1968] 2 Q.B. 740, 756 per Diplock L.J.; see also R. v. Kent Justices; ex parte Lye [1967] 2 Q.B. 153. In both these cases, the delimitation of the territorial sea was considered to fall within the Crown's prerogative (and therefore determined by the Territorial Waters Order in Council 1964). Note however, the important dissent of Salmon L.J. in the latter case who considered that the term “territorial waters” in the Wireless Telegraphy Act 1949 (U.K.) should be construed to mean those waters to which the territorial sovereignty of the Crown extended in 1949: [1967] 2 Q.B. 153, 178-183.
23 (1876) 2 Ex. D. 63.
24 P. 9; Haultain, op. cit. 252.
25 U.S. v. California (1947) 332 U.S. 19; Reference re Ownership of Off-Shore Mineral Rights (1967) 65 D.L.R. (2d) 353; N.S.W. v. The Commonwealth (1975) 8 A.L.R. 1.
26 The methods of measurement used in this case are discussed infra pp. 221-222.
27 Pp. 30-31; Haultain, op. cit. 268.
28 Second Schedule (“Areas Adjacent”).
29 Australian Government Gazette 31 October 1974 (Nos 89A, 89B).
30 Note the maps already published regarding portions of the N.S.W., Victorian and Tasmanian coastline: n. 29 supra.
31 In fact, most of them are silent on this point. See generally, McLelland, “Colonial and State Boundaries in Australia” (1971) 45 A.L.J. 671Google Scholar; Edeson, “Australian Bays” [1968-1969] Australian Yearbook of International Law 5, 14-18.Google Scholar
32 P. 10; Haultain, op. cit. 253.
33 These were: R. v. Cunningham (1859) Bell 72, 169 E.R. 1171; The Fagernes [1926] P. 185 and [1927] P. 311; Direct U.S. Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394; North Atlantic Coast Fisheries Arbitration (1910) 11 United Nations Reports of International Arbitral Awards 167.
34 These were: Hurst, “The Territoriality of Bays” [1922-1923] British Year-book of International Law 42; Grey (ed.), Cobbett, Pitt Cases on International Law (5th ed. 1931)Google Scholar; Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927).Google Scholar
35 Vol. II, Codification Conference, Bases of Discussion 1929, 117.
36 P. 19; Haultain, op. cit. 261.
37 Pp. 19-20; Haultain, op. cit. 261.
38 P. 20; Haultain, op. cit. 261.
39 Ibid.
40 Pp. 20-21; Haultain, op. cit. 261.
41 P. 21; Haultain, op. cit. 261.
42 P. 22; Haultain, op. cit. 262. This enclosure is reproduced in Historical Records of Australia (1922) Vol. 5 (Series III) 780-781. The taking of Port Essington was an early, unsuccessful, attempt to settle part of Northern Australia.
43 Captain Cook's Voyages, cited in Rusden, History of Australia (2nd ed. 1897) Vol. 1, 12.Google Scholar
44 P. 22; Haultain, op. cit. 262.
45 These were: Letters Patent of 1887, constituting the office of Governor of South Australia, The Northern Territory Surrender Act 1907 (S.A.), Northern Territory Acceptance Act 1910-1919 (Cth), The Imperial Act constituting the Province of South Australia (4 and 5 Wm. 4 c. 95 1834), The Northern Territory Crown Lands Act 1890 (S.A.) and The Fisheries Act 1904 (S.A.). Note though that an earlier Fisheries Act of 1878 (S.A.) only referred to “bay, estuary or other inlet of the sea” in its definition of waters for the purposes of the Act.
46 P. 24; Haultain, op. cit. 263.
47 P. 24; Haultain, op. cit. 263-264.
48 Bonser v. La Macchia (1969) 122 C.L.R. 177, 196 per Barwick C.J.; 226, 233 per Windeyer J.; R. v. Bull (1974) 131 C.L.R. 203, 225 per Barwick C.J. S. 6 of the Seas and Submerged Lands Act 1973 (Cth) declares and enacts that sovereignty in respect of the territorial sea is vested in and exercisable by the Crown in the right of the Commonwealth. S. 10 declares and enacts that sovereignty in respect of internal waters is vested in and exercisable by the Crown in the right of the Commonwealth, though from this claim, s. 14 saves to the States any waters of the sea which are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and which were on 1 January 1901 within the limits of the State. How these waters are to be determined and delimited is not indicated in the Act, although “historic” bays and waters may be declared by the Governor-General. In N.S.W. v. The Commonwealth (1975) 8 A.L.R. 1 the validity of this Act was considered by the High Court. The judgments mostly deal with the status of the territorial sea and areas further seaward in the Australian federal system. While they are consistent with the view that the common law rules for determining waters which are intra fauces terrae applied to the colonial boundary definitions, and in large part determined, colonial maritime limits in 1900, only one judge, Jacobs J., dealt with this question at any length (at 99-111). While the decision of the High Court has resolved the status of the territorial sea, and other maritime regimes further seaward, in the Australian federal system in favour of the Commonwealth, the problems of delimiting internal waters for the purpose of measuring the territorial sea and delimiting those waters which were within colonial limits in 1900 await more detailed consideration. The latter in particular is an especially obscure topic. The case is discussed by Goldsworthy, “Ownership of the Territorial Sea and Continental Shelf of Australia: An Analysis of the Seas and Submerged Lands Act Case (State of New South Wales and Ors v. The Commonwealth of Australia)” (1976) 50 A.L.J. 175. Note also the recent decision of Pearce v. Florenca (1976) 9 A.L.R. 289 in which the High Court held State fishery legislation operating in the territorial sea to be not inconsistent with the Seas and Submerged Lands Act 1973 (Cth).
49 In Bonser v. La Macchia (1969) 122 C.L.R. 177, 226 per Windeyer J. in the context of discussing the federal fishery power (s. 51(x) of the Constitution) thought that waters within territorial limits were “inland waters, rivers and lakes, and seawaters within gulfs, estuaries, and similar inlets”. Later he said: “It is worth noticing too that the Province of South Australia included 'all and every the islands adjacent thereto and the bays and gulfs thereof': 4 and 5 Wm. IV c. 95. Spencer Gulf and St. Vincent's Gulf are therefore to be deemed to be intra fauces terrae.” (at 233).
50 P. 24; Haultain, op. cit. 264. In support of this conclusion, he referred to the adoption of 10 mile closing lines for bays in the Anglo-French Fisheries Convention 1839 and Regulations of 1843, the unratified Anglo-French Convention of 1859, the Anglo-French Convention of 1867, the North Sea Fisheries Convention of 1882, the Anglo-Danish Fisheries Convention 1901, and the statement by the Under Secretary for Foreign Affairs in the House of Commons in 1907 on the Moray Firth dispute with Norway, in which a six mile closing line for bays was advocated, though by custom, treaty or special conventions, a wider limit was possible.
51 Direct U.S. Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394.
52 Pp. 26-27; Haultain, op. cit. 265.
53 P. 27; Haultain, op. cit. 266.
54 (1877) 2 App. Cas. 394, 420.
55 This would seem to be the view of Windeyer J. in Bonser v. La Macchia (1969) 122 C.L.R. 177, 217. See also nn. 48-49 supra. On the other hand, the United States Supreme Court in U.S. v. California (1965) 381 U.S. 139, 174 has stated that “a legislative declaration of jurisdiction without evidence of further active and continuous assertion of dominion over the waters is not sufficient to establish [a] claim”. In this case, California had claimed, inter alia, certain bays as historic because its State constitution, enacted in 1849, described the sea boundary of the State as including all bays along its Pacific coast. A similar conclusion was reached in U.S. v. Louisiana (1969) 394 U.S. 11, 24 where the Court commented: “it is universally agreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters”.
56 [1927] P. 311.
57 P. 16; Haultain, op. cit. 258.
58 [1927] P. 311,324, 329-330 (respectively).
59 Id. 323.
60 See particularly, R. v. Kent Justices; ex parte Lye [1967] 2 Q.B. 153; Post Office v. Estuary Radio Ltd [1968] 2 Q.B. 740. For criticisms of the use of these certificates, see McNair, (1928) 44 L.Q.R. 3 (Casenote); Edeson, “The Prerogative of the Crown to Delimit Britain's Maritime Boundary” (1973) 89 L.Q.R. 364.Google Scholar
61 Note the comments of Blain J. in R. v. Kent Justices; ex parte Lye [1967] 2 Q.B. 153, 192.
62 P. 10; Haultain, op. cit. 253.
63 P. 16; Haultain, op. cit. 258. Despite searches in the records of the Northern Territory Supreme Court, the original certificate has not been located. A draft copy has, however, been found by the Attorney-General's Department, Canberra, which is unsigned though dated, and is quite probably a copy of the original, or if not, it probably does not differ from the original in any material respect. This copy reads: “After consultation with the Minister for the Interior of the Commonwealth of Australia I, Alexander John McLachlan, a Minister of State for the Commonwealth acting for and on behalf of the Attorney-General of the Commonwealth, hereby certify that the Commonwealth recognises that for general purposes territorial waters extend to three nautical miles from low water mark on the coast of the Northern Territory of the Commonwealth of Australia, and for the same distance from low water mark on the coast of any island in the possession of the Commonwealth of Australia (including the coast of bays and gulfs, the headlands of which are more than six miles apart) and does not claim for the purpose of the cases in relation to Japanese luggers, now pending in the Supreme Court of the Northern Territory, any wider limit. Dated this FOURTEENTH day of APRIL, 1938.”
64 The Plaintiffs fortified this point by reference to the principle of ut re magis valeat quam pereat (it is better for a thing to have effect than to be made void), which they suggested required that the term “territorial waters” in s. 19AA of the Aboriginals Ordinance should be construed as consisting of these waters within the Territory only in order to ensure that the section was not ultra vires. The Judge did not comment on this possible application of the principle as he found that the section was clearly within the legislative powers of the Territory.
65 [1891] A.C. 455.
66 P. 28; Haultain, op. cit. 267. He then quoted the wellknown passage from the case which affirmed the right of the Dominion Parliament to legislate within the areas of its legislative competence as fully as any sovereign state (Croft v. Dunphy [1933] A.C. 156, 163).
67 (1926) 37 C.L.R. 432.
68 Pp. 29-30; Haultain, op. cit. 267-268. The last part of the paragraph refers to the fact that the only way of controlling the Japanese pearlers was by applying the provisions of s. 19AA, as most of the pearling grounds were beyond territorial waters. The Judge's conclusion as to the nature of the legislative power with respect to the Territory is consistent with the more recent decision of the High Court in Lamshed v. Lake (1958) 99 C.L.R. 132. See generally, Zines, “'Laws for the Government of any Territory': Section 122 of the Constitution” (1966) 2 F.L. Rev. 72.Google Scholar
69 [1933] A.C. 156.
70 Id. 164.
71 (1945) 70 C.L.R. 60; see also Fishwick v. Cleland (1960) 106 C.L.R. 186.
72 (1958) 99 C.L.R. 132.
73 (1965) 114 C.L.R. 226.
74 P. 33; Haultain, op. cit. 269.
75 P. 33; Haultain, op. cit. 270.
76 P. 34; Haultain, op. cit. 270.
77 The argument that this island generated its own territorial sea belt, which would clearly have brought the plaintiffs within territorial waters if the island formed part of the Arnhem Land Reserve, was not raised in the judgment. This was probably because there was no clear evidence available whether the island was permanently above high water. If it were merely what today would be termed a low tide elevation (Article 11, Territorial Sea Convention 1958) it may not have assisted the Commonwealth's case as there was considerable uncertainty in international law at that time as to the effect of such features on the delimitation of the territorial sea.
78 These are currently being prepared. A few have been issued so far: see nn. 29 and 30 supra.
79 Haultain, op. cit. 236.
80 Case No. 21 of 1937, Northern Territory Supreme Court. See n. 8 supra. (Subsequent references to this case in this Article are to the page number(s) of the transcript of Wells J.'s judgment.)
81 P. 4.
82 Ibid. The full definition of the boundaries of the reserve can be found in the Commonwealth Gazette 16 April 1931.
83 P. 6.
84 Pp. 5-6.
85 Article 10, Territorial Sea Convention 1958. In the Revised Single Negotiating Text 1976 Part II Article 128(3) a qualification is added that: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”.
86 (1906) 37 Can. S.C.R. 385.
87 p.5.
88 R. v. Banks (1794) 1 Esp. 144, 170 E.R. 307; R. v. Tolson (1889) 23 Q.B.D. 168; Maher v. Musson (1934) 52 C.L.R. 100.
89 P. 7; quoting in part the judgment of Dixon J. in Maher v. Musson (1934) 52 C.L.R. 100, 105.
90 Haultain has strongly criticised Wells J. for his interpretation of the facts: op. cit. 236-237.
91 Bonser v. La Macchia (1969) 122 C.L.R. 177; R. v. Bull (1974) 131 C.L.R. 203; N.S.W. v. The Commonwealth (1975) 8 A.L.R. 1; Pearce v. Florenca (1976) 9 A.L.R. 289.
92 (1975) 8 A.L.R. 1.
93 The Argus 24 September 1938. The case was settled out of court in favour of the Japanese owners before judgment was handed down.