High Court Upholds Validity of Seas and Submerged Lands Act

OUTCOME: Dismissed

High Court of Australia [NAME]. [NAME], [NAME], [NAME] and [NAME]. [NAME] v Commonwealth [1975] HCA 58

ORDER Judgment for the defendant with costs. Order that the question be answered as follows:Is the Seas and Submerged Lands Act 1973 a valid law of the Commonwealth?Answer: Yes.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 17 [NAME].

The Seas and Submerged Lands Act 1973 Cth ("the Act"), passed by the [NAME], came into operation on the date on which it received the [NAME]-[NAME]'s assent, namely, 4th December 1973. The Act has several recitals. They are as follows:

Whereas a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over the territorial sea and the bed and subsoil of the territorial sea, are within the sovereignty of Australia:

and Whereas Australia is a party to [NAME] on the Territorial Sea and the Contiguous Zone a copy of which in the English language is set out in Schedule 1:

and Whereas Australia as a [NAME] has [NAME] rights in respect of [NAME] (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources:

and Whereas Australia is a party to [NAME] on [NAME] a copy of which in the English language is set out in Schedule 2:

The First Schedule to the Act contains the [NAME] [NAME] on the Territorial Sea and the Contiguous Zone and the Second Schedule contains the [NAME] [NAME] on [NAME]. [NAME] was signed on behalf of Australia on 29th April 1958. Pursuant to Art. 29 of [NAME] on the Territorial Sea and the Contiguous Zone, and the deposit of the requisite number of instruments of ratification or accession, that [NAME] came into force on 10th September 1964. Pursuant to Art. 11 of [NAME] on [NAME] and the deposit of the requisite number of instruments of ratification or accession, it came into force on 10th June 1964.

By s. 6, the Act declares and enacts that "the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the [NAME] in right of the Commonwealth". The territorial sea is as it extends from time to time, the [NAME]-[NAME] having power from time to time by proclamation to declare the limits of the territorial sea or of any part thereof not inconsistently with the [NAME].

The Act, by s. 11, declares and enacts that "[NAME] rights of Australia as a [NAME] in respect of [NAME[NAME], for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the [NAME] in right of the Commonwealth". The [NAME]-[NAME] is given power from time to time by proclamation to declare, not inconsistently with [NAME] [NAME] or other relevant [NAME] agreements to which Australia is a party, the limits of the whole or any part of [NAME[NAME] (s. 12).

There are three saving clauses of the Act which can conveniently be mentioned at this point. Section 14 saves the rights of [NAME[NAME] in respect of waters of the sea of or within any bay, gulf, estuary, river, creek, inlet, [NAME] or harbour which before [COMPANY] were, and which still remain, within the sovereignty of a State: superincumbent airspace and subjacent seabed and subsoil are included in the saving.

Section 15 excepts from Australian sovereignty declared by the Act wharves, jetties, piers, breakwaters, buildings, platforms, pipelines, lighthouses, beacons, navigational aids, buoys, cables or other structures or works.

Section 16 provides that the Act does not limit or exclude (a) the operation of any law of the Commonwealth or of a Territory in force at the date of the commencement of the Act or coming into force thereafter, and (b) the operation of any law of a State in force at the date of such commencement or coming into force thereafter, except in so far as the law is expressed to vest or make exercisable any sovereignty or [NAME] rights otherwise than as provided by the Act.

No proclamation or other actions have been made or taken under the Act.

[NAME[NAME], namely, [NAME], [NAME], [NAME] Australia, [NAME], [NAME] and [NAME], commenced actions against the Commonwealth by statement of claim seeking declarations that the Act is wholly or partly invalid. In some cases, alternative declarations that the Act is invalid in respect of certain aspects of its operation were sought. The Commonwealth, by statement of defence, denies that the facts described in the statements of claim entitle the [NAME] to any of the relief claimed and says that the Act is within power and valid.

Pursuant to s. 18 of the Judiciary Act, 1903 Cth, as amended, [NAME[NAME]. directed the question, common to all the actions, whether or not the Act is a valid law of the Commonwealth to be argued before a [ADDRESS] upon many volumes of material entitled "Seas and Submerged Lands Act Litigation Joint Material", which brought together documents which all parties had agreed should be capable of being used by any of the parties in the argument of the question. The documents ranged widely but due to the attitudes adopted by the parties, and the conclusions which I have reached, there is no need for me to discuss the relevancy or irrelevancy of any of this material.

The issues which arose from these pleadings and in the argument before the Court were, first, is the Act a valid exercise of the legislative power given to the [NAME] by s. 51, particularly by par. (xxix.) and by s. 122 of the Constitution; secondly, did [NAME], by reason of settlement as a [NAME] of the [NAME] or by reason of the grant of self-government, have in 1900 [NAME] or proprietary rights in or legislative power over (a) the territorial sea or (b) [NAME]; thirdly, did either the enactment of the Australian Constitution or the emergence of Australia as a [NAME], vest in Australia either or both the territorial sea and [NAME]?

The relationship of these issues each to other may not readily appear. But [NAME] sought to invalidate the Act by, amongst other things, their claim to ownership or legislative power over the marginal seas adjacent to their coasts to the extent seaward of three miles, with the soil subjacent thereto and the airspace superincumbent thereupon and over [NAME] and incline. Hence the second issue. The defendant Commonwealth, by way of reply to such a claim of [NAME], asserted that if prior to the enactment of the [NAME] had such ownership or legislative power, it passed to the Commonwealth at the inception of the Constitution or at latest on Australia becoming an independent [NAME].

I shall deal with these issues and the submissions made in respect of them separately in the above order.

External affairs is a larger expression than [NAME] affairs, though the expressions are often used interchangeably. In my opinion, the description "external affairs" covers a larger area of legislative power than would the description "[NAME] affairs". The description of the [NAME] matter of the power and the preference for external affairs rather than [NAME] affairs in the Constitution was doubtless designed to include within the [NAME] matter inter-[NAME] matters which in [NAME] days may not have been regarded as [NAME] affairs. But the motive of the choice of the description will not govern the content of the legislative power. That is not limited, in my opinion, to the making of arrangements with other [NAME] or the implementation of such [NAME] arrangements as may properly be made in Australia's interest with other [NAME], though doubtless these may be the most frequent manifestations of the exercise of the power. The power extends, in my opinion, to any affair which in its nature is external to the continent of Australia and the island of [NAME] always to the Constitution as a whole. For this purpose, the continent of Australia and the island of [NAME] are, in my opinion, bounded by the low-water mark on the coasts. On this question, I have expressed myself in Reg. v. [NAME] [91] . I agree with the Supreme Court of the [NAME] in thinking that, in this area of discourse, "once the low-water mark is passed, the [NAME] domain is reached": [NAME] v. [NAME] [92] .

1. (1974) 131 [NAME]. 203, at p. 219. 2. (1950) 339 [NAME]. 707, at p. 719 [94 Law. Ed. 1221, at p. 1228].

Whether or not the legislative power with respect to external affairs is affected by the grant by the Constitution of legislative power with respect to other [NAME] matters need not be decided in this case: nor is it necessary to attempt to define what is relevantly an affair. But it is important to remember that the power is both an independent power and a plenary power.

I mention but to dismiss it a submission based on the plurality of the expression "external affairs" which would deny that an external affair, because of its singularity, could fall within the power. There is, in my opinion, no substance whatever in the submission.

In my opinion, the [NAME] has power to place Australia in a position to enjoy and exercise the terms of these Conventions. The sovereignty and [NAME] rights of which the Conventions speak are available to Australia as a [NAME] without any executive or legislative act on its part. But the Act provides for the exercise of that sovereignty and those [NAME] rights and authorizes the implementation of the Conventions in material respects. I shall state briefly my reason for that conclusion.

The matters dealt with in and by these Conventions are essentially matters of [NAME]. The rights of which they speak are conferred on the [NAME], which unquestionably is Australia and not the constituent [NAME] whether regarded individually or collectively. The assertion of the rights the Conventions confer on the [NAME] depends on [NAME] acceptance and mutual concession. Questions concerning those rights have been settled by [NAME]. Further, each of the Conventions involves obligations to be performed by the [NAME], e.g. the obligation to afford innocent passage in [NAME] on the Territorial Sea and the obligation not unjustifiably to interfere with navigation, fishing and the conservation of the living resources of the sea in [NAME] on [NAME]. Only the [NAME] could shoulder and perform these obligations which in their nature and origins are obligations between [NAME] [NAME]. Whether or not these Conventions should be implemented by Australia is itself, in my opinion, a question as to an external affair and within the competence of the [NAME].

In amplification of these conclusions it is important to observe and bear in mind that the concept of territorial waters or of a territorial sea derives entirely from [NAME], based on [NAME] comity. It is not a concept which, in my opinion, has any place in the domestic or municipal law of a country. [NAME], with such plenary power as justifies the making of laws having an operation beyond the territory in respect of which such power exists, are not confined to the making of laws which operate only in the marginal seas. The test of validity of a law having an extra-territorial operation is its relationship to the peace, order and good government of the territory for the government of which the legislature has been constituted. If such a law did not so touch and concern that territory it would not be valid simply because it operated in the marginal seas. It would not achieve validity by its operation in the territorial sea. But if the legislature was the legislature of a [NAME] having the benefit of the relevant [NAME], it could make laws about and operating in the territorial seas.

The territorial sea is a part of the high seas which washes the shores of a [NAME], including the shores of its dependent territories, in and over which other [NAME] [NAME] according to [NAME] concede to the [NAME] a right of [NAME] in respect of matters of high concern to the [NAME] as, for example, defence, quarantine and security generally, whilst reserving to the members of the [NAME] community certain specified rights. I assume for the purpose of these reasons, without expressing any opinion thereon, that the marginal seas surrounding islands owned by a [NAME], whether as metropolitan territory or as a [NAME] or part of a [NAME], are part of the territorial waters of the [NAME].

The width of this area of the high seas over which this [NAME] is conceded has not been definitively fixed by [NAME] beyond apparently the [NAME] acceptance that the aforetime range of cannon shot from the land would mark the outer limits of the least area of water included in the territorial sea. The adoption of this customary measure was itself dictated by considerations of defence and security.

When a [NAME] has dependent territories, [NAME] concedes to the [NAME] the same [NAME] over an area of the high seas which washes the shores of its territories as it does in relation to waters which wash the territorial margins of the homeland. Consequently, it would be quite proper in the days of the [NAME] to regard the [NAME] territorial seas as including the portions of the high seas which washed the shores of [NAME] [NAME] territories. It was in that sense that the Territorial Waters Jurisdiction Act (Imp.) 1878 was conceived and enacted.

If [NAME] had in the days of [NAME] to describe the [NAME] territorial waters which were adjacent to an [NAME] [NAME], [NAME] would not unnaturally speak of the waters as the [NAME] territorial waters, not in the sense that the [NAME] itself had [NAME] over those waters but in the sense that it was a [NAME] with a littoral thus attracting to [NAME] as the [NAME] the [NAME] concession of [NAME] over them: the expression described the location of those territorial waters which washed the shores of the [NAME] [NAME] territory. The [NAME] over those waters was, in my opinion, exercisable in the case of the [NAME] by the [NAME] executive or [NAME[NAME].

The [NAME] conceded internationally to the [NAME] with a littoral were so extensive, that is to say, the [NAME] over territorial waters or seas was so large, that it was convenient to refer to the outer margin of the territorial waters as the territorial limit of the [NAME]. With this I dealt in my reasons for judgment in [NAME] v. [NAME] [93] . But the [NAME] concession was not that the territory of the [NAME], in a proprietary or physical sense, was enlarged to include the area of water in the territorial sea or the area of subjacent soil. Indeed, the very description "territorial waters" emphasizes, in my opinion, that they are waters which wash the shores of the territory of the [NAME], otherwise regarded as ending at the margin of the land.

1. (1969) 122 [NAME]. 177.

It is true that [NAME] [NAME] in [NAME] v. [NAME]. [94] said that the territorial waters of the [NAME] were "for this purpose, as much a part of the [NAME]'s [NAME] as the land over which he exercises absolute and unquestioned sway". But it is clear that [NAME] meant no more, in qualifying his statement with the expression "for this purpose", than that in relation to the authority given by the [NAME] to the [NAME] ship to do in the territorial waters of [NAME] the particular acts in question, the [NAME]'s edict was as effective as it would have been if made as to comparable acts on the land of [NAME]. Clearly, the giving of the authority was within the "sovereignty" or [NAME], however the matter be regarded, of the [NAME] in the territorial waters of [NAME]. In my opinion, [NAME] [NAME] expression does not support the submission that territorial waters are an extension of the territory of the [NAME].

1. [1902] [NAME]. 176, at p. 183.

Thus the very existence of a territorial sea depends on [NAME] agreement, established in earlier times by custom or practice amongst [NAME] or a significant number and range of them, but now most definitively by [NAME] [NAME]. The first such [NAME] is set out in the First Schedule to the Act. [NAME] concedes to the [NAME] with a littoral, a "[NAME]", to use the terms of [NAME], what it describes as sovereignty over the territorial sea, its bed and subsoil and superjacent airspace. This [NAME] concession extending to the seabed and airspace perhaps surpasses any [NAME] theretofor accorded by custom or practice between [NAME]. But however that may be, the conceded sovereignty undoubtedly now depends upon the terms of [NAME]. The Act, in my opinion, uses the word "sovereignty" in the same sense as it is used in [NAME]. The Act, in my opinion, does not purport to take any greater power over the [NAME] matter of the Conventions than they confer on the [NAME]. Sovereignty is a word, the meaning of which may vary according to context. The same may be said of "[NAME] rights". I find no need in order to dispose of this issue to expound upon the meaning either in the context of these conventions and as used in the Act. At the least, sovereignty includes the [NAME] which was earlier conceded by [NAME] custom: it may possibly enlarge it. [NAME] rights at least imply exclusive and paramount rights to exploit together with all the power necessary to secure the principal rights. But the important thing is that whatever the extent of the power or jurisdiction sovereignty or [NAME] rights embraces, that power, jurisdiction or authority is conceded internationally to the [NAME] and depends on [NAME] mutuality.

Consequently, the acceptance of the concession and the assertion of the internationally conceded rights are, in my opinion, pre-eminently external affairs. I have no doubt that an Act of the [NAME] which accepts that sovereignty and places itself in a position to assert it and [NAME] itself to its obligations is an Act with respect to external affairs within the meaning of the Australian Constitution. The Act selects the organ of government, namely the Executive, to exercise the sovereignty over the territorial sea and [NAME] rights over [NAME] which the Conventions make available. It also empowers the Executive to implement the conventions in certain respects, ss. 7 and 12. The Act is, in this respect, a valid exercise of legislative power with respect to external affairs.

Objection was raised, however, to the provision of the Act vesting the sovereignty in the [NAME] in right of the Commonwealth. It was said that this amounted to the creation in the [NAME] of a power which could not constitutionally be so vested. I am unable to accept this proposition. The [NAME] is the appropriate repository of [NAME] rights and obligations. In right of the Commonwealth, the [NAME] represents Australia internationally. Its conduct in that connexion is determined by the advice of the Executive Council. Sections 62 and 64 of the Constitution introduced responsible government: on the [NAME] hand, leav ng aside most exceptional circumstances, the [NAME] acts on the advice of its [NAME] and, on the other hand, the [NAME] are responsible to the [NAME] for the actions of the [NAME]. In the [NAME] run the [NAME], comprising the House of Representatives and the Senate, is in a position to control the Executive Government. In my opinion, the sovereignty and [NAME] rights conceded to the [NAME] by these conventions are properly and validly vested in and made exercisable by the [NAME] in right of the Commonwealth. The Act does not purport to give legislative power to the [NAME]: it does not purport to give to the [NAME] in right of the Commonwealth any right or power in relation to the "internal" as distinct from external affairs of the Commonwealth than the [NAME] already has under the Constitution. If it should become necessary for the purpose of [NAME] to make laws operating within Australia, it would be necessary for the [NAME] to make such laws: the validity of any such law would depend on its substantive relationship to external affairs, in this case, the relevant [NAME]. But it is quite unnecessary for the disposal of these cases to explore the possible range of laws which could be so made.

In R. v. [NAME]; [NAME] [95] , the Court had to consider the validity of regulations made under an Act of the [NAME] which authorized, amongst other things, the making of regulations for the purpose of carrying out and giving effect to an [NAME] [NAME] for the regulation of aerial navigation. The Act in that respect was held to be a valid exercise of the power granted by s. 51 (xxix.), "external affairs". The ambit of the regulations made under the Act was examined to determine whether they were in truth regulations to carry out the terms of [NAME]. Because the majority of the Court was of opinion that they did not, the regulations were held invalid. But it is clear from the reasons for judgment that if the regulations had been apt to carry out [NAME], the fact that they operated upon matters which otherwise did not fall within the power of the [NAME] would not have invalidated them. Being laws validly made under the plenary power given by s. 51 (xxix.), they would not have needed any other power to support them. Being in themselves valid, they could operate in [NAME] in respect of matters over which the [NAME] otherwise had no legislative power: further, being valid, they would supersede any inconsistent law of a State. So it would be in relation to laws made implementing these treaties. The ambit of the power with respect to external affairs cannot be restrained by any reserved [NAME] doctrine. However, no such problem directly arises in this case, though the plenary nature of the independent legislative power with respect to external affairs has some relevance to the later issues in the case.

1. (1936) 55 [NAME]. 608.

For the reasons I have given, it is my opinion that the Act is a valid law with respect to external affairs.

Some reference was made in argument to s. 122 as a source of power to support the Act. In the view I take of the width of the power with respect to external affairs, I find no need to seek reliance in s. 122. Elsewhere I have expressed the view that the [NAME] territorial waters in due time passed to Australia as the [NAME] and that in truth no territory of the Commonwealth ever had territorial waters of its own: see [NAME] v. [NAME] [96] . But, upon a territory being given its independence of Australia and ceasing to be a dependent territory, the marginal seas become, by virtue of that very independent national status, the territorial seas of the new [NAME].

1. (1969) 122 [NAME]., at pp. 191-192.

I turn now to the second issue. In this connexion, it is submitted that the [NAME] in 1900 had proprietary rights in the subsoil of the territorial sea washing their shores and [NAME] over those seas as in [NAME]. The submission goes so far as to assert that the boundaries of each [NAME] were to be found at the limit of three nautical miles from their respective coasts and that the waters and their subsoil were part of the waste lands of the [NAME]. As an alternative, it was submitted that legislative and executive authority was vested in the legislature and government of each [NAME] over the territorial seas and the subjacent soil as part of the waste lands of the [NAME], at least from the time a [NAME] was granted self-government. It was said that the territorial seas were part of the "[NAME]'s waste" and were included in the grant of legislative power at the time of the institution of self-government in [NAME].

As a result of these assertions, it was submitted that [NAME] and the territorial seas and subsoil were vested in [NAME] in 1900, either by original settlement or upon the grant of self-government.

Because of these submissions, it was finally submitted that ss. 106-107 of the Constitution maintained these property rights and legislative power in [NAME] so that the [NAME] could not by the exercise of its legislative power with respect to external affairs trench upon such properties and rights.

To some extent I dealt with the matters thus raised in my reasons for judgment in [NAME] v. [NAME] [97] . Having now heard full argument addressed to this issue, and having considered the many documents tendered in the case and the various decisions to which we were referred, I am confirmed in the opinion which I then expressed, namely, that [NAME] in 1900 had neither proprietary rights in, nor legislative power over, the territorial waters which washed their shores, nor in or over the subjacent soil or superjacent airspace except in so far as they had legislative power to enact extra-territorially operating laws. Nor did they have any rights in [NAME] and incline.

1. (1969) 122 [NAME]. 177.

The question in this connexion is not what rights the [NAME] had, or asserted itself to have, in areas of the sea not within the jaws of the land. Nor is it what rights were claimed on behalf of Scotland in areas of the sea, or of arms of it. Due to the undoubted sovereignty of the [NAME] it was free for its own purposes to make and enforce within its own territory any claim to any part of the high seas. The remarks of [NAME[NAME]. in Reg. v. [NAME] [98] , are significant in this connexion. He said that, though at [NAME] the realm ended at low-water mark and though the jurisdiction of [NAME] did not extend to acts on a [NAME] ship on the high seas, albeit within a marine league of the shore, the [NAME] could alter that situation if it so desired. But of course, whilst for its own domestic purposes it could pass without restriction laws operating beyond the domain, only such of those laws as operated within the area conceded to the [NAME] by the comity of [NAME] could have validity at [NAME].

1. (1876) 2 Ex. D. 63, at pp. 238-239.

A great deal of time and effort was expended in the preparation for and in the hearing of the cases in an endeavour to establish that [NAME] claimed, and it was submitted rightly claimed, vast areas of sea and seabed as part of the [NAME]'s realm or of the [NAME]'s waste. But there is no need to express any definitive opinion on these submissions in order to decide the present case. [NAME] can say in passing that it is quite apparent that views on the question of what, for domestic purposes, [NAME] properly claimed have varied from time to time and at best any conclusion on that question may be fraught with considerable uncertainty. But, in my opinion, the question of what [NAME] or the [NAME] claimed to own or to control is not really relevant to the question which lies at the root of the solution of the problem which is raised by this second issue. Suffice it to say that the [NAME], as representing the [NAME], had at all relevant times [NAME] according to [NAME] over the [NAME] territorial seas. Had the [NAME] been minded to do so, they could have placed such part of these territorial waters as washed the shores of a [NAME] within the control of the government of that [NAME] as representing the [NAME] executive and legislature. But [NAME] as the [NAME] must have remained responsible internationally for the performance of the obligations associated with the territorial sea. The [NAME] could have authorized the executive to place the [NAME] territorial seas under the control of the appropriate [NAME]: but no statute of the [NAME] did so.

The relevant question under this issue, therefore, is whether, in establishing a [NAME] and later in giving the [NAME] self-government, the [NAME] or the [NAME] vested in the [NAME] either proprietary rights or legislative power in the specific areas of sea and subjacent soil in question in these cases.

What was involved in the process of colonization in the case of the [NAME] was the placing under delegated government defined areas of land. No alienation of property or of rights was involved. Nothing in the least comparable to the consequences of a conveyance of land occurred upon or by the act of establishing a [NAME]. No ad medium filum analogy is available. [NAME] were colonies in the classical sense of that word. They were settlements of [NAME] people. They did not involve any conquest; nor the displacement of any [NAME] or government in charge of the land to be settled.

In the inception of the first [NAME], a [NAME] with extensive but defined [NAME], was commissioned to govern a definite area of land. Examination of that commission and of the instruments setting up the other colonies, or severing off parts of the original [NAME], amply supports that conclusion. [NAME] [NAME], whose reasons I have been able to read, has amply examined those instruments. No power over [NAME] territorial waters was granted expressly or impliedly. The colonists inherited [NAME]: but it operated only in the realm which ended at low-water mark. This was decided in Reg. v. [NAME] [99] , a decision with which I respectfully agree. See also [NAME] v. [NAME] [1] [COMPANY]. v. [NAME] [2] . Thus, property in and power over the territorial seas could not have come by [NAME]. As I have already mentioned, no statute and no executive act authorized by statute conferred upon [NAME] property in or legislative power over the territorial seas. Later history in connexion with the control of the waste lands of the [NAME] in [NAME] makes this clear.

1. (1876) 2 Ex. D. 63. 2. (1877) [NAME]. 2 C.P.D. 173. 3. (1877) 36 L.T. 251.

[NAME] policy, however, in the light of the experience with the American colonies, favoured in relation to the [NAME], first, the creation of small rather than large land holdings—a policy sharply reversed during the governorship of [NAME] [NAME], and, secondly, progressive increase of legislative power in representative bodies in [NAME]. Each policy was designed to avoid a repetition of the American rebellion. Thus, the [NAME] progressively allowed the [NAME], and subsequently the representative assemblies, to make provisions operating outside the precise territorial limits of the land in relation to matters of purely [NAME] concern being usually matters intimately connected with the welfare of the [NAME] and of the colonists. But the control of the disposal of the unalienated lands in [NAME] was [NAME] retained by the [NAME] for [NAME] purposes. The [NAME], apart from any other matter of policy, desired to use part of the proceeds of the disposal of the waste lands to assist the financing of migration from England to [NAME]. Indeed, control of the unalienated land may be said to have been wrested by the colonists from the [NAME] by continued argument and protestation. However, in July 1855, nearly seventy years after the first settlement, the [NAME] passed "an Act to repeal the Acts of [NAME] now in force respecting the Disposal of the Waste Lands of the [NAME] in Her [NAME]'s [NAME]" which placed, or enabled the placement of, the control of the disposal of such waste lands in the hands of the [NAME] of [NAME]. It is clear to demonstration that the waste lands only included the land within [NAME] and did not include any part of the high seas or subjacent soil. In earlier legislation relating to the waste lands, viz. 5 & 6 Vict. c. 36, passed in June 1842, it is made abundantly clear that only land is included in the description "waste lands". In authorized sales of such lands, there were to be three classes: town lots, suburban lots and country lots, these classes fully exhausting what was included in the description "waste lands". The Act of 1842 was repealed, along with other Acts on the [NAME], by the Act of 1855. There can be no doubt that the description "waste lands" in this Act was the same as that in the earlier Acts.

Not only was the territorial sea or its subjacent soil not part of the waste lands of the [NAME], the disposal of which was thus placed by the [NAME] legislation under the control of the [NAME], but the fact of that legislation clearly indicates that the legislative control of the territorial seas and subjacent soil could not have been given to the [NAME] at any earlier time. To have given proprietary or legislative rights over part of the sea and seabed whilst denying any right or power in the disposal of the land would have been absurd. That the [NAME] had [NAME] obligations in respect of the territorial waters makes such a course more than unlikely.

Thus the history of the contest in Australia as to the power of disposal of the waste lands of the [NAME], lands which did not include any part of the high seas, tends to deny that either by original settlement or by any other act of the [NAME], the territorial seas and subjacent soil were placed or brought within the territory over which [NAME] of government were given by that settlement. The [NAME], e.g. of [NAME] and of [NAME], made it quite clear that the [NAME] lands, the substitute expression for the waste lands, included and subjected to the statutory requirements only land above high water.

But it is said that on the grant of self-government to a [NAME], legislative power over the territorial sea and subjacent soil—and, indeed, over [NAME] and incline—was granted to the [NAME]. In so far as the concurrence of the operation of the Waste Lands Act with the grant of self-government is concerned, what I have already written suffices to answer the proposition.

However, and in any case, there is nothing in the Constitution granted to any of [NAME] which supports the view that thereby the boundaries, or the territorial description, of the [NAME] were or was enlarged. Local autonomy replaced representative government of limited capacity; but the territorial description remained. Of course, thereafter the [NAME] accepted the advice of [NAME]; but still only in relation to [NAME] affairs, of which, in my opinion, the control of the territorial seas and subjacent soil did not form part.

A large number of opinions of [NAME] of the [NAME] were pressed upon us in an endeavour to establish the proposition that [NAME] possessed, as it were in their own right, territorial seas. Of course, however persuasive in some circumstances, and however eminent such [NAME] were or proved to be, their opinions are not precedents nor, in any sense, binding. Their opinions speak of the territorial seas of the [NAME], a description which, though involving a degree of ambiguity, I am prepared to assume meant, without being convinced that it did mean, that such seas were under the control of the [NAME]. But I have no doubt that these [NAME], who did not have to put their minds to the question now before this Court, could quite easily speak of the territorial seas of the [NAME] and conclude that a law was good because, though plainly connected with the [NAME]'s affairs, it operated in the territorial sea. Yet it seems to me that if they meant that such seas were either [NAME] "property" or under [NAME] [NAME], they were under a basic misconception. The territorial seas in themselves were not, in my opinion, source or [NAME] of [NAME] power or authority. The [NAME] laws which these officers supported in their opinions all touched and concerned the [NAME] and its welfare and in later times would be accepted as valid extra-territorially operating laws. Further, the [NAME] [NAME] policies of the times, to which I have already made reference, need to be borne in mind in reading and evaluating these opinions. I am unable to give definitive weight to these various opinions of [NAME] to which we have been referred.

For reasons which I expressed in [NAME] v. [NAME] [3] and in Reg. v. [NAME] [4] , and in what I have so far written in these cases, I am of opinion that low water on the coasts of [NAME] formed the relevant part of the boundary of each—islands specifically made part of a [NAME] excepted—and that no [NAME] in 1900 had obtained any proprietary or legislative or other rights over the territorial seas or the subjacent soil. These and their control as such remained with the [NAME]. Such territorial seas as washed the shores of islands forming part of the [NAME] are, in my opinion, in the same position as the territorial waters washing the shores of the mainland of the [NAME].

1. (1969) 122 [NAME]. 177. 2. (1974) 131 [NAME]., at p. 219.

The third issue might properly be said not to arise if what I have already written is acceptable. But I propose to express myself about it, as, in my opinion, it does provide an opportunity of disposing of these cases upon grounds essentially involved in the creation of a [COMPANY] such as that for which the Australian Constitution provides.

In dealing with the preceding issue, I have concluded that in 1900 none of [NAME] had proprietary rights in the territorial sea, its subjacent soil or superjacent airspace or in [NAME] and incline; and that none of them had legislative power over any of those items. However, for the purpose of discussing this third issue, I assume that, contrary to my expressed view, the [NAME] did have such rights and such legislative power. Both must have been derived from the [NAME] or executive and both were [NAME] to the power of the [NAME] to withdraw them and vest them elsewhere.

The Australian Constitution was an Act of the [NAME]. Covering cl. 9 gave effect to the agreement of the people of the [NAME] to unite in [NAME] indissoluble union. It conformed to the wishes of those people by enacting a federal constitution. A new [NAME] polity was brought into existence. There was no statement of the territory of the new entity, the Commonwealth of Australia. But it is evident that it was the sum of the [NAME] territory which had been placed under government by the [NAME], with a territorial boundary ending at low-water mark. On the passage of the [NAME], those colonies ceased to be such and became [NAME] forming part of the new Commonwealth. As [NAME], they owe their existence to the Constitution which, by ss. 106 and 107, provides their constitutions and [NAME] referentially to the constitutions and [NAME] which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and [NAME] were to continue by virtue of the Constitution of the Commonwealth. But those constitutions and the [NAME] of [NAME] were subjected to the Australian Constitution. They were not the same as they had been before [COMPANY]. The constitutions were continued "[NAME] to this Constitution". The federal nature of the Constitution is seen in the distribution of constitutional power between the new Commonwealth and its constituent [NAME], specific legislative topics being assigned to the Commonwealth and the residue to [NAME], paramountcy being given to Commonwealth laws where inconsistency with State laws exists. That residue is only discoverable when the full extent of Commonwealth power has been elucidated.

As already observed, power with respect to external affairs was assigned to the Commonwealth. That power at the very least included all matters of [NAME] concern. As I have already said, "once low-water mark is passed the [NAME] domain is reached" [5] .

1. [NAME], p. 360; (1950) 339 [NAME]., at p. 719 [94 Law. Ed., at p. 1228.]

Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth, it must necessarily of its nature be so as to [NAME] relations and affairs. Only the Commonwealth has [NAME] status. [NAME] never were and [NAME] are not [NAME] persons.

Whilst the new Commonwealth was upon its creation the [NAME] within the [NAME], the grant of the power with respect to external affairs was a clear recognition, not merely that, by uniting, the people of Australia were moving towards nationhood, but that it was the Commonwealth which would in due course become the [NAME], internationally recognized as such and independent. The progression from [NAME] to independent [NAME] was an inevitable progression, clearly adumbrated by the grant of such [NAME] as the power with respect to defence and external affairs. Section 61, in enabling the [NAME]-[NAME] as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided. That prospect in due course matured, aided in that behalf by the [NAME] and the Statute of Westminster and its adoption.

A consequence of creation of the Commonwealth under the Constitution and the grant of the power with respect to external affairs was, in my opinion, to vest in the Commonwealth any proprietary rights and legislative power which [NAME] might have had in or in relation to the territorial sea, seabed and airspace and continental shelf and incline. Proprietary rights and legislative [NAME] in these matters of [NAME] concern would then coalesce and unite in the [NAME]. That, in my opinion, was the intendment of the Constitution. It is far easier to conclude that the Act of the [NAME] setting up the federal Constitution intended to vest such matters of [NAME] consequence in the new Commonwealth, withdrawing them from the former colonies, than it was to decide that when an [NAME], already an independent [NAME] in possession of [NAME] rights, entered the Union, these rights became vested in the [NAME]. Yet that is received doctrine in the [NAME] expressed in decisions which have recently been affirmed: see [NAME] [6] ; [NAME] v. [NAME] [7] ; [NAME] v. [NAME] [8] and [NAME] v. [NAME] [9] . The Supreme Court's reasons were applicable to the circumstances of [NAME] originally entering the Union. These were then independent [NAME] [NAME]. Yet without so clear an indication as the grant of the power with respect to external affairs, those [NAME] did not retain any rights or legislative power over the territorial sea, subsoil, etc. Later entrants to the Union, coming in on an "equal footing", were in the same situation.

1. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889]. 2. (1950) 339 [NAME]. 707 [94 Law. Ed. 1221]. 3. (1950) 339 [NAME]. 699 [94 Law. Ed. 1216]. 4. (1975) 420 [NAME]. 515 [43 Law. Ed. 2d 363].

This result conforms, in my opinion, to an essential feature of a [COMPANY], namely, that it is the [NAME] and not the integers of the [COMPANY] which must have the power to protect and control as a national function the area of the marginal seas, the seabed and airspace and [NAME] and incline. This has been decided by the [NAME] of the [NAME] and of Canada: see above citations and Reference re Ownership of Offshore Mineral Rights [10] . I am satisfied with the reasons given by those Courts for their conclusions. The Canadian Supreme Court reached its conclusion after a close examination of the case law. I do not disagree with anything that is said in the Supreme Court's judgment about that law, though for my part I have found it unnecessary to deal with it in these my reasons. However, the Supreme Court's conclusion depends in no small degree upon the fact of Canada's independent nationhood and its recognition as such by the [NAME] of the world. Appropriately, it is concluded that such [NAME] rights and obligations as derive from [NAME] on the Territorial Sea devolve on Canada and not on any [NAME] of the [COMPANY]. I can find no reason to differentiate in relevant respects the circumstances of this [COMPANY] from those of the other great federations, except to say that the result of the cases to which I have referred more obviously flows in the case of our Constitution.

1. [1967] [NAME]. 792; (1967) 65 D.[NAME]. (2d) 353.

It is my opinion, therefore, that upon the enactment of the Constitution, any rights or [NAME] which the former colonies might have had in the territorial sea, seabed and airspace or in [NAME] and incline became vested in the Commonwealth. The emergence of Australia as an independent [NAME] confirmed this situation.

Therefore, however the matter be viewed, in my opinion, the Act is valid in enacting the sovereignty and [NAME] rights in respect of the territorial sea and contiguous zone and of [NAME] for which the respective Conventions provide. That sovereignty and those [NAME] rights are exercisable in and in respect of the territorial sea and [NAME]. The Act, in my opinion, validly vests that sovereignty and these [NAME] rights in the [NAME] in right of the Commonwealth but any Act or law operating within Australia to implement either of those Conventions or the [NAME] they give must be itself a valid law of the Commonwealth. But if there is such a law, it may operate on matters and things which otherwise could not be the [NAME] of a law of the [NAME].

I would dismiss all actions.

[NAME[NAME].

The question in these proceedings for determination by the [ADDRESS] is whether the Seas and Submerged Lands Act 1973 is a valid law.

The seas and submerged lands are not within Australia's land territory or its inland waters. The Act presumes that a belt of sea adjacent to the coast of Australia and [NAME] is a territorial sea for the purposes of the [NAME] [NAME] on the Territorial Sea and Contiguous Zone and that the seabed and subsoil of submarine areas adjacent to the coast, but outside the area of the territorial sea of Australia, is a continental shelf for the purposes of the [NAME] [NAME] on [NAME].

Australia is a state in the eye of [NAME] and being a [NAME] and a party to each of these Conventions it was its right and duty to legislate so as to receive these articles into Australian municipal law. The [NAME] did this by embodying in the Act under consideration, a schedule setting out verbatim the articles of the former [NAME] and a schedule setting out verbatim the articles of the latter [NAME]. Each schedule is part of the Act and of the enactment: Craies on Statute Law, 7th ed. (1971), pp. 224-225.

The Act implements the stipulations in [NAME] on the Territorial Sea as to the limits thereof (ss. 7-9), and the stipulations in [NAME] on [NAME] as to the limits thereof.

The [NAME] title of the Act indicates that the [NAME] of the Act is sovereignty in respect of regions beyond Australia's territorial jurisdiction.

The preamble of the Act recites that the territorial sea of Australia, the airspace over it and the soil beneath it are "within the sovereignty of Australia". There is also a recital about [NAME]. This is:

The territorial sea and its soil (mare et solum) and [NAME] (solum) are in an area proper for the operation of rules of [NAME].

As regards "sovereignty" [NAME] (Elements of [NAME], English ed. (1878), pp. 28-29) said:

Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally.

Internal sovereignty is that which is inherent in the people of any State, or vested in its [NAME], by its municipal constitution or fundamental laws. This is the object of what has been called internal public laws, droit public interne, but which may more properly be termed constitutional law.

External sovereignty consists in the independence of [NAME[COMPANY], in respect to all other political societies. It is by the exercise of this branch of sovereignty that the [NAME] relations of [NAME[COMPANY] are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed [NAME].

The controversial sections of the Act are ss. 6, 10 and 11. Each is in form, a declaratory provision. The presumption against giving an Act by construction a restrospective operation is not applicable to a declaratory Act: Craies on Statute Law, 7th ed. (1971), pp. 58, 395. That a retrospective operation to 1st January 1901 is intended appears from par. (a) of s. 14, a saving clause of the Act.

The preamble provides an explanation of the terms used in ss. 6, 10 and 11.

The words of the sections are as follows:

6. It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the [NAME] in right of the Commonwealth.

10. It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the seabed and subsoil beneath those waters, is vested in and exercisable by the [NAME] in right of the Commonwealth.

11. It is by this Act declared and enacted that [NAME] rights of Australia as a [NAME] in respect of [NAME[NAME], for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the [NAME] in right of the Commonwealth.

The object of each section is, in my opinion, to give legal efficacy to the rules of [NAME] to which it relates. In effect each section authorizes the Executive Government of the Commonwealth to administer the rules, to fulfil the [NAME[NAME] as a [NAME] under the rules, and to exercise the rights given by the rules to a [NAME]. Section 11 in particular authorizes the Executive Government of the Commonwealth to exercise [NAME] rights of Australia, in its capacity as a [NAME], which are mentioned in [NAME] on [NAME]. The rules and the [NAME] and rights of Australia under the rules are external affairs from Australia's standpoint. The [NAME] has legislated in this Act to incorporate them verbatim in the Act, and the Act makes no addition to or omission from them. The rules of [NAME] are matters that concern the [NAME] and fall within its prerogative in relation to [NAME] affairs. This prerogative could not be used in any way that would conflict with the articles of either of these [NAME] if validly carried into effect by this Act. The power to make laws with respect to external affairs authorized [NAME] to incorporate the articles in the Act, thus giving to them the force of laws of the Commonwealth. In R. v. [NAME]; [NAME] [NAME] [11] , [NAME].[NAME]. said that s. 51 (xxix.) of the Constitution gave Australia "full control of her external affairs" and "power to legislate to give effect to [NAME] obligations binding the Commonwealth or to protect national rights internationally obtained by the Commonwealth whenever legislation was necessary or deemed to be desirable for this purpose". In the same case [NAME[NAME]. said, "In fact other countries deal with Australia and not with [NAME] of the Commonwealth and this practice follows the evident intention of the Constitution" [12] . 1. (1936) 55 [NAME]. 608, at p. 644. 2. (1937) 55 [NAME]., at p. 645.

[NAME] dispute that at the establishment of the Commonwealth the sovereignty over the territorial sea of Australia did arise in the [NAME] in the right of the Commonwealth, as the Act purports to declare. [NAME] claim that, as colonies, the [NAME] of each of them over its territorial waters was established by [NAME], and, broadly, the [NAME] extended from low-water mark a marine league outward to the open sea. This means that the sea, the soil beneath it within that limit, and airspace over it was for all purposes part of a [NAME]'s territory.

In Reg. v. [NAME] [13] , [NAME[NAME]. held, in effect, that English law had never recognized that the English state had a [NAME] [NAME] over territorial waters; that, except for [NAME] purposes defined by statute, it held such waters to be part of the high seas. The judgment of [NAME[NAME]. and of the majority is an answer to the claim that any [NAME] had been invested by [NAME] authority with territorial jurisdiction extending over territorial waters.

1. (1867) 2 Ex. D. 63.

The boundary limits of [NAME], read in the course of the argument, do not satisfy me that the boundary of any [NAME] was set in the high seas.

The sovereignty to which the Act relates is over regions which were not land territory or internal waters of any [NAME] at the time of the establishment of the Commonwealth. It follows from this that at the time of the establishment of the Commonwealth they did not become its land territory or internal waters. In the Engineers' Case [14] , [NAME].[NAME]., [NAME] and [NAME] [NAME]., in a joint judgment, said:

The Act 63 & 64 Vict. c. 12, establishing the Federal Constitution of Australia, being passed by the [NAME] for the express purpose of regulating the royal exercise of legislative, executive and judicial power throughout Australia, is by its own inherent force binding on the [NAME] to the extent of its operation. It may be that even if s. V. of the Act 63 & 64 Vict. c. 12 had not been enacted, the force of s. 51 of the Constitution itself would have bound the [NAME] in right of a State so far as any law validly made under it purported to affect the [NAME] in that right; but, however that may be, it is clear to us that in presence of both s. V. of the Act and s. 51 of the Constitution that result must follow. The Commonwealth Constitution as it exists for the time being, dealing expressly with [NAME] functions of the [NAME] in its relation to Commonwealth and to [NAME], necessarily so far binds the [NAME], and laws validly made by authority of the Constitution, bind, so far as they purport to do so, the people of every State considered as individuals or as political organisms called [NAME]—in other words, bind both [NAME] and subjects. The functions of the [NAME] include the prerogative of the [NAME] in relation to [NAME] affairs. Even if the most limited criterion be applied, a country's territorial waters, the soil beneath them, and the country's shelf, in themselves, have an external aspect and are matters of the country's [NAME] relations. 1. (1920) 28 [NAME]. 129, at pp. 152-153.

[NAME] [NAME] in [NAME] (p. 267) wrote, on the topic "The Relation of English Law to [NAME]" the following:

In each case in which the question arises the court must consider whether the particular rule of [NAME] has been received into, and so become, a source of, English law.

The Territorial Waters Jurisdiction Act 1878 gave the courts the jurisdiction which the minority of judges in this case had held that they possessed; and its declaratory form is some evidence that the legislature considered that their views were correct. Nevertheless, I think that the opinion of [NAME]. and the majority of the judges had come to be more in accord with the principles of modern English law than the opinion of the minority which represents the older view that [NAME] is per se part of the law [NAME].

I quote a statement in [NAME] of [NAME] on maritime territorial jurisdiction which reads as follows:

The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State. The [NAME] usage of [NAME] super-adds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other [NAME]. The English edition published 1878 adds the following (pp. 237-239): This statement requires some qualification. It has now been decided in England by the celebrated case ofThe Franconia [15] , that the courts of this country have no jurisdiction over a criminal offence committed on board a [NAME] ship while that ship is on the open sea, but within three miles of the shore [NAME]. That the question is [NAME] of great difficulty and doubt, is shown by the fact that of the fourteen judges who attended during the arguments in [NAME], seven pronounced against the jurisdiction, while six claimed it. [NAME] who agreed with the majority died before judgment was delivered. This case decides that by English law as at present administered, no jurisdiction is claimed over criminal offences committed beyond low water mark, unless they have taken place on board a [NAME] ship, or within waters admitted on all hands to be territorial, such as ports, harbours, bays, &c. But it still remains a doubtful question, whether any portion of the open sea may be claimed as part of the territory, and if so to what extent, and for what purposes, it may be so claimed.

No precise rule can be derived from the writings of publicists. The suggestion of [NAME] given in the text, that the sea, as far as a cannon shot will reach from the shore, should belong to the State it borders, has been adopted by many [NAME], and has generally been assumed to be a distance of three miles. It is evident, however, that on this assumption, consistency requires the limit to be increased in proportion to the increased range of modern artillery. But in the practical application of the rule, in respect of the particular distance, and in the still more essential particular of the character and degree of sovereignty and [NAME] to be exercised, a great difference of opinion is to be found. The only point upon which publicists are more or less unanimous, is that some zone of sea (most of them fix it at three miles), is for some purposes [NAME] to the [NAME] of the local State. "Even if entire unanimity had existed," said [NAME] Chief Justice Cockburn, "the question would still remain how far the law, as stated by the publicists, had received the assent of the civilised [NAME] of the world The question is not [NAME] of theoretical opinion, but of fact, and fortunately, the [NAME] upon whose statements we are called upon to act, have afforded us the means of testing those statements by a reference to facts. They refer us to two things, and to these alone—treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the State shall have exclusive [NAME] over it, and that the law of the latter shall be generally applicable to those passing over it in ships of other [NAME], has never been made the [NAME]-matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the [NAME] of diplomatic discussion When the treaties referred to by text [NAME] are looked at, they will be found to relate to two subjects only,—the observance of the rights and obligations of neutrality, and the exclusive right of fishing." In these respects [NAME] have followed text [NAME], and adopted three miles as a convenient distance, not as matter of existing right, but as matter of mutual concession and [NAME]. Such treaties would be superfluous, if the [NAME] assent of [NAME] had given to each a three-mile belt of the sea surrounding its shores. As regards usage, "the only usage found to exist, is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined." [NAME] comes to the conclusion that "it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes, to the local State," and that "a [NAME] which should now deal with this portion of the sea as its own, so as to make [NAME] within it [NAME] to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other [NAME]. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but from the acquiescence of other [NAME], some outward manifestation of the national will, in the shape of open practice, or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the [NAME], not previously amenable to our [NAME] law, [NAME] to its control."

1. (1877) 2 C.P.D. 173.

It would be strange if the Executive Government of the Commonwealth which, as [NAME]. said in R. v. [NAME]; [NAME] [16] , can deal administratively with the external affairs of the Commonwealth, could not negotiate and ratify an [NAME] [NAME] settling the rules of [NAME] applicable to the subjects of the Conventions to which the Act gave effect. It is not inconsistent with the Commonwealth of Australia Constitution Act (63 & 64 Vict. c. 12), which, indeed, gave effect to the agreement of the people of [NAME] to unite in an indissoluble federal Commonwealth under the [NAME] and under the Constitution thereby established. The Constitution is s. 6 of that Act.

1. (1936) 55 [NAME]., at p. 644.

In [NAME] of [NAME] the following statement on "[NAME]" is made at p. 57:

the federal government created by the act of union is [NAME] and supreme, within the sphere of the [NAME] granted to it by that act; and the government acts not only upon [NAME] which are members of the confederation, but directly on the citizens. The sovereignty, both internal and external, of each several State is impaired by the [NAME] thus granted to the federal government, and the limitations thus imposed on the several State governments. The compositive State, which results from this league, is alone a [NAME] power. [NAME] [NAME], 6th ed., pp. 24-25, [NAME]: The distinguishing marks of a federal state upon its [NAME] side consist in the existence of a central government to which the conduct of all external relations is confided, and in the absence of any right on the part of [NAME] forming the corporate whole to separate themselves from it. Under the Constitution of the [NAME], for example, the central authority regulates commerce, accredits diplomatic representatives, makes treaties, provides for the national defence, declares war and concludes peace; the individual [NAME], on the other hand, are expressly forbidden to enter into any agreement with [NAME] [NAME] without the assent of Congress, to maintain military or naval forces, or to engage in war. Section 61 (executive power) of the Constitution of Australia is applicable in relation to external affairs and s. 51 (xxix.) is a power to make laws with respect to that [NAME] matter. The Act under consideration here is not extraordinary even though Australia is a federal Commonwealth.

The land underlying the sea adjacent to the coast of [NAME] respectively, or the soil that underlies it or the sea or any part of the shelf of that land are not mentioned in the Constitution. No rights of [NAME] in respect of this land or sea are implicitly reserved by the Constitution. As a whole these regions are an appendage of the continent and a sphere proper for the operation of [NAME]. A necessary intendment of the Act, 63 & 64 Vict. c. 12, would I think be that the sovereignty which the [NAME] possessed in respect of such regions would be exercisable by the Executive Government of the Commonwealth in accordance with the Constitution. In my opinion ss. 6, 10 and 11 respectively accomplish that object.

The Seas and Submerged Lands Act 1973, is, in my judgment, a law entirely supported by s. 51 (xxix.) of the Constitution and is not in conflict with s. 123 of the Constitution.

[NAME[NAME].

In these proceedings, respectively brought by each of the six [NAME] against the Commonwealth, we are called upon to decide whether the Seas and Submerged Lands Act 1973 ("the Act") is a valid law of the Commonwealth.

The Act and the Geneva Conventions.

The Act contains three main sections to which its other provisions may properly be regarded as incidental. These three sections deal respectively with sovereignty in respect of the territorial sea, sovereignty in respect of internal waters and [NAME] rights in respect of [NAME]. Section 6, which deals with the territorial sea, reads as follows:

It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the [NAME] in right of the Commonwealth. The expression "the territorial sea" means "the territorial sea of Australia": s.

5. No further definition of the term is attempted by the Act. However, the [NAME]-[NAME] is given power by proclamation to declare, not inconsistently with s. II of Pt I of [NAME] on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea, and for the purposes of such a proclamation he may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea, or of any part of it, is to be measured: s. 7.

Section 10 deals with internal waters. It provides as follows:

It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the [NAME] in right of the Commonwealth.

In the Act, the term "continental shelf" has the same meaning as in [NAME] on [NAME]: s. 3(1). Article 1 of that [NAME] defines the term as follows:

For the purpose of these articles, the term "continental shelf" is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.

By s. 11 of the Act, it is provided:

It is by this Act declared and enacted that [NAME] rights of Australia as a [NAME] in respect of [NAME[NAME], for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the [NAME] in right of the Commonwealth. The [NAME]-[NAME] has power by proclamation to declare, not inconsistently with [NAME] on [NAME] or any relevant [NAME] agreement to which Australia is a party, the limits of the whole or any part of [NAME[NAME]: s. 12.

The Act contains three saving provisions in ss. 14, 15 and 16. Those sections read as follows:

14. Nothing in this Part affects sovereignty or [NAME] rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, [NAME] or harbour and—

(a) were, on 1st January, 1901, within the limits of a State; and

(b) remain within the limits of the State,

or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters.

15. Nothing in this Part shall be taken to vest in the [NAME] in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works.

16. The preceding provisions of this Part—

(a) do not limit or exclude the operation of any law of the Commonwealth or of a Territory in force at the date of commencement of this Act or coming into force after that date; and

(b) do not limit or exclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or [NAME] rights otherwise than as provided by the preceding provisions of this Part.

The Act recites that Australia is a party to [NAME] on the Territorial Sea and the Contiguous Zone and to [NAME] on [NAME]. Each of those Conventions was signed at Geneva on 29th April 1958. A copy of each is contained in a schedule to the Act. It is unnecessary to do more than give a brief indication of the nature of their provisions. [NAME] on the Territorial Sea and the Contiguous Zone declares that the sovereignty of a state extends, beyond its land territory and its internal waters, to the territorial sea and to the airspace above it as well as to its bed and subsoil: s. I of Pt I. The limits of the territorial sea are dealt with in s. II of Pt I. Having regard to the provisions of s. 10 of the Act it should perhaps be mentioned that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast, but in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured: Arts. 3, 4(1). Ships of all [NAME] are to enjoy the right of innocent passage which is defined and regulated by s.

III. A [NAME] is given the right to exercise, in a zone of the high seas contiguous to its territorial sea, the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea or punish any such infringement committed within its territory or territorial sea: Pt II.

By [NAME] on [NAME] it is provided that the [NAME] exercises over [NAME] [NAME] rights for the purpose of exploring it and exploiting its natural resources: Art. 2(1). The rights of the [NAME] over [NAME], which are defined and qualified by other provisions of [NAME], do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters: Art. 3.

Before it can be decided whether the Act is valid, it is necessary to determine its true meaning. Sections 6 and 10 speak of "sovereignty". That word is at best imprecise, but when used in relation to a [COMPANY] it assumes protean qualities. No [NAME] can doubt that, for the purposes of [NAME], Australia is now a [NAME]. It is "a [NAME] which governs itself by its own authority and laws without dependence on any [NAME] power" (see [COMPANY]. v. [NAME] [17] where a passage from [NAME] is cited). However, for the purposes of the municipal law of Australia there exists that division of [NAME] authority which is characteristic of, if not essential to, a federal constitution. All the [NAME] of government are distributed between the [NAME]. [NAME] on the Territorial Sea and the Contiguous Zone deals with sovereignty only for the purposes of internatonal law. It recognizes that a [NAME] is, for the purposes of [NAME], [NAME] of the territorial sea as it is of its land territory and internal waters, but it is not concerned with the way in which the municipal law of any [NAME] distributes its sovereignty or with the question where, according to the constitution and laws of any state, the [NAME] of government are reposed. [NAME] recognizes that the sovereignty of Australia extends to its territorial sea; it says nothing as to whether that sovereignty is vested solely in the Commonwealth or is divided between the [NAME].

1. [1924] [NAME]. 797, at p. 807.

If the Act did no more than echo [NAME], and declared that for the purposes of [NAME] the Commonwealth is the state recognized as [NAME] of the territorial sea, as it is of the land, there would be no doubt as to its validity. If the intention of the Act were merely to give effect to [NAME], it would be natural to start with the assumption that "sovereignty" has the same meaning in the Act as in [NAME]. However, there are a number of indications that the purpose of the Act is to do a great deal more than simply give effect to [NAME]. Sections 6 and 10 do not declare that the sovereignty of Australia extends beyond its land territory and its internal waters to the territorial sea; they declare and enact that the sovereignty in respect of the territorial sea and internal waters is vested in, and exercisable by, the [NAME] in right of the Commonwealth. Although it is not very material, I should say that it appears to me that the words "vested in" govern "the [NAME] in right of the Commonwealth" and not merely "the Commonwealth". The reference to "the [NAME] in right of the Commonwealth" indicates that the Act, unlike [NAME], distinguishes between the position of the [NAME]. Section 14 also makes it clear that the Act is concerned with the Commonwealth not as a person at [NAME], but vis-à-vis [NAME]. The sovereignty which the Act vests in the [NAME] in right of the Commonwealth is intended to carry with it the ownership of the seabed and subsoil; if this were not so, the provisions of s. 15 would be unnecessary. Moreover, s. 16 appears to assume that if it were not for the provisions of that section the operation of all State laws in the territorial sea and internal waters might be excluded. When the Act says that the [NAME] in right of the Commonwealth is [NAME], it does not mean only that when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail; it asserts an ampler sovereignty than that. The Act, on its proper construction, in effect declares that the [NAME] in right of the Commonwealth has plenary and unlimited [NAME] over the territorial sea and internal waters, and is the owner of the seabed and subsoil beneath them.

When s. 11 refers to "[NAME] rights of Australia as a [NAME] in respect of [NAME[NAME]", it does not anywhere indicate that those rights are to be limited by reference to [NAME] on [NAME]. The section in effect assumes that Australia has [NAME] rights in respect of [NAME] and vests those rights in, and makes them exercisable by, the [NAME] in right of the Commonwealth.

A final question of construction that arises is whether ss. 6 and 10 intend to enable the Executive Government of the Commonwealth to exercise all the [NAME] of sovereignty—legislative, executive and judicial—in respect of the territorial sea and internal waters. The use of the words "and exercisable by" after "is vested in" in those sections suggests that it was intended not only to assert sovereignty but also to give the [NAME] the right to exercise all the [NAME] which belong to sovereignty. However, the expression "the [NAME] in right of the Commonwealth" does not naturally refer to the [NAME]-[NAME] or the [NAME]-[NAME] in Council. The Act itself, in ss. 7 and 8, confers [NAME] upon the [NAME]-[NAME] by that name and this strengthens the view that "the [NAME]" in the Act does not mean the Executive Government. In my opinion, the Act does not purport to confer legislative, executive and judicial [NAME] on the [NAME]-[NAME]; its intention is to assert that the [NAME] in right of the Commonwealth is invested with, and may exercise, sovereignty over the territorial seas and internal waters. Further legislation would be necessary to enable any organ or instrumentality of the Commonwealth to exercise any specific power. On this view no question arises as to whether the [NAME] has in effect abdicated its legislative power or has improperly commingled judicial and other [NAME].

[NAME].

In my opinion there is no doubt that the Act will be valid if, when it was passed, the territorial sea and internal waters (and the airspace above and the seabed and subsoil below them) were already [NAME] to the sovereignty of the [NAME] in right of the Commonwealth, and the [NAME] in such right already had [NAME] rights over [NAME]. It cannot be doubted that the [NAME] has power to declare the existence of sovereignty or [NAME] rights that have previously become vested in the [NAME] in right of the Commonwealth. Further, the [NAME] in right of the Commonwealth had power to acquire sovereignty over the territorial sea and internal waters, and [NAME] rights over [NAME], if that sovereignty and those [NAME] rights were not already vested in the [NAME] in some other capacity, e.g. in right of [NAME], and the [NAME] had power to legislate to give effect to such an acquisition. The Act will, however, be invalid in whole or in part if, when it was passed, the territorial sea or inland waters formed part of the territory of any of [NAME], or [NAME] had rights of property in the bed and subsoil beneath those waters, or in [NAME].

In [NAME] v. [COMPANY]. [NAME]. said [18] :

It still lies within the prerogative power of the [NAME] to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of [NAME] is not required. That statement, in my respectful opinion, correctly [NAME] the law. The acquisition of territory by a [NAME] for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state. For statements and illustrations of this principle it is enough to refer to [NAME] v. Secretary of State in Council of India [19] ; [NAME] v. [NAME] [20] , and Secretary of State for India v. [NAME] [21] . Those cases were concerned with the acquisition of territory on land but the same principle applies where the [NAME], in the course of its relations with other [NAME], asserts sovereignty over an area of sea, or [NAME] rights over [NAME], either pursuant to [NAME] treaty or even by unilateral action. The prerogatives of the [NAME] to acquire new territory or extend its sovereignty or jurisdiction are, in my opinion, available to the [NAME] in right of the Commonwealth. 1. [1968] 2 [NAME]. 740, at p. 753. 2. [1906] 1 K.B. 613, esp. at pp. 639-640. 3. [1926] [NAME]. 518. 4. [1941] [NAME]. 356, esp. at pp. 370-371.

An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of new [NAME] rights over [NAME], might be effected by executive act, but might validly be authorized, ratified or given recognition by legislation. In my opinion, the power conferred upon the [NAME] by s. 51 (xxix.) to make laws with respect to external affairs would authorize legislation of that kind. It is quite unnecessary for present purposes to consider the difficult questions to which the words of s. 51 (xxix.) can in some cases give rise. The extension of the sovereignty of the Commonwealth over territory, whether on land or at sea, which is not already part of the Commonwealth, is a matter that affects the external relations of the Commonwealth. An assertion of sovereignty in those circumstances would be entirely [NAME] in character and would not affect the rights of [NAME] but would, on the other hand, involve the Commonwealth's relations with other [NAME]. The same would of course be true of an assertion of [NAME] rights in [NAME], assuming that to be no part of the territory of [NAME]. Legislation which gave effect to an extension of sovereignty or [NAME] rights in those circumstances would be legislation with respect to external affairs on the narrowest view of s. 51 (xxix.). It would be unnecessary (but perhaps possible) also to justify such legislation by reference to the principle that [NAME] extend to "whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government" ([NAME]-[NAME] (Vict.); Ex rel. [NAME] v. The Commonwealth [22] , and see [NAME] v. The [NAME] [23] ).

1. (1945) 71 [NAME]. 237, at p. 269; also at p. 266. 2. (1975) 134 [NAME]. 338.

Once the Commonwealth had extended its sovereignty, or had newly acquired [NAME] rights, it could make laws to provide in what organs the sovereignty and [NAME] rights should be vested and by what instrumentalities the [NAME] attendant on them might be exercised. Where new land territory is acquired, laws for the government of that territory would, it appears, be made under the power conferred by s. 122 rather than that conferred by s. 51 (xxix.): [NAME] v. [NAME] [24] . However, I would gravely doubt whether s. 122 provides a source of power to legislate for the government of an area of the ocean or of [NAME]. A territory to which s. 122 refers must be capable of representation in the [NAME] and it is difficult to regard a tract of sea detached from the land as such a territory and impossible to treat [NAME] as answering that description. However, it could not be doubted that the [NAME] would have power to make laws for the exercise of the Commonwealth's sovereignty and [NAME] rights over an area of sea or over [NAME]; such power would arise either from s. 51 (xxix.), s. 51 (xxxix.) or from the status of the Commonwealth as a national government.

1. (1960) 106 [NAME]. 186, at p. 197.

The position would, however, be entirely different if the territory over which the Commonwealth claimed sovereignty or [NAME] rights was already part of the territory of a State. A law to divest [NAME] from a State and vest them in the Commonwealth could not be regarded as a law with respect to external affairs; such a law would relate to the internal organization of the [NAME] and not to its [NAME] relations. The existence of the Commonwealth as a state and the exercise of its functions as a national government do not enable it to alter at will the distribution of [NAME] made by the Constitution. Moreover, it is well settled that the only power given by s. 51 to make laws for the acquisition of property is that conferred by par. (xxxi.), which is [NAME] to the condition that the acquisition must be on just terms: Re Döhnert Müller Schmidt and Co.; [NAME]-[NAME] (Cth) v. [NAME] [25] . The power conferred by s. 122 is not [NAME] to a similar limitation: [NAME] [NAME] v. The Commonwealth [26] ; that, however, does not assist the Commonwealth in the present case. If, when the Act was passed, the seabed and subsoil under the territorial sea and internal waters formed part of the territory of the State the Act, in so far as it purported to acquire without compensation proprietorial rights for the Commonwealth, would be plainly invalid.

1. (1961) 105 [NAME]. 361, at pp. 370-372. 2. (1969) 119 [NAME]. 564.

It follows from what I have said that the Act cannot be justified as having been made for the purpose of carrying out or giving effect to the Conventions. The [NAME] authorizes the [NAME] to make a law for the purpose of carrying out or giving effect to a treaty, at least if the treaty is in reference to some matter indisputably [NAME] in character. The tests suggested in R. v. [NAME]; [NAME] [NAME] [27] for determining whether a statutory enactment is made for the purpose of carrying out or giving effect to a treaty are conveniently collected in the judgment of [NAME[NAME]. in [COMPANY]. v. [NAME] [No. 2] [28] . Whichever of those tests is applied, it should in my opinion be held that the Act was not made for such a purpose. As I have already pointed out, the Conventions are not concerned with the manner in which the rights and [NAME] granted by [NAME] to coastal [NAME] are distributed by the municipal law of a [NAME] which is a [COMPANY], whereas the principal object of the Act is to effect such a distribution for the purposes of the municipal law of Australia. The existence of the Conventions no more justifies the [NAME] in redistributing the [NAME] of government in respect of the territorial waters of the Commonwealth than it would justify a redistribution of [NAME] in respect of the land territory of the Commonwealth. Moreover, some important provisions of the Conventions are not reproduced in the Act. A most significant omission is that of any reference to the right of innocent passage to which the sovereignty recognized by [NAME] on the Territorial Sea and the Contiguous Zone is made [NAME]. Similarly, the Act does not incorporate the limitations which [NAME] on [NAME] places on [NAME] rights of a [NAME] over [NAME].

1. (1936) 55 [NAME]. 608. 2. (1965) 113 [NAME]. 54, at p. 141.

The questions raised in these cases as to the scope and nature of the [NAME] of the Commonwealth are in my opinion neither difficult nor doubtful. The difficult questions relate to the position of [NAME]; they are whether, on 4th December 1973 when the Act was passed, the territorial sea and internal waters, and the bed and subsoil beneath them, and [NAME] formed part of the territory of [NAME] or whether the [NAME] in right of [NAME] was then the owner of that bed and subsoil and of [NAME].

The Bed and Waters of the Territorial Sea.

It is convenient first to consider whether by the law [NAME] the territorial sea forms part of the territory of the [NAME] and whether the [NAME] is the owner of the bed of the sea between low-water mark and the outer limit of the territorial sea. (It is unnecessary, I think, to discuss separately the ownership of the subsoil, for if the [NAME] is the owner of the bed there can be no question that it is the owner of the subsoil as well.) These two questions, although related, are separate, and a decision that the territorial sea is not part of the territory of the [NAME] does not necessarily mean that the [NAME] is not the owner of the seabed. If these questions are answered in the affirmative it will become necessary to consider whether at [COMPANY] the territorial sea adjacent to a [NAME] was part of the territory of the [NAME], or part of the territory of the [NAME], and whether the bed of the territorial sea adjacent to a [NAME] was owned by the [NAME] or by the [NAME] in right of the [NAME]. If the entitlement was that of the [NAME] in right of the [NAME], the question will arise whether it now vests in the [NAME] in right of the State.

On behalf of the Commonwealth, much reliance was placed on Reg. v. [NAME] [29] , which is said to establish that the territory of the [NAME] does not extend beyond the land mass, that is, below low-water mark. Before I discuss that case, I would turn to the decisions, given before Reg. v. [NAME], in which consideration was given to the proprietary rights of the [NAME] in respect of the bed of the sea.

1. (1876) 2 Ex. D. 63.

The authorities, in my opinion, leave no doubt that according to the law [NAME] the soil of the sea below low-water mark, adjoining the coasts [NAME] or English territory, is the property of the [NAME], unless a [NAME] has acquired a right to it by grant or prescription. If there is room for debate it is as to how far out to sea the right of the [NAME] extends. That question must be answered by reference to English, not [NAME], law. I need not refer to past controversies or present disagreements as to the limits of the territorial sea. [NAME] and Australia now claim that the breadth of the territorial sea is [NAME] marine league—it extends to the three-mile limit. Before the eighteenth century Britain's claims were more extensive. In some cases it has been unnecessary to consider or to decide to what distance seawards from low-water mark [NAME] ownership extends, but in my opinion it can now be taken as established that it extends to the three-mile limit.

The question whether the [NAME] owns the land below low-water mark fell for decision in the Privy Council in [NAME] v. [RESPONDENT] [30] . In that case the respondent, the [NAME] of a manor, who claimed the exclusive right to cut seaweed growing on rocks below low-water mark off the coast of Jersey, obtained from the [NAME] an order granting him permission to notify the appellant that he should desist in future from going to the rocks and appropriating the seaweed, and ordering the appellant to pay damages and costs. On appeal to the Privy Council the judgment was reversed and a new trial directed because the respondent had failed to prove that he had acquired the right which he claimed, either by grant or prescription. [NAME] [NAME] said [31] :

The sea is the property of the [NAME], and so is the land beneath it, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a [NAME] has either had a grant from the [NAME], or has exclusively used for so [NAME] a time as to confer on him a title by prescription This is the law [NAME], and the cases referred to prove that it is the law of Jersey. 1. (1829) 1 [NAME] 60 [12 [NAME]. 243]. 2. (1829) 1 [NAME], at pp. 67-68 [12 [NAME]., at p. 246].

In [NAME]-[NAME] v. Chambers [32] , a dispute arose between the [NAME] and certain landowners as to the ownership of minerals which lay under the sea and the contiguous seashore. It does not appear to have been disputed that the [NAME] was entitled to the minerals under the sea and the shore—the question was how far landwards the [NAME]'s right to the seashore, and therefore the minerals, extended. However, [NAME] [NAME] [NAME]. in his judgment apparently regarded the concession that the [NAME] was entitled to the minerals under the sea as correctly made; he said [33] :

What, in the absence of all evidence of particular usage, is the limit of the title of the [NAME] to the seashore? The [NAME] is clearly in such a case, according to all the authorities, entitled to the "littus [NAME]" as well as to the soil of the sea itself adjoining the coasts [NAME]. 1. (1854) 4 [NAME]. 206 [43 [NAME]. 486]. 2. (1854) 4 [NAME]., at p. 213 [43 [NAME]., at p. 489].

In [NAME] v. Commissioners of Woods and Forests [34] the [NAME] held that salmon-fishings in the open sea round the coast of Scotland, unless parted with by grant, belonged exclusively to the [NAME]. It had been argued that the claim was too wide, because the fishings had no definite seaward limit. [NAME]. disposed of this difficulty by holding that the right extended only to those modes of fishing which implied either the connexion of the apparatus with the coast, or the use and possession of the coast [35] . [NAME] [NAME], after mentioning the doubts he had been caused by the indefinite nature of the claim, went on to say [36] :

I think an observation that was made is not unentitled to considerable weight, namely, that if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the [NAME], in England at least, to the bed of the sea, because that is undefined; yet nobody doubts that such a right exists. [NAME] [NAME] expressed agreement with the [NAME]'s judgment and added [37] : besides the limits he has stated of the fishing being connected with the coast, it may be worth while to observe that it would hardly be possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of [NAME] belongs to the coast of the country, that which is under the [NAME] of the country by being within cannon range, and so capable of being kept in perpetual possession. 1. (1859) 3 [NAME]. 419. 2. (1859) 3 [NAME]., at pp. 454-455. 3. (1859) 3 [NAME]., at p. 465. 4. (1859) 3 [NAME]., at pp. 465-466.

The question was again discussed in the [NAME] in [NAME] v. [NAME] [38] . The company of [NAME], which had become entitled to a royalty of fishery and oyster dredging in "the arm of the sea which forms the estuary of the Thames, opposite to the manor of [NAME] in the open sea way, being the high road for the passage of vessels" [39] , claimed to be entitled to exact tolls from vessels which anchored on the fishery below low-water mark. This claim succeeded in the Common Pleas and the Exchequer Chamber but failed in the [NAME]. Both of the Courts below held that the [NAME], being entitled to the soil of the seabed, could grant it to a [NAME] and with it the right to charge a toll for anchoring upon it [40] and [41] . In reversing the decisions below, the [NAME] did not deny that the [NAME] owned the soil of the seabed; they held that the grant by the [NAME] of any part of the soil below low-water mark was by [NAME] [NAME] to the public right of navigation, of which the right to anchor is an essential part, and that no property could be claimed in the soil except [NAME] to this overriding right [42] . The remarks of two members of the House, [NAME] [NAME]. and [NAME] [NAME], as to the property of the [NAME] in the bed of the sea, appear to have been confined to internal waters [43] . However, the judgment of [NAME] [NAME] was not so limited. He said [44] :

The case of the respondents is very shortly and distinctly stated by [NAME] Chief Justice Erle in his judgment in this case. He says, "The soil of the sea shore, to the extent of three miles from the beach, is vested in the [NAME], and I am not aware of any rule of law which prevents the [NAME] from granting to a [NAME] that which is vested in itself. If the [NAME] did grant the soil of the shore in question, it may well be that the right of taking an anchorage toll of 1s. was granted with it."

With great respect for the learned Chief Justice, I do not think it can be assumed as an unquestionable proposition of law, that, as between the [NAME] and its subjects, the sea shore, to the extent mentioned, is the property of the [NAME] in such an absolute sense as that a toll may be imposed upon a [NAME] for the use of it in the regular course of navigation. In stating the right of the [NAME] in the sea shore, the text [NAME] invariably confine it to the soil between high and low water mark. The three miles limit depends upon a rule of [NAME], by which every independent State is considered to have territorial property and jurisdiction in the seas which wash their coasts within the assumed distance of a cannon-shot from the shore. Whatever power this may impart with respect to [NAME], it may well be questioned whether the [NAME]'s ownership in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation.

1. (1865) 11 [NAME]. 192 [11 [NAME]. 1305]. 2. (1865) 11 [NAME]., at p. 208 [11 [NAME]., at p. 1312]. 3. (1861) 11 [NAME].) 387, at p. 413 [142 [NAME]. 847, at p. 857]. 4. (1863) 13 [NAME].) 853, at pp. 857-860 [143 [NAME]. 337, at pp. 339-340]. 5. (1865) 11 [NAME]., at p. 209 [11 [NAME]., at p. 1312]. 6. (1865) 11 [NAME]., at pp. 207, 210-211 [11 [NAME]., at pp. 1312, 1313]. 7. (1865) 11 [NAME]., at pp. 217-218 [11 [NAME]., at pp. 1315-1316].

In [NAME] v. [NAME] [45] the Court of Session had to consider the nature of the [NAME]'s right to mussel scalps on the seashore of Scotland. In fact, according to the report, "the greater part of the scalps lay between high and low water mark" [46] . It is not altogether clear whether it was necessary to decide what rights the [NAME] had below low-water mark, but two members of the Court stated that the solum of the sea adjoining the coast, and not merely the foreshore, belonged to the [NAME] [47] .

1. (1868) 6 S.C. 199. 2. (1868) 6 S.C., at p. 201. 3. (1868) 6 S.C., at pp. 209, 213.

It was at this stage of the development of the law that Reg. v. [NAME] [48] was decided. Although that case was not primarily concerned with any question of [NAME] ownership of the seabed it does discuss that question, and it is convenient to refer to the decision now. The [NAME] was a [NAME] in command of a [NAME] ship, which, while passing within three miles of the English shore on a voyage to a [NAME] [NAME], collided with a [NAME] ship causing the death by drowning of a passenger on that ship. He was charged with manslaughter. The question for the Court of [NAME] was whether the [ADDRESS] had jurisdiction [49] . A majority of seven of the thirteen judges answered that question in the negative. There has been much debate as to the true ratio of the decision. It was clear that the [ADDRESS] had, for relevant purposes, only the jurisdiction formerly possessed by [NAME]. The majority of the Court held that [NAME] had no jurisdiction to try offences (other than piracy) committed by [NAME] on [NAME] ships at sea. Moreover, the majority considered that the effect of 13 Ric. II, c. 5, was that [NAME] would have had no jurisdiction if the offence was committed "within the realm". The prosecution was thus in a dilemma which [NAME[NAME]., who delivered the principal judgment for the majority, thus expressed [50] :

To put this shortly. To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction of [NAME]. But [NAME] never had criminal jurisdiction over [NAME] ships on the high seas. How, when exercising the functions of a [NAME] judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorized by statute? On the other hand, if this sea is to be considered as territory, so as to make a [NAME] within it liable to the law [NAME], it cannot come under the jurisdiction of the [NAME]. Thus, on the view taken by the majority, the [ADDRESS] lacked jurisdiction whether or not the sea within the three-mile limit formed part of the territory [NAME]. In [NAME] v. [NAME] [51] [NAME] [NAME]. said that the ratio decidendi of Reg. v. [NAME] [52] "is, that, for the purpose of jurisdiction (except where under [NAME] circumstances and in [NAME] [NAME] has thought fit to extend it), the territory [NAME] and the sovereignty of the Queen stops at low-water mark". However, in Secretary of State for India v. [NAME] [NAME] [53] [NAME] [NAME] said that "that case had reference on its merits solely to the point as to the limits of [NAME] jurisdiction; nothing else fell to be there decided". In my opinion it is apparent that a decision in Reg. v. [NAME] [52] could have been reached without deciding whether the territory [NAME] stopped at low-water mark. In any case I find it surprising that it should be thought that a decision as to the jurisdiction of the [ADDRESS], given by the narrowest of majorities after an extreme conflict of judicial opinion, should be treated as binding by this Court in deciding a question as to the limits of the territory of the [NAME]. 1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at p. 64. 3. (1876) 2 Ex. D., at p. 230. 4. (1877) 2 C.P.D. 173, at p. 177. 5. (1876) 2 Ex. D. 63. 6. (1916) [NAME]. 43 [NAME]. 192, at p. 199; 85 [NAME]. 222, at p. 224. 7. (1876) 2 Ex. D. 63.

Of those judges who formed the majority in Reg. v. [NAME] only [NAME[NAME]. discussed the question of the [NAME]'s ownership of the seabed. He said that there was "beyond question, ancient authority in abundance for the assertion that the bed of the sea is part of the realm [NAME], part of the territorial possessions of the [NAME]" [54] . However, he regarded those authorities as based on the doctrine that the [NAME] had sovereignty over the whole of the narrow seas and said "that when the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was suggested to be consequent upon it must necessarily go with it" [55] . Taking this view it was still necessary for him to explain what he called "encroachments on the sea" such as harbours, piers, breakwaters and forts, and to deal with the question of the ownership of mines under the bed of the sea below low-water mark. He gave substantially the same explanation in both cases as follows: "Beyond low-water mark the bed of the sea might be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier." [56] . This observation seems quite inconsistent with [NAME] v. [NAME] [57] , to which [NAME] did not refer. Indeed he mentioned only two of the cases decided on this question during the nineteenth century before Reg. v. [NAME], and then briefly and in a different context. He did refer to some of the remarks of [NAME] [NAME] in [NAME] v. [NAME] [58] , but said that they were "wholly unnecessary to the question before the House" [59] . He also cited what was said by [NAME]. in [NAME] and [NAME] v. [NAME] [60] and made the following comment: "The learned [NAME] Chief Justice overlooked the fact that the time when the grant was supposed to have been made was centuries before the idea of a three-mile belt of sea had been thought of " [61] . However, he did not refer to the judgments in the [NAME] in the [NAME] [62] . In my opinion the decisions which I have cited show that if the rule as to the [NAME]'s ownership of the seabed was originally based on the doctrine that the [NAME] had sovereignty over the narrow seas, it survived the demise of that doctrine, and the three-mile limit came to be the limit of the [NAME]'s property.

1. (1876) 2 Ex. D., at p. 195. 2. (1876) 2 Ex. D., at p. 196. 3. (1876) 2 Ex. D., at p. 199. 4. (1829) 1 [NAME]. 60 [12 [NAME]. 243]. 5. (1859) 3 [NAME]. 419. 6. (1876) 2 Ex. D., at p. 227. 7. 11 [NAME].) 387, at p. 413 [142 [NAME]. 847, at p. 857]. 8. (1876) 2 Ex. D., at p. 228. 9. (1865) 11 [NAME]. [11 [NAME]. 1305].

The current of authority as to the ownership of the seabed continued to run on in its former channel undeflected by the decision in Reg. v. [NAME] [63] . In three cases from Scotland questions arose respectively as to whether the [NAME] had the right to prevent the deposit of dredgings in [NAME], or to make a grant of minerals under the bed of the sea beyond the foreshores of the Firth of Forth, or to the property in mussel scalps on the foreshore and bed of the river Clyde: [COUNSEL] v. [NAME] [64] ; [COUNSEL] v. [COUNSEL] [65] ; [COUNSEL] v. [COUNSEL] [NAME] [66] . In each case it was held that the [NAME] was the owner of the soil under the adjacent waters below the low-water mark, and it was said that the ownership extended to the three-mile limit, although in [COUNSEL] [NAME] v. [COUNSEL] [NAME] [COUNSEL] spoke of "the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit" being vested in the [NAME] [67] . These cases were concerned with the law of Scotland, but they do not depend on principles peculiar to Scottish law, and in [COUNSEL] v. [COUNSEL] [NAME] the Earl of [NAME]. said that he thought that there was no relevant difference between the law [NAME] and the law of Scotland [68] . It appears that the cases related only to internal waters, although the judgments do not rest on that circumstance. [NAME] [NAME] v. [NAME] [69] also concerned internal waters, this time in England, but in the course of his judgment [NAME]. said [70] :

Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the [NAME] The whole doctrine of "incrementa [NAME]" seems to depend on the beneficial ownership of the [NAME] in the bed of the sea, which in the older authorities is sometimes referred to as the [NAME]'s royal waste. 1. (1876) 2 Ex. D. 63. 2. (1891) 19 S.C. 174, esp. at p. 177. 3. [1900] [NAME]. 48. 4. [1904] [NAME]. 364. 5. [1900] [NAME]., at p. 66. 6. [1904] [NAME]., at p. 368. 7. [1908] 2 Ch. 139. 8. [1908] 2 Ch., at pp. 166-167.

Although by this time it was no longer open to doubt that the [NAME] has a right of property in the bed of the sea below low-water mark, the question whether the right extended to the three-mile limit was left open by the [NAME] in two cases concerning fishing rights: [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [71] and [NAME]-[NAME] (Canada) v. [NAME]-[NAME] (Quebec) [72] . [NAME] considered it inexpedient to pronounce upon the question, which in their opinion involved [NAME] relations and [NAME]. Between the times when those two cases were heard the question had, however, arisen in two other matters that came before the Board. In [NAME]-[NAME] (Southern Nigeria) v. [NAME]. ([COMPANY]. [73] , [NAME] had to consider the doctrine of accretion from the sea and in the course of their judgment they spoke of "the [NAME] as [NAME] of the sea and its bed within territorial limits, and or foreshore" [74] . In Secretary of State for India v. [NAME] [NAME] [75] , islands had formed in the bed of the sea near the mouth of the river Godaveri, within three miles of the coast of [NAME]. The [NAME] of [NAME] in Council by notification under an Act of [NAME] constituted lands on the islands a reserved forest, but provision was made by the Act for persons claiming rights in the lands to have their claims considered. The respondents claimed the lands. Their claim failed; the Board held that the island upon their formation became the property of the [NAME] and that the respondents had failed to establish adverse possession for sixty years. It is made quite clear throughout the judgment delivered by [NAME] [NAME] that the reason why it was held that islands, when they appeared, were the property of the [NAME] was because the seabed from which they had risen was itself the property of the [NAME] and within [NAME] territory. [NAME] [NAME] in his article on "The Australian Maritime Domain", Australian Law Journal, vol. 44 (1970), at pp. 195-196, criticizes the decision, and says that its real basis should have been that islands formed within the territorial sea are [NAME] to the sovereignty of the [NAME] on the "portico" doctrine in [NAME] [76] . However, the ground on which the Board actually rested its decision was that which I have stated. [NAME] [NAME] said: "The [NAME] is the owner, and the owner in property, of islands arising in the sea within the territorial limits of the [NAME]." [77] . [NAME] [NAME] considered that the law as he had stated it was "supported by the preponderating considerations of practical convenience" [78] —a comment with which, with respect, I completely agree.

1. [1914] [NAME]. 153, at pp. 174-175. 2. [1921] 1 [NAME]. 413, at p. 431. 3. [1915] [NAME]. 599. 4. [1915] [NAME]., at p. 611. 5. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 6. (1805) 5 [NAME]. 373 [165 [NAME]. 809]. 7. (1916) [NAME]. 43 [NAME]., at p. 201; 85 [NAME]., at p. 226. 8. (1916) [NAME]. 43 [NAME]., at p. 203.

There is another aspect of the decision in Secretary of State for India v. [NAME] [NAME] [NAME] [75] that may be mentioned immediately, although it relates to a different question which I shall later discuss. [NAME] [NAME] said that the islands arose "within [NAME] territory" [79] and were the property of "the [NAME]" [80] . These words were written at a time when India had still not attained responsible government. Further, it was not questioned that the [NAME] of [NAME] could effectively constitute the lands upon the islands a reserved forest; there was no suggestion that the power to deal with them could only be exercised in London.

1. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 2. (1916) [NAME]. 43 [NAME]., at p. 199; 85 [NAME]., at p. 224. 3. (1916) [NAME]. 43 [NAME]., at pp. 199, 203.

Finally, in [NAME] [81] [NAME]. said:

The territorial waters of the [NAME] are defined by the Territorial Waters Jurisdiction Act, 1878, as any part of the open sea within [NAME] marine league of the coast measured from low-water mark. The [NAME] claims property in the soil of the sea under its territorial waters and also claims to be entitled to the mines and minerals under that soil: see [NAME[NAME], 3rd ed., vol. 39 (1962), p. 556. It follows that if through negligence a ship is sunk in [NAME] territorial waters as a result of negligence with the result that it impedes access to an important waterway, the [NAME] would be entitled to remove it as interfering with a right and to recover the cost in damages for negligence. 1. [1969] P. 136, at p. 155.

Notwithstanding the doubts expressed by the [NAME] in the two appeals from Canada, there is in my opinion overwhelming authority in favour of the view that according to English law the [NAME] is the owner of the seabed from the low-water mark to the three-mile limit. The earlier dicta of [NAME]. to the contrary in Reg. v. [NAME] [82] were erroneous.

1. (1876) 2 Ex. D. 63.

The fact that the [NAME] owns the seabed supports the conclusion that the territorial sea itself is part of the territory of the [NAME]. The alternative, that although the seabed is part of the territory of the [NAME] the sea above it is not, seems incongruous. Other circumstances also support that conclusion. There is no doubt that the [NAME] has power to enact legislation which operates over the area of the territorial sea. In Reg. v. [NAME], [NAME]. accepted that this was so [83] and another member of the majority, [NAME]., went out of his way to emphasize that the competence of the [NAME] to legislate in respect of the territorial sea is unfettered [84] . Of course the legislation of the [NAME] can validly be given an extra-territorial operation and if the intention of the legislation is clear it is immaterial whether or not the law is characterized as extra-territorial. Where the legislation is that of a [NAME] the distinction is material, because of the doctrine of extra-territorial incompetence which came to be evolved in relation to [NAME], but the view taken by those concerned to advise on the validity of [NAME] legislation was that "there is jurisdiction over territorial waters because these are "intra-territorial" ": see per [NAME]. in Reg. v. [NAME] [85] , citing [NAME] [NAME]. The English courts were given jurisdiction to try offences committed by [NAME] within territorial waters by the Territorial Waters Jurisdiction Act 1878 Imp. which, as the Earl of [NAME]. said in [NAME] v. [NAME]. [86] , reversed the judgment in Reg. v. [NAME] [82] . The [NAME] courts also exercised jurisdiction in respect of offences committed within the territorial sea; the various sources of that jurisdiction are discussed in [COMPANY]. v. [NAME] [87] ; [NAME] v. [NAME] [88] and Reg. v. [NAME] [89] . The circumstances that the [NAME] is the owner of the seabed and subsoil beneath the territorial sea, and that there is full legislative competence and curial jurisdiction over the territorial sea are enough to show that the territorial sea is part of the territory of the [NAME], notwithstanding that by [NAME] vessels of other [NAME] have the right of innocent passage over it. Various theories have been expressed by learned [NAME] on [NAME] as to the nature of the right of a state over its territorial waters and not all [NAME] concede that the [NAME] has sovereignty: see [NAME], [NAME] of the Sea, 6th ed. (1967), pp. 88 et seq. and [NAME], [NAME], 2nd ed. (1970), pp. 467 et seq. However, by the beginning of the twentieth century the view accepted by leading [NAME] in England was that a [NAME] has sovereignty over its territorial waters: see [NAME], [NAME], 5th ed. (1904), pp. 152-153; [NAME], [NAME] (1904), vol. 1, pp. 183-184; [NAME], [NAME] (1905), vol. 1, pp. 239-240. It is this view of [NAME] that in my opinion has come to be accepted by English law. There are three decisions of the highest authority that accord with the opinions that I have expressed and are contrary to the statements of the majority in Reg. v. [NAME] [90] . In [NAME] v. The Queen [91] , where the question for decision was whether goods had been unladen from a ship within the [NAME] of Sierra Leone, the [NAME] said that the jurisdiction of that [NAME] appeared to extend three miles seaward [91a] and went on to hold on the facts that when the goods were unshipped the vessel "was not beyond the three miles which form the limit of the jurisdiction of the [NAME]" [92] . Since as a matter of fact the vessel was beyond the three-mile limit when the goods were unloaded, it was not strictly necessary to decide how far the territoral limits of the [NAME] extended, provided that they did not extend more than three miles, but the decision is at least authority that the low-water mark was not the limit of the [NAME], for if it had been the whole inquiry in the case would have been unnecessary. In [NAME] v. [NAME]. [93] a [NAME] officer, who had seized ammunition in the territorial waters of [NAME], was sued in England for tort and claimed that his act was justifiable by the law of the place where it was committed. The seizure was held to be lawful by the law of [NAME] and the question then became whether it had occurred within the territories of the [NAME]. The [NAME] answered this question in the affirmative. [NAME] [NAME] said: "It was committed in the territorial waters of [NAME], which are, in my opinion, for this purpose, as much a part of the [NAME]'s [NAME] as the land over which he exercises absolute and unquestioned sway" [94] . In Secretary of State for India v. [NAME] [NAME] [95] the Privy Council, as I have already shown, accepted that the territorial waters are part of the territory of the [NAME].

1. (1876) 2 Ex. D., at pp. 198, 207-208, 231. 2. (1876) 2 Ex. D., at pp. 238-239. 3. (1974) 131 [NAME]. 203, at p. 270. 4. [1902] [NAME]. 176, at p. 181. 5. (1876) 2 Ex. D. 63. 6. [1947] Tas. [NAME]. 11. 7. [1963] S.A.[NAME]. 96. 8. (1974) 131 [NAME]. 203. 9. (1876) 2 Ex. D. 63. 10. (1866) [NAME]. 1 [NAME]. 198. 11. (1866) [NAME]. 1 [NAME]., at p. 214. 12. (1866) [NAME]. 1 [NAME]., at p. 216. 13. [1902] [NAME]. 176. 14. [1902] [NAME]., at pp. 182-183. 15. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222.

Much legislative and administrative practice, both in the [NAME] and in the [NAME], during the latter part of the nineteenth century proceeded on the assumption that the territorial sea formed part of the territory of the [NAME]. I shall give some instances of this when I come to deal with the question whether the territorial sea formed part of the territory of [NAME], but it is convenient at this stage to refer to two important statutes passed by the [NAME] before [COMPANY] which clearly recognized that the territorial sea adjoining the [NAME] was part of the territory of the [NAME]. By s. 15 of the Federal Council of [NAME], 1885 the Federal Council was given legislative authority in respect (inter alia) of the following matters—

(c) Fisheries in Australasian waters beyond territorial limits;

(g) The custody of offenders on board ships belonging to Her [NAME]'s [NAME] beyond territorial limits.

The expression "territorial limits" in these provisions naturally meant the limits of the territorial waters of [NAME] and it was so understood by the Federal Council in enacting The [NAME] and Bêche-de-mer Fisheries (Extra-territorial) Act of 1888 and The [NAME] and Bêche-de-mer Fisheries (Extra-territorial) Act of 1889: see [NAME] v. [NAME], per [NAME[NAME]. [96] . When the Constitution was enacted the words of s. 15(c) of the Federal Council of [NAME], 1885 were echoed in s. 51 (x.) by which the [NAME] was given power to make laws with respect to "Fisheries in Australian waters beyond territorial limits". It was held by five members of the Court in [NAME] v. [NAME] [97] that waters within three miles of the Australian shores are waters within "territorial limits" as those words are used in s. 51 (x.). So construed the Constitution itself establishes that the territory of the [NAME] includes the territorial sea. 1. (1969) 122 [NAME]. 177, at pp. 203-204. 2. (1969) 122 [NAME]. 177.

[NAME] and [NAME] in right of [NAME].

However, the Commonwealth submits that before [COMPANY] the seabed beneath the territorial sea was vested in the [NAME], not in the [NAME] in right of any of [NAME], and that the territory of a [NAME] did not include any part of its territorial sea. This submission is supported by the observations of [NAME]. and [NAME[NAME]. in [NAME] v. [NAME] where, however, the question was not argued and did not fall for decision.

In [NAME] v. [NAME] [98] , [NAME] said: "The [NAME] is [NAME] and indivisible throughout the [NAME], and it acts in self-governing [NAME] on the initiative and advice of its own [NAME] in these [NAME]." The question whether land belongs to the [NAME] in right of a [NAME], or, as it may be compendiously put, belongs to the [NAME], depends on whether the right to the beneficial use of the land or its proceeds has been appropriated to the [NAME] and is [NAME] to the control of its legislature, and, when the beneficial use of land or its proceeds has been appropriated to a [NAME], the right of disposing of the land can only be exercised by the [NAME] under the advice of the [NAME] of that [NAME]: [COMPANY]. v. [NAME] [99] , [NAME] [1] . It is therefore necessary to consider whether the [NAME] of the [NAME] immediately before [COMPANY] had power to control the use of the territorial sea and of its bed and whether the rights of the [NAME] in relation to the territorial sea and the seabed were exercised on the advice of its [NAME] in [NAME].

1. (1919) 26 [NAME]. 276, at p. 282; [1919] [NAME]. 696, at p. 706. 2. [1903] [NAME]. 73, at p. 79. 3. [1931] 1 D.[NAME]. 865, at p. 877; approved [1932] [NAME]. 28, at p. 40.

When each of the [NAME] became self-governing the control of the waste lands of the [NAME] "in" or "within" the [NAME] was vested in the [NAME]: see [NAME] Government Act (1855) (18 & 19 Vict. c. 54), s. II, and Constitution Act, s. XLIII; Wastelands Act (1855) Imp. (18 & 19 Vict. c. 56), ss. 5, 7; Constitution Act (1855) Vict., s. 54; Constitution Act of 1867 Q., s. 30; [NAME] Australia Constitution Act (1890), s.

3. There is in my opinion much to be said in favour of the view that the lands under the territorial sea were just as much waste lands of the [NAME] in or within the [NAME] as were lands above high-water mark. The legislature of [NAME], at least, acted on that view: the Wastelands Act (1858) Tas., s.

32. But if the submarine lands were not technically waste lands of the [NAME] within the meaning of these statutes, the plenary [NAME] of legislation conferred on the legislature of each [NAME] when it attained self-government were wide enough to empower it to make laws for the control of the lands under the territorial sea and for the regulation of conduct on the territorial sea itself. In fact, before [COMPANY], the various colonies made laws for the establishment of harbours and the construction of wharves, jetties and breakwaters, the control of navigation and pilotage, the maintenance of lighthouses and lightships, the regulation of fishing, whaling and prawning, and of diving for pearl shell and bêche-de-mer, the grant of oyster leases and licences to get marine fibres and sponges, and the grant of leases to enable mining to be carried out below low-water mark, and for customs and quarantine purposes. The validity of this legislation was not questioned by the courts or by the [NAME] in London. On the contrary, opinions given by the [NAME] in London, many of them lawyers of great distinction, consistently affirmed that the authority of the [NAME], in Australia and elsewhere, extended for three marine miles from low-water mark: see [NAME], Opinions on [NAME] (1971), esp. pp. 123-125, 154-155, 159-160, 190-197. It might be possible to regard some of this legislation as extra-territorial but nevertheless sufficiently connected with the [NAME] to be within power, but that cannot truly be said of all of it. For example, it seems to me that if the doctrine of extra-territorial incompetence were logically applied, and unless the waters within the three-mile limit were regarded as part of the [NAME], a [NAME] would have no more right to prevent [NAME], in a [NAME] boat, from fishing in the territorial sea except under licence than it would to prevent them from hunting in the neighbouring [NAME]. If the territorial sea is outside the [NAME], how can [NAME] justify legislation regulating the exploitation of the minerals under the seabed or the pearl-shell upon it?

Under the [NAME] conferred by [NAME] statutes the [NAME], on the advice of its [NAME], did in fact dispose of interests in, and control the use of, the lands beneath the territorial sea. Leases were granted to enable mining to be carried out beneath the Pacific Ocean off the coast of [NAME] and licences were granted to fish for pearls and bêche-de-mer in the waters of [NAME] and [NAME] Australia. Hundreds of wharves and jetties extending below low-water mark were built—in the ocean, not only in internal waters—particularly along the coasts of [NAME] and [NAME] Australia. It would have been absurd if the [NAME]'s right to control the use of the seabed adjoining a [NAME]—for example the right to authorize the building of a pier or to grant an oyster lease—could only have been exercised on the advice of Her [NAME]'s [NAME] 12,000 miles away in London. The practical administrators in Whitehall did not descend to such absurdity. Once self-government had been granted to a [NAME] neither the [NAME] nor the [NAME] sought to fetter the decisions of [NAME] as to the use of the territorial sea or the seabed. It has been suggested that the territorial sea was of [NAME] interest because of its importance from the point of view of security and defence. That, however, could not be said of the seabed, at least before [COMPANY]; although today the security of a [NAME] may be menaced from the bed of the sea, in the less complicated days of the nineteenth century the seabed had little to do with the security and defence of [NAME] adjoining its coasts. No doubt forts might have been built on the seabed, but they could also be built on the land. Moreover, most of the matters that in fact arose in relation to the sea itself—the control of fishing, for example—had nothing to do with security or defence.

[COMPANY] the territorial sea and lands beneath it were in fact [NAME] to the control of the [NAME]. Of course the [NAME] had power to pass legislation which, if repugnant to the laws of [NAME], would prevail over them, but that was equally true of legislation that related to the control of the land. Moreover, the right of disposing of interests in the seabed was in fact exercised by the [NAME] on the advice of the [NAME]. In [NAME] v. [NAME]-[NAME] (N.S.W.) [2] , [NAME[NAME]. said: "It is a mere truism to say that the title of the [NAME] to the lands of the [NAME] was in right of his Sovereignty of the [NAME], in other words in right of the [NAME]." This observation is in my opinion equally true of the submarine lands beneath the territorial sea.

1. (1913) 16 [NAME]. 404, at p. 442.

It was submitted on behalf of the Commonwealth that the boundaries of the [NAME] did not extend below low-water mark and that accordingly the area of the territorial sea was never within the limits of any of [NAME]. It would be unprofitable to examine the instruments which created the various [NAME] and delimited their extent. Notwithstanding that in some instruments the word "territories" (which it was submitted on behalf of some of [NAME] includes the territorial sea) was used, I am prepared to assume that the express words of the instruments in question did not include the territorial sea. However, the [NAME] was [NAME] of the [NAME], and the territorial sea adjoining the [NAME] was part of the territory of the [NAME]; the rights and property of the [NAME] to the territorial sea and its bed were exercised on the advice of the [NAME], once the [NAME] was self-governing, and were therefore held by the [NAME] in right of the [NAME]. The effect of the doctrine that I have discussed at such length was that the description of the land territory of the [NAME] necessarily connoted that the territorial sea was a part of the [NAME], and that the power of the [NAME] extended over the territorial sea. As [NAME[NAME]. said in [NAME] v. [NAME]' Association [3] : "But the grant of [NAME] of self-government to a component portion of the [NAME] connotes, primarily, restriction of their exercise to the limits of the local territory and its adjacent sea limit as recognized universally and by statute." Put in another way, the description of a [NAME] as lands bounded by the sea is to be construed as including the territorial sea, in the same way that a description of parcels as bounded by a non-tidal river is construed prima facie as including so much of the river bed as lies between the bank and the middle of the stream. If what I have said is incorrect, it would be difficult to see on what principle internal waters came to be part of a [NAME]. The waters of [NAME] are no more within the express description contained in the instruments creating [NAME] than are the waters of the Pacific Ocean within three miles of the [NAME] coastline. However, in my opinion a [NAME], although described only by reference to its land or its coast, received as part of its territory the sea and seabed within the three-mile limit; on the other hand, a [NAME], such as [NAME], which comprised all "Islands and Territories" lying between lines on a map which encompassed large tracts of sea, could not claim that the sea formed part of its territory unless it was within a marine league from the coast or from an island within the bounded areas.

1. (1913) 16 [NAME]. 664, at p. 690.

It is immaterial whether it was right to describe [NAME] as [NAME] [NAME] and equally immaterial that they were not internationally recognized as persons. The [NAME] was [NAME]. The territorial sea vested in the [NAME], and the [NAME]'s sovereignty was recognized internationally, if that matters, for, as I have already indicated, we have to apply English law, and are concerned with [NAME] only if it has been accepted as part of English law. The question is in what right did the [NAME] hold the territorial sea.

For the reasons I have given, I conclude that at the time of [COMPANY] the bed of the territorial sea adjacent to each of [NAME] was vested in the [NAME] in the right of that [NAME] and that the territorial limits of the [NAME] extended to the three-mile limit.

The Effect of [COMPANY].

Nothing that occurred on [COMPANY] altered the pre-existing situation. That which had been the territory of [NAME] became the territory of [NAME]; the rights of the [NAME] in right of [NAME] passed to the [NAME] in right of [NAME]; the legislative [NAME] of [NAME] became exercisable by the State [NAME]. For complete accuracy it would be necessary to qualify the generality of these statements by reference to such sections as 52, 85 and 90 of the Constitution, but those sections have no relevance to the present case. Of course the territorial seas of [NAME] became part of the Commonwealth, just as the land territories of [NAME] became part of the Commonwealth, but that does not mean that they ceased to be part of the territories of [NAME]. The fact that the [NAME] of the Commonwealth was given power to legislate with respect to external affairs meant only that a law validly made under that power would prevail over inconsistent State laws; the existence of the power did not divest [NAME] of their territories.

On the other hand, if I were wrong, and the territorial sea was a part of the territories of the [NAME] but not part of any of [NAME], and the seabed was vested in the [NAME] in its [NAME] right, this situation would have remained unaltered on [COMPANY]. If the territory of [NAME] ended at low-water mark, the territory of the new Commonwealth, which was formed by the [COMPANY] of [NAME], similarly ended there. The very arguments that would deny that the seabed was owned by the [NAME] in right of [NAME], would, if accepted, mean that immediately after [COMPANY] it was not owned by the [NAME] in right of the Commonwealth. At the time of [COMPANY] the Commonwealth was not an independent [NAME]—not a person recognized by [NAME]. That remained the situation until after the First World War—probably at least until after the [NAME] of 1926. At [COMPANY], and until the Statute of Westminster, the Commonwealth had no more power to enact legislation having extra-territorial operation than did any State. It is therefore significant that in cases decided soon after [COMPANY] it was accepted that the territory of the Commonwealth extended to the three-mile limit: [NAME] v. [NAME] [4] ; [NAME] v. [COMPANY]. [5] . That could only have been the case if the territories of [NAME] also extended to the three-mile limit.

1. (1906) 4 [NAME]. 395, at p. 404. 2. (1908) 5 [NAME]. 737, at p. 744.

The view that the territories of [NAME] included the territorial sea has been accepted in a number of decisions in the [NAME]: [NAME] v. [NAME]; [NAME] [NAME] [6] ; [COMPANY]. v. [NAME] [7] ; Commissioner of Taxation v. [COMPANY]. [8] . Those cases are consistent with [NAME] v. The Queen [9] , [NAME] v. [NAME]. [10] , and Secretary of State for India v. [NAME] [NAME] [11] . The same view was taken by the majority of the Court in D. v. [NAME] [12] . However, in that case [NAME] [NAME]. [13] took a different view, being influenced, in my opinion wrongly, by what he regarded as the effect of Reg. v. [NAME] [14] .

1. [1911] St. R. Qd. 57. 2. [1914] St. R. Qd. 302, at pp. 313, 319-320, 325. 3. (1936) 36 [NAME]. (N.S.W.) 544, at p. 549. 4. (1866) [NAME]. 1 [NAME]. 198. 5. [1902] [NAME]. 176. 6. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 7. [1941] St. R. Qd. 218. 8. [1941] St. R. Qd., at pp. 228-229. 9. (1876) 2 Ex. D. 63.

In my opinion the "territorial limits" referred to in s. 51 (x.) of the Constitution were the territorial limits of the Commonwealth (which are in part, but not entirely, coterminous with the territorial limits of [NAME]). With the greatest respect, I am unable to agree with the views expressed in [NAME] v. [NAME] [NAME] [15] that the reference is to [NAME] territorial limits.

1. (1969) 122 [NAME]. 177.

There is a final matter that provides confirmation of the view that the territorial sea is not under the exclusive legislative control of the Commonwealth. It has consistently been held that the effect of s. 51 (i.) and s. 98 of the Constitution is to endow the [NAME], not with a substantive power to deal with navigation and shipping at large, but only with power to deal with that [NAME] in so far as it is relevant to inter-State and [NAME] trade and commerce: [COMPANY]. v. [NAME]-[NAME] (Cth) [16] ; [NAME] v. The Commonwealth [17] ; Australian Coastal Shipping Commission v. [NAME] [18] . If the territorial sea were part of the Commonwealth territory, and [NAME] to plenary Commonwealth power, there would seem no reason why the [NAME] could not deal with any navigation and shipping within the three-mile belt, including purely intra-State navigation and shipping.

1. (1921) 29 [NAME]. 357. 2. (1947) 74 [NAME]. 421, at p. 455. 3. (1962) 107 [NAME]. 46, at p. 54.

[NAME].

It remains to consider some decisions of the Supreme Court of the [NAME] and a decision of the Supreme Court of Canada. Judgments of those Courts are, of course, not binding upon us but we always consider them with the greatest respect.

In the [NAME] competing claims by the [NAME] and [NAME] to the ownership and control of the adjacent seas and seabed have led to protracted litigation. In [NAME] [19] , it was held that the [NAME] was the owner of, and possessed of paramount rights in and [NAME] over, the submerged lands lying within three miles of the coast of [NAME]. The argument advanced on behalf of [NAME], which also claimed the lands, raised two separate issues, although in discussion they are not kept altogether distinct. In the first place, [NAME] relied on the fact that its territorial boundary, as laid down in the Constitution which it adopted in 1849, and as ratified in the Enabling Act of 1850 by which it was admitted to the Union, included the waters of the sea extending three miles from the shore, and asserted that in consequence it was entitled to the ownership of the lands under that area of the sea. Secondly, by the Enabling Act, [NAME] was admitted to the Union on "an equal footing" with the other [NAME], and it was claimed that the original thirteen [NAME] had acquired ownership to the three-mile belt of water adjacent to their shores and the lands under it, and that [NAME] must therefore be accorded similar rights of ownership to enable it to stand on an equal footing with those thirteen [NAME]. [ADDRESS] rejected the view that the thirteen colonies had acquired ownership to the three-mile belt or the soil under it. [ADDRESS] said that when the thirteen original colonies won their independence—that is, in 1776, or at latest 1783—there was no [NAME] custom or understanding that a [NAME] owned the three-mile belt of ocean adjacent to its shores, and that the [NAME] recognition during the nineteenth century of national rights in the territorial sea resulted in large part from the endeavours of the government of the [NAME] [20] . In other words the Court considered that in fact the [NAME] accomplished the first acquisition of the three-mile belt [21] — an historical argument that has no application to the case of the Commonwealth. There was, however, a second ground for the decision, namely that protection and control of the three-mile belt "is a function of national external sovereignty" [22] . Stated shortly, the view of the Court on this aspect of the case would appear to be that the [NAME], which has the paramount responsibility for maintaining [NAME] relations, preserving peace and engaging in world commerce, must necessarily have the ownership of the three-mile belt, which is of vital importance for those purposes (see particularly the discussion at [23] ). By way of example, it was mentioned that the "very oil about which the State and [NAME] here contend might well become the [NAME] of [NAME] dispute and settlement" [24] . Two comments may be permitted on this view. The first is that its correctness is not self-evident. [NAME]., in the course of rejecting the view of the majority, said [25] :

This ownership in [NAME] would not interfere in any way with the needs or rights of the [NAME] in war or peace. The power of the [NAME] is plenary over these undersea lands precisely as it is over every river, farm, mine, and factory of the [NAME]. And [NAME]., who also dissented, pointed out that the oil under the sea is no more vital to the national security, and no more likely to be the [NAME] of [NAME] dispute, than uranium under the land [26] . The second comment that may be made is that considerations of national policy cannot override rules of law, and in any case courts are not always the best judges of national policy. In fact Congress apparently took a rather different view from the Supreme Court of what the national policy required, for by the Submerged Lands Act of 1953 [NAME]. the ownership of the lands beneath navigable waters within the boundaries of the respective [NAME], and the resources within those lands and waters, were vested in the respective [NAME]. 1. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889]. 2. (1947) 332 [NAME]., at pp. 32-34 [91 Law. Ed., at pp. 1895-1897]. 3. (1947) 332 [NAME]., at p. 34 [91 Law. Ed., at pp. 1896-1897]. 4. (1947) 332 [NAME]., at p. 34 [91 Law. Ed., at p. 1897]. 5. (1947) 332 [NAME]., at pp. 35-38 [91 Law. Ed., at pp. 1897-1899]. 6. (1947) 332 [NAME]., at p. 35 [91 Law. Ed., at p. 1897]. 7. (1947) 332 [NAME]., at pp. 42-43 [91 Law. Ed., at p. 1901]. 8. (1947) 332 [NAME]., at pp. 44-45 [91 Law. Ed., at p. 1902].

[NAME] [27] was followed in [NAME] v. [NAME] [28] and [NAME] v. [NAME] [29] , where it was held that the [NAME], rather than [NAME], was possessed of paramount rights in, and full [NAME] and power over, lands underlying the Gulf of Mexico and extending seawards from low-water mark for twenty-seven miles (in the case of [NAME]) and to the outer edge of [NAME] (in the case of [NAME]). In the first of those cases the Court accepted both of the reasons given for the decision in [NAME] [27] —that [NAME], like the original colonies, never acquired ownership in the territorial sea, and that since the territorial sea is of national concern, national rights must be paramount in that area [30] . The first of these reasons was not, however, applicable in the case of [NAME]. That State was proclaimed a Republic in 1836 and admitted to the Union in 1845. [ADDRESS] assumed that as a Republic, [NAME] had not only full sovereignty over the territorial sea but ownership of it and of the land underlying it [31] . However, they applied the "equal footing" doctrine in reverse and held that when [NAME] entered the Union she relinquished her rights over the territorial sea [32] . Three members of the Court took a different view. [NAME[NAME]. said [33] : "[ADDRESS] now decides that when [NAME] entered the Union she lost what she had and the [NAME] acquired it. How that shift came to pass remains for me a puzzle."

1. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889]. 2. (1950) 339 [NAME]. 699 [94 Law. Ed. 1216]. 3. (1950) 339 [NAME]. 707 [94 Law. Ed. 1221]. 4. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889]. 5. (1950) 339 [NAME]., at p. 704 [94 Law. Ed., at p. 1219]. 6. (1950) 339 [NAME]., at p. 717 [94 Law Ed., at p. 1227]. 7. (1950) 339 [NAME]., at p. 717-718 [94 Law. Ed., at p. 1227]. 8. (1950) 339 [NAME]., at p. 724 [94 Law. Ed., at p. 1230].

Finally, in [NAME] v. [NAME] [34] , the Supreme Court was invited to overrule the earlier decisions but declined to do so. Apparently because of [NAME]' submission that it was erroneous to deny that prior to independence the thirteen colonies had substantial rights in the territorial sea, the Court appointed a [NAME] to take evidence and submit a report. The [NAME], the [NAME], presented a report in which, after learnedly discussing the history of the claims made by littoral [NAME] to adjacent seas, he said (at p. 46):

I find that some time before 1776 the earlier English pretensions to sovereignty over the English seas and with them the claim of the [NAME] to the seabed of those seas had been abandoned and were beginning to be replaced by the new concept of a marginal band of sea within cannon shot of the shore, a distance which was later to be equated with three miles, in which the [NAME] could enforce neutrality, control fishing and exercise other [NAME] [NAME]. I find no evidence, however, that the idea of sovereignty over the marginal belt of sea, in a territorial sense, was accepted in either English or American law until well into the nineteenth century. Later he said (at p. 47): I conclude that when in 1776 the American colonies achieved independence and when in 1783 the Treaty of Paris was concluded, neither the [NAME] nor [NAME] individually had any right of ownership of the seabed of the sea adjacent to the American coast, except for those limited areas, if any, which they had actually occupied. [ADDRESS] did not find it necessary to consider for itself the history relevant to the question whether [NAME] had claims to the seabed, for even if they had that would not have disposed of the matter. [ADDRESS] found it enough to accept and apply the rule, which was repeated time and again in the earlier cases, "that paramount rights to the offshore seabed inhere in the federal Government as an incident of national sovereignty" [35] . 1. (1975) 420 [NAME]. 515 [43 Law. Ed. 2d 363]. 2. (1975) 420 [NAME]., at p. 524 [43 Law. Ed. 2d, at p. 370].

Thus in the end the [NAME] decisions depend on considerations of policy, and they are considerations which seem to me to assume a conclusion which is not logically necessary. It does not follow that because the central government in a [COMPANY] has exclusive responsibility for the conduct of [NAME] relations, and because the ocean is of vital importance for the maintenance of peace and the conduct of trade, the central government should have exclusive [NAME] over the territorial sea. The same argument, if valid, would apply to the land and the airspace over it. The proposition that before 1783 neither the [NAME] nor any [NAME] had any right of ownership in the bed of the territorial sea (although apparently [NAME] had acquired such a right before 1845) may in my opinion be doubted, but if it is correct a change had occurred in English law before the end of the nineteenth century, and that is the time with which we are concerned.

In Canada a dispute between the [NAME] and [NAME] [NAME] as to the ownership of and jurisdiction over the seabed and subsoil seaward from low-water mark to the outer limits of the territorial sea of Canada, and as to the right to exploit the resources of [NAME] beyond the limits of the territorial sea, was decided in favour of Canada in Reference re Ownership of Off-Shore Mineral Rights [36] . The reasons for the decision may be shortly summarized as follows: Reg. v. [NAME] [37] decided that the territory [NAME] ends at low-water mark. The Territorial Waters Jurisdiction Act, 1878 did not enlarge the realm [NAME]. Early Canadian legislation is inconsistent with the theory that the [NAME] possessed as part of their territory the solum of the territorial sea. Dicta contrary to the majority judgment in Reg. v. [NAME] should be disregarded. In 1871 when [NAME] [NAME] joined the [NAME] it did not have ownership of, or property in, the territorial sea. The rights in the territorial sea formerly asserted by the [NAME] in respect of the [NAME] of [NAME] [NAME] were after 1871 asserted by the [NAME] in respect of the [NAME]. Some time after the signing of the Treaty of Versailles in 1919 Canada became a [NAME] with full capacity to acquire new areas of territory and new jurisdictional rights which might be available under [NAME]. The effect of the Territorial Sea and Fishing Zones Act of 1964 Can., and of the [NAME] of 1958, is that Canada is recognized in [NAME] as having sovereignty over a territorial sea three nautical miles wide; it is part of the territory of Canada.

1. [1967] [NAME]. 792; (1967) 65 D.[NAME]. (2d) 353. 2. (1876) 2 Ex. D. 63.

[ADDRESS] held that Canada has exclusive legislative jurisdiction in respect of the bed of the territorial sea either under s. 91 (1A) of the [NAME] America Act Imp. or under the residual power in s. 91; [NAME] [NAME] has no legislative jurisdiction; the lands under the territorial sea are outside its boundaries, and not within the [NAME], and therefore do not fall within any of the enumerated heads of s. 92 of the [NAME] America Act.

[ADDRESS] further held that [NAME] with regard to [NAME] is a recent development and that the rights now recognized by [NAME] to explore and exploit the natural resources of [NAME] do not involve any extension of the territorial sea. They held that [NAME] is outside the boundaries of [NAME] [NAME] and that Canada is the [NAME] which should be recognized by [NAME] as having the rights stated in [NAME].

The decision that the lands under the territorial sea did not belong to [NAME] [NAME] rests, in my opinion, on the authority of the views of the majority in Reg. v. [NAME] [38] . It will appear from what I have said that I respectfully consider that the Supreme Court gave too much weight to those views and too little attention to the other decisions that I have discussed. It is unnecessary for me to consider whether the Court was right in concluding that if the territorial sea did not belong to the [NAME] it now belongs to Canada. What was said as to the legislative power of the [NAME] is clearly inapplicable to the position of the [NAME] whose legislative [NAME] are not limited in the manner indicated in s. 92 of the [NAME] America Act. I am not persuaded, either by the Canadian or the [NAME] authorities, to depart from the views I have already expressed. With the conclusion reached in relation to [NAME] I am, however, as will be seen, in [NAME] agreement.

1. (1876) 2 Ex. D. 63.

The Validity of Section 6 of the Act.

For the reasons which I have elaborated at length I hold that when the Act was passed the territorial sea adjacent to each State formed part of the territory of that State and the [NAME] in right of the State owned the bed and subsoil beneath the territorial sea. It follows from what I said earlier as to the [NAME] of the Commonwealth that s. 6 of the Act is invalid.

Internal Waters.

If the conclusions that I have reached in relation to the territorial sea are correct it follows, a fortiori, that s. 10 of the Act, which vests in the [NAME] in right of the Commonwealth the sovereignty in respect of the internal waters and the airspace over them and the seabed and subsoil beneath them, is bad. If, however, my views as to the territorial sea are rejected, a question remains with respect to the internal waters. At the very least the territory of [NAME] extends to low-water mark, but the Act treats as internal waters "any waters of the sea on the landward side of the baseline of the territorial sea" (s. 10). If the [NAME]-[NAME], acting under s. 7, determined that straight baselines should be drawn between appropriate points, the waters of the sea over the foreshore between low-water mark and high-water mark, as well as waters within indentations of the coast, would lie to the landward of the baselines. Section 14 would preserve the sovereignty of [NAME] in respect of areas "within any bay, gulf, estuary, river, creek, inlet, [NAME] or harbour" but would not preserve State rights in respect of the shore between low- and high-water mark. The assertion of Commonwealth sovereignty to this comparatively small, but not altogether unimportant, area must on any view be invalid.

[NAME].

The rules of [NAME] now established by [NAME] on [NAME] are of recent origin. In the judgment of the [NAME] in the North Sea Continental Shelf Cases [39] , it was said that the "[NAME]", issued by the Government of the [NAME] on 28th September 1945, "soon came to be regarded as the starting point of the positive law on the [NAME], and the chief doctrine it enunciated, namely that of the [NAME] as having an original, natural, and exclusive (in short a vested) right to [NAME] off its shores, came to prevail over all others, being now reflected in Article 2 of the 1958 [NAME] on [NAME]" [40] . Claims similar to those made in the [NAME] were made by the Commonwealth Government in a proclamation dated 10th September 1953 (Commonwealth Gazette, 11th September 1953, p. 2563). It is true that before [COMPANY] the [NAME] had exercised a certain control over pearl and bêche-de-mer fishing outside teritorial waters, pursuant to the two Acts of the Federal Council of [NAME] to which I have already referred. However, none of [NAME] before 1900 had made any claim to [NAME] rights over [NAME] for the purpose of exploring and exploiting its natural resources.

1. [1969] I.[NAME]. Rep. 3. 2. [1969] I.[NAME]. Rep., at par. 47.

The argument submitted on behalf of [NAME] starts with the proposition, accepted by the [NAME] in the North Sea Continental Shelf Cases that "the rights of the [NAME] in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of [NAME] rights for the purpose of exploring the seabed and exploiting its natural resources" [41] . Therefore it is said that the rights of [NAME] to [NAME], although never asserted by any [NAME] before [COMPANY], must now be taken always to have existed and that [NAME]' ownership of the seabed no longer stops at the three-mile limit but extends to the outer limits of [NAME].

1. [1969] I.[NAME]., at par. 19.

To say that the rights of coastal [NAME] in respect of [NAME] existed from the beginning of time may or may not be correct as a matter of legal theory. In fact, however, the rights now recognized represent the response of [NAME] to modern developments of science and technology, which permit the seabed to be exploited in a way which it was quite impossible for governments or lawyers of earlier centuries to foresee. In this matter the arguments of history are stronger than those of logic. In truth, when the Act was passed, [NAME] had not asserted and did not have the rights to [NAME] which [NAME] now accords to coastal [NAME]. Those rights, if theoretically inherent in the sovereignty of coastal [NAME], were in fact the result of the operation of a new legal principle. When those rights were recognized by [NAME] the Commonwealth was the [NAME] entitled to assert them, and it did so. The assertion by the Commonwealth of those rights in no way interfered with any existing right of any State.

For these reasons, in my opinion div. 2 of Pt II of the Act is valid.

Conclusion.

I would declare that div. 1 of Pt II of the Act is invalid but that div. 2 of Pt II is valid.

[NAME].

By the Seas and Submerged Lands Act 1973 there is declared and enacted to be vested in and exercisable by the [NAME] in right of the Commonwealth the sovereignty in respect of the territorial sea of Australia and of any waters of the sea on the landward side of the baseline of that sea, its bed and subsoil and the airspace over it; likewise as to [NAME] rights of Australia in respect of its continental shelf for the purpose of exploring it and exploiting its natural resources.

Each of the six [NAME[NAME] challenges the constitutional validity of this Act, denying to the [NAME] the particular legislative power which by this enactment it has purported to exercise.

The Commonwealth supports its validity by reliance upon a variety of sources of legislative power, the [NAME]—s. 51 (xxix.); its power to legislate for the government of any territory—s. 122; its power to legislate with respect to matters incidental to the execution of its executive power—s. 51 (xxxix.) and s. 61; and the power inherent in it as an [NAME] to declare its sovereignty and [NAME] rights and enact them for the purposes of municipal law, aided, if necessary, by reference to s. 51 (xxxix.).

A consideration of each of these sources of legislative power requires first an understanding of what was the status of the so-called territorial sea, that is, broadly speaking, the open seas lying within three miles of Australian coasts, and which I shall call league seas, immediately before the passing of this Act. Only then can the application to them of each of these suggested sources of legislative power be determined. I will, for the moment, defer consideration of the power to legislate concerning either Australia's continental shelf or the waters to landward of the baseline of league seas; in due course it will be necessary to turn to each of these.

Because on first settlement Australia was but a part of the [NAME]'s overseas possessions it is important, at the outset, to determine what interests or rights the [NAME] then possessed in league seas, whether those of the [NAME] or of its overseas possessions.

I regard the status of the league seas off the coast of [NAME] possessions as having been authoritatively determined by the decision of [NAME] in the [NAME]. There are three decisions, reported in three successive years, in which they have been referred to. In the first in point of time, [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [42] , Sir [APPELLANT], who led for the appellant, sought to canvass the question of the title of the [NAME] to the solum of league seas but was stopped, [NAME] stating that they did not propose to deal with that question. When [NAME] came to speak for [NAME] he said that it was unnecessary for the resolution of the appeal to express "any opinion on the question whether the [NAME] has a right of property in the bed of the sea below low water mark to what is known as the three-mile limit". [NAME] distinguished between the three mile limit, a concept comparatively modern in origin, and "the narrow seas" limit discussed by the older authorities, such as [NAME] and [NAME], a principle which may safely be said to be now obsolete. He said that it was undesirable, pending [NAME] review of the matter at a conference of the [NAME] concerned, that any municipal tribunal should pronounce upon questions concerning the three mile limit and that the conflict of opinion which arose in Reg. v. [NAME] [43] would in the meanwhile have to remain unresolved, as would the question whether league seas formed part of the territory of the [NAME] or were merely [NAME] to [NAME] [NAME] necessary for protective and police purposes [44] .

1. [1914] [NAME]. 153. 2. (1876) 2 Ex. D. 63. 3. [1914] [NAME]., at p. 174.

However, only a year later [NAME] did in fact advert to the question. In [NAME]-[NAME] (Southern Nigeria) v. [NAME]. ([COMPANY]. [45] the [NAME] sought declarations as to its entitlement to certain accretions to the foreshore and when the matter came before the [NAME] the doctrine of accretion at [NAME] was much debated. In the course of [NAME]' judgment, delivered by [NAME] [NAME], the consequence of erosion of the foreshore was referred to and it was said that "if erosion had continued, [NAME] do not doubt that it would have been no defence against the claim of the [NAME] that the foreshore upon the line of inroad had de facto been transferred to the [NAME] as [NAME] of the sea and its bed within territorial limits, and of foreshore, even although the line of the eroded foreshore had made considerable invasion into the measured plots of lands, as these were described in the titles" [46] . Although but a passing reference, it is clear that [NAME] regarded the sea and its bed within territorial limits as owned by the [NAME].

1. [1915] [NAME]. 599. 2. [1915] [NAME]., at p. 611.

Then, in the following year, the third appeal, Secretary of State for India v. [NAME] [47] , came before [NAME]. It concerned the title to islands which [NAME] from the sea at the estuary of a river in India and again [NAME] [NAME] delivered [NAME]' judgment. He stated that the matter was not complicated by doubts as to the furthest possible extent of territorial waters since the islands were clearly "within three miles of [NAME] territory". The question, he said, was whether they were no man's land and "The answer is, they are not; they belong in property to the [NAME]" [48] .

1. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 2. (1916) [NAME]. 43 [NAME]., at p. 199; 85 [NAME]., at p. 224.

[NAME] then proceeded to explain the basis for this conclusion. He referred to "certain dicta" pronounced in [NAME] [49] which might be thought to raise doubts as to the [NAME]'s ownership, dicta as to the [NAME]'s [NAME] in the bed of the sea being bounded by low-water mark and extending no further seaward. [NAME] was disposed of quite shortly, [NAME] saying [50] :

It should not be forgotten that that case has reference on its merits solely to the point as to the limits of [NAME] jurisdiction; nothing else fell to be decided there. It was marked by an extreme conflict of judicial opinion, and the judgment of the majority of the Court was rested on the ground of there having been no jurisdiction in former times in [NAME] to try offences by [NAME] on board [NAME] ships, whether within or without the limit of three miles from the shore.

When, however, the actual question as to the [NAME] of the bed of the sea within a limited distance from our shores has been actually in issue, the doubt just mentioned has not been supported, nor has the suggestion appeared to be helpful or sound.

In preference to the dicta in [NAME] [49] , [NAME] turned to three decisions which they regarded as being directly in point. The first was that of [NAME]. in [NAME] v. [NAME] [51] , from which a lengthy passage was cited, which, after referring to the public rights of fishing secured by Magna Charta, concluded that, [NAME] to those rights "there seems no good reason to suppose that the [NAME]'s ownership of the bed of the sea and the beds of tidal navigable rivers is not a beneficial ownership capable of being granted to a [NAME] in the same way that the [NAME]'s ownership of the foreshore is a beneficial ownership capable of being so granted" [52] . 1. (1876) 2 Ex. D. 63. 2. (1916) [NAME]. 43 [NAME]., at p. 199; 85 [NAME]., at p. 224. 3. (1876) 2 Ex. D. 63. 4. [1908] 2 Ch. 139. 5. [1908] 2 Ch., at p. 167.

[NAME] [NAME] then turned to two Scottish cases, saying that "In Scotland the law is firmly settled, and in a similar sense". In [NAME] [NAME] v. [NAME] [53] the [NAME] had sought a declaration that the trustees were not entitled to deposit "in any part of the narrow seas of Scotland" material dredged from the river [NAME] [NAME] had said, in a passage cited by [NAME] [NAME] [54] , that the [NAME]'s right in league seas, "now acknowledged to be part of the territory of the kingdom" was not merely a protectorate for certain purposes, such as navigation and fishing but was proprietary, there being "no distinction in legal character between the [NAME]'s right in the foreshore, in tidal and navigable rivers, and in the bed of the sea within three miles of the shore. In each case it is of course a right largely qualified by public uses. In each case it is therefore, to a large extent, extra commercium; but none the less is it, in my opinion, a proprietary right—a right which may be the [NAME] of trespass, and which may be vindicated like other rights of property" [55] .

1. (1891) 29 Sc. [NAME]. 153. 2. (1916) [NAME]. 43 [NAME]., at p. 201; 85 [NAME]., at p. 225. 3. (1891) 29 S.[NAME]., at p. 156.

The second Scottish case was that of [COUNSEL] v. [COUNSEL] [56] , which concerned the ownership of minerals under the bed of the sea below low-water mark. [NAME]' judgment cited [57] what had there been said by [NAME] [NAME]; he had said [58] :

I see no reason to doubt that, by the law of Scotland, the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the threemile limit, and also the minerals beneath it, are vested in the [NAME]. [NAME] [NAME] continued, in his own words [59] : In the opinion of the Board this is also the law of India. The [NAME] is the owner and the owner in property, of islands arising in the sea within the territorial limits of the [NAME].

It should be added, with reference to the suggestion that the territory of the [NAME] ceases at low-water mark, and that the right over what extends seawards beyond that is merely of the nature of jurisdiction, or the like, that there are manifest difficulties in seeing what are the grounds for this in principle. There is nothing to recommend a local jurisdiction over a space of water lying above a res nullius.

1. [1900] [NAME]. 48. 2. (1916) [NAME]. 43 [NAME]., at p. 201; 85 [NAME]., at pp. 225-226. 3. [1900] [NAME]., at p. 66. 4. (1916) [NAME]. 43 [NAME]., at pp. 201-202; 85 [NAME]., at p. 226.

[NAME] had, of course, had cited to them [60] the then recent decision in [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [61] in which a differently composed [NAME] had found it unnecessary to pass upon the question of ownership of the solum in league waters; indeed Sir [COUNSEL] appeared as counsel in both cases.

1. (1916) [NAME]. 43 [NAME]., at p. 196; 85 [NAME]., at p. 223. 2. [1914] [NAME]. 153.

[NAME] determined in [NAME] [62] to be the law of India and what they regarded as well settled in Scottish law and as [NAME] established in English law, unaffected by dicta in [NAME] [63] , is, then, that the [NAME] is the owner of the solum underlying the league seas. This proposition is thus established on the highest of authority. That in [NAME] it was the [NAME] that was referred to reflects the fact that neither the [NAME] of [NAME], with which the case was concerned, nor India as a whole, had attained [NAME] at the time of that decision.

1. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 2. (1876) 2 Ex. D. 63.

From this flow consequences of immediate relevance to the present dispute; were it not for the lengthy debate which we have heard concerning the dicta in [NAME] [63] and affecting many other decisions of the courts and the writings of many learned authors I would pass immediately to a consideration of those consequences. However, in deference to the arguments of counsel, I propose, as shortly as may be, to express my views concerning the gradual development of law and constitutional theory which led to the situation described in [NAME] [62] . The course of this development reflects the interaction of a variety of influences; England's early predominance in naval affairs and her consequent assertion of sovereignty over ill-defined areas of water, sometimes described as the sea, or the four seas, [NAME] and, more conservatively but no less ambiguously, as the narrow seas, and later, after the Act of Union, as the [NAME] seas; the need which was felt to reconcile these heady claims to sovereignty over entire seas with the legitimate commercial interests of other [NAME] and with the like interests of [NAME] in the coastal waters of other countries; an appreciation that the common interest might be best served by some mutual moderation of claims; the growth of an [NAME] doctrine combining the concept of the freedom of the seas with that of [NAME] rights of littoral [NAME] within their territorial seas although [NAME] always to a [NAME] right of innocent passage; the development of prize law and of rules as to neutral ships and neutral waters. There were also influences of a purely domestic kind; the feudal concept that all title to land stems ultimately from a grant by the [NAME]; that the [NAME]'s ownership of the foreshore, while proprietary, is nevertheless [NAME] to public right of navigation and of fishing. Yet others, of a constitutional nature, played their part; the want of extraterritorial legislative competence on the part of [NAME]; the extent of [NAME] prerogative and the effect upon it of the grant of responsible [NAME].

1. (1876) 2 Ex. D. 63. 2. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222.

It is not surprising that the interaction of these various influences should have produced a result which, satisfactory enough from a pragmatic point of view, may not consistently reflect clear-cut principles. This is most apparent in the transition from England's wide claims of sovereignty over the English seas to the modern, and much diminished, assertion of sovereignty over and property in [NAME].

The early history [NAME]'s claims to sovereignty of the seas in Plantagenet times and before, extensively drawn upon by Selden in his Mare Clausum (1635), need not be examined; it is also enough to do no more than note in passing the transition from that climate of opinion in Tudor, and particularly Elizabethan, times, which favoured freedom of navigation and of fisheries, to the quite different [NAME] period, characterized by protracted disputation with the [NAME] over [NAME] sovereignty of the seas, beginning as early as 1609 with [NAME] [NAME] exclusion from [NAME] seas of unlicensed [NAME] fishermen. The seventeenth century saw the publication of [NAME]'s Abridgment of All Sea-laws (1613), [NAME] work on Sewers (1622), [NAME], [NAME] first Treatise (written about 1636) and his later [NAME]. All of these works and several more espoused far reaching concepts of [NAME] sovereignty over the seas, and advocates of this view were not confined to those adhering to the doctrine of the divine right of [NAME]; [NAME] was no less insistent upon [NAME] submission to the authority of the "[NAME], to whom the [NAME] of the [NAME] belong", cited in [NAME]'s Status and Extent of Adjacent Waters (1970), p. 104. Like concepts were [NAME] reflected in works of the next century—[NAME] and [NAME] , [NAME]'s Commentaries —and persisted into the early years of the nineteenth century—[NAME] of the [NAME] (1820)—although by then the ownership that is spoken of is specifically confined to "the narrow seas adjoining the English coasts" (op. cit., p. 206) and as there used "narrow seas" may mean no more than league seas.

In the realm of case law the high claims of [NAME] days, almost metaphysical in character and epitomized in the Ship Money Case, [NAME]. v. [NAME] [64] are in marked contrast to the more prosaic judgments of nineteenth century judges. Yet throughout all is to be found a consistent view that waters within league seas are [NAME] territory, that the fundum of those waters is the property of the [NAME] and that the league seas themselves are a part of the royal waste.

1. (1637) 3 State Tr. 825, esp. at pp. 1226, 1246.

It is in the first half of the nineteenth century that for the first time a substantial body of case law on the topic developed. It is enough to refer to some only of these cases. First [NAME] v. [NAME] [65] , the sea bathing case, in which appears that "most remarkable" judgment of Sir [NAME], described by the Court of Appeal in [NAME] v. [NAME] [66] as "[NAME] of the first examples we have of the way in which the judgment of an English judge ought to be expressed" [67] ; and see [68] . [NAME]. described the [NAME] as alone having the property "in the main sea itself adjacent to his [NAME]", his subjects not having "that property in the sea through the whole tract of it that the [NAME] hath " [69] . [NAME] relied extensively upon [NAME] [NAME] and not at all upon doctrines of [NAME]; he expressed what he regarded to be [NAME]. He said that by [NAME] both the shore between the flux and reflux of the tide and the sea itself belong to the [NAME], although [NAME] always to the public rights of fishing and of navigation for the purposes of commerce, trade and intercourse [70] . It was upon this judgment of [NAME[NAME]. that [NAME] founded himself in [NAME] v. [NAME] [71] in that passage which the [NAME] later were to adopt in [NAME] [72] .

1. (1821) 5 [NAME]. 268 [106 [NAME]. 1190]. 2. [1904] 2 Ch. 313. 3. [1904] 2 Ch., at p. 323. 4. [1904] 2 Ch., at pp. 326, 327. 5. (1821) 5 [NAME]., at p. 293 [106 [NAME]., at p. 1199]. 6. (1821) 5 [NAME]., at p. 298 [106 E.[NAME]., at p. 1201]. 7. [1908] 2 Ch., at p. 301. 8. (1916) L.[NAME]. 43 Ind. [NAME]., at p. 200; 85 [NAME]., at p. 225.

Seven years later, in 1828, came [NAME] v. [NAME] [NAME] [73] , a case of land formed by alluvion of the sea, and in which [NAME[NAME]., answering on behalf of the judges the questions of the [NAME], spoke of the fundum [NAME] as the property of the [NAME] [74] ; again reliance was placed squarely upon [NAME]. [NAME] [NAME] and [NAME] [NAME] affirmed the views of [NAME].

1. (1828) 5 [NAME]. 163 [130 [NAME]. 1023]. 2. (1828) 5 [NAME]., at p. 165 [130 [NAME]., at p. 1024].

In the following year, in [NAME] v. [NAME] [75] , a Jersey appeal, [NAME]., then [NAME] [NAME], speaking on behalf of the Privy Council, said of the sea that "it is the property of the [NAME] and so is the land beneath it"; he relied upon [NAME] v. [NAME] [76] and [NAME] [NAME] [76a] and described this to be both the law [NAME] and that of Jersey. It was, he said, the introduction, at the time of the Conquest, of the laws of [NAME] into England which resulted in "the laws [NAME] being precisely the same with regard to land that is below the ordinary tides, dealing with such land as a part of the bottom of the sea, and vesting the original right to it in the [NAME]" [77] .

1. (1829) 1 [NAME] 60, at p. 67 [12 [NAME]. 243, at p. 246]. 2. (1821) 5 [NAME]. 268 [106 [NAME]. 1190]. 3. (1828) 5 [NAME]. 163 [130 [NAME]. 1023]. 4. (1829) 1 [NAME], at p. 69 [12 [NAME]., at p. 247].

In the 1850s there occur two cases of note; the first is [NAME]-[NAME] v. Chambers [78] , in which the [NAME] was, by [NAME] arrangement, assisted by [NAME]. and [NAME[NAME].; it concerned the precise landward extent of the seashore. After argument by a distinguished [NAME], which included [NAME] and [NAME], the two [NAME] judges, in a joint judgment, stated the question to be decided as follows [79] :

The [NAME] is clearly in such a case, according to all the authorities, entitled to the "littus [NAME]" as well as to the soil of the sea itself adjoining the coasts [NAME]. What then, is the extent of this littus [NAME]? This case came on again before the [NAME] for further consideration in 1859 [80] . On this occasion [NAME] [NAME] cited with approval a passage from [NAME] which concluded with the words "if the alluvion or dereliction be sudden and considerable, in this case it belongs to the [NAME], for as the [NAME] is [NAME] of the sea, and as owner of the soil while it is covered with water, it is but reasonable he should have the soil when the water has left it dry" [81] . Neither in these judgments nor in the argument which preceded them was it suggested that this doctrine as to the ownership of the soil of the seabed was other than a doctrine of [NAME]. 1. (1854) 4 [NAME]. 206 [43 [NAME]. 486]. 2. (1854) 4 [NAME]., at p. 213 [43 [NAME]., at p. 489]. 3. (1859) 4 [NAME]. 55 [45 [NAME]. 22]. 4. (1859) 4 [NAME]., at p. 68 [45 [NAME]., at p. 27].

The much cited Scottish case of [NAME] v. Commissioners of Woods and Forests [82] involved the question of the [NAME]'s rights to salmon fishings in the open sea. In the joint opinion of the nine judges whose opinions were sought on appeal from first instance these salmon fishings were beneficial rights and fit [NAME] of proprietorship; with this opinion a majority of the Second Division of the Court of Session concurred. An appeal was then taken to the [NAME], on which sat [NAME] [NAME] [NAME]., [NAME] [NAME], [NAME] [NAME] and [NAME] [NAME]. The [NAME] held salmon fishings in the open sea to be the property of the [NAME]. [NAME] [NAME] agreed and added that any doubts he might have entertained, due to the great difficulty of defining to what extent the claim might go with respect to sea fishings, had been overcome because "if this doubt were well founded, an exactly similar doubt might be raised as to the prerogative right of the [NAME], in England at least, to the bed of the sea, because that is undefined; yet nobody doubts that such a right exists" [83] .

1. (1859) 3 [NAME]. 419. 2. (1859) 3 [NAME]., at p. 465.

[NAME] [NAME] also agreed but he introduced a concept of [NAME]. He said, speaking of the [NAME]'s opinion [84] :

I think it unnecessary to add anything to it, except that, perhaps, besides the limits he has stated of the fishing being connected with the coast, it may be worth while to observe that it would be hardly possible to extend it seaward beyond the distance of three miles, which by the acknowledged law of [NAME] belongs to the coast of the country, that which is under the [NAME] of the country by being within cannon range, and so capable of being kept in perpetual possession. [NAME] [NAME] likewise agreed. 1. (1859) 3 [NAME]., at pp. 465-466.

The 1860s produced a number of cases of which only two call for mention. In [NAME] v. [NAME] [85] , the [NAME] had to determine whether the grant by the [NAME] of a several fishery must necessarily be [NAME] to public rights of navigation and anchorage. In the course of his judgment [NAME] [NAME], while emphasizing that these public rights must prevail, spoke of that which the [NAME] might grant, and which in that case it was necessarily taken to have granted before Magna Carta (any grant since that date being unlawful), as "the right to the soil of the fundus [NAME] within three miles below low water mark and to the fishery in it" [86] . [NAME] [NAME], while doubting the [NAME]'s right to impose upon subjects a toll for the use of the soil of the sea as an anchorage "to this large extent", that is, as far off-shore as the three mile limit, because of his recognition of the existence of public rights of navigation, nevertheless acknowledged that that soil was the property of the [NAME]. [NAME] in this context, and referring to the three mile limit, said [87] :

Whatever power this may impart with respect to [NAME], it may well be questioned whether the [NAME]'s ownership in the soil of the sea to this large extent is of such a character as of itself to be the foundation of a right to compel the subjects of this country to pay a toll for the use of it in the ordinary course of navigation. 1. (1865) 11 [NAME]. 192 [11 [NAME]. 1305]. 2. (1865) 11 [NAME]., at p. 213 [11 [NAME]., at p. 1314]. 3. (1865) 11 [NAME]., at p. 218 [11 [NAME]., at p. 1316].

In Ipswich Dock Commissioners v. [NAME] [88] , [NAME[NAME]., with whom [NAME] and [NAME]. concurred, examined in some detail the law relating to parish boundaries at the shores of the sea and concluded that the appellant's dock was extra-parochial and was therefore not [NAME] to parish rates. In doing so he explained why the "main sea" is extraparochial; he said [89] :

In Reg. v. [NAME] it was rightly decided that what [NAME] [NAME] calls the main sea is prima facie extra-parochial, and in the absence of evidence that it forms part of a parish it must be taken that it does not; and the same reason, that it is part of the waste and demesnes and [NAME] of the [NAME], would apply to an estuary or arm of the sea: it is a part of the great waste, both land and water, of which the [NAME] is [NAME]. In so saying he paraphrased the words of [NAME] [NAME] which had been cited by [NAME]. in [NAME]-[NAME] v. [NAME] [90] . 1. (1866) 7 [NAME]. 310. 2. (1866) 7 [NAME]., at p. 344. 3. (1858) 27 [NAME]. Eq. 837.

In all these references to league seas the doctrine as to those seas which is enunciated is clearly not founded upon any concept of [NAME]; however [NAME] such concept is introduced in two of the last three cases which I have examined; both [NAME] [NAME] and [NAME] [NAME] introduced the concept of the three mile limit and this for the purpose of providing some outer boundary for the relevant seas.

With the 1870s [NAME] [91] is reached. [NAME], the [NAME] of a [NAME] vessel which, within three miles of the English coast, had collided with a [NAME] vessel causing loss of life, was charged with manslaughter and convicted. He sought to challenge the jurisdiction of the [ADDRESS] to hear the charge against him. It was decided in 1876 and, as I have endeavoured to show, at a time when it had been [NAME] established that the [NAME] had property in the seas and seabed, at least within league seas. Of the two leading judgments delivered by members of the majority, that of Sir [NAME] is much concerned with matters of [NAME], as was, of course, not inappropriate to what was in issue in the case; [NAME] made no close examination of the cases on English or Scottish municipal law to which I have referred. The same may he said of that portion of the judgment of [NAME]. particularly devoted to an examination of the authorities [92] ; [NAME], to the extent to which he touched upon such cases, was primarily concerned with matters of jurisdiction and the emergence of the doctrine of the three-mile limit of territorial waters, as is shown by his reference [93] to the [NAME] [94] , his reference to it being restricted to the case when before [NAME]. and to the Chief Justice's reference to the three-mile limit. The judgment of [NAME].[NAME]., [NAME] of the minority, did advert to a number of these precedent cases although again the emphasis was rather different from that which I have adopted. The reason for this different emphasis throughout the judgment in [NAME] [91] is that given in [NAME] in the passage already cited [95] , namely that what was in issue in [NAME] was not the question that has so [NAME] detained me in this judgment, but rather the extent of the former criminal jurisdiction of [NAME].

1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at pp. 221-229. 3. (1876) 2 Ex. D., at p. 228. 4. 11 [NAME].) 387. 5. (1876) 2 Ex. D. 63. 6. (1916) [NAME]. 43 [NAME]., at p. 199; 85 [NAME]., at p. 224.

The subsequent history of [NAME] [91] has been curious. Despite the clear pronouncement of the [NAME] of the Privy Council already referred to, Reg. v. [NAME] has nevertheless been much cited, both in judgments and by [NAME] of texts, for the proposition that the territory [NAME] ends at the low-water mark; yet it appears to me to be clear that [NAME] decided only the extent of jurisdiction of the [ADDRESS], which had inherited the [NAME] [NAME]'s jurisdiction. That jurisdiction had been restricted by 13 Ric. II c. 5, the words of which, translated from their original medieval French, having [NAME] been understood to read:

The admirals and their deputies shall not meddle from henceforth with anything done within the realm [NAME], but only with things done upon the sea. 1. (1876) 2 Ex. D. 63.

Now it was common ground in [NAME] that the criminal jurisdiction of [NAME] Courts did not extend to the open sea. [NAME].[NAME]., in delivering the leading judgment for the minority, said as much [96] :

It is admitted that [NAME] Courts never were appointed according to [NAME], and therefore never had jurisdiction by virtue of [NAME] to try crimes committed on the high or open seas, even though the crimes were committed by the Queen's subjects, because the commissions of the judges applied in terms only to counties, and the juries were summoned only to try cases within counties, and the high or open sea is within no county. The jurisdiction of [NAME] courts was limited by the territorial limits of counties, to the limits of which the judges' commissions were restricted ([NAME], History of English Law, vol. I, pp. 264-285) and it was for this reason that "between high and low-water mark the Courts of Oyer and Terminer had jurisdiction when the tide was out, the Court of [NAME] when the tide was in" (per Sir [NAME] in [NAME] [97] ). In [NAME] [98] , [NAME] [NAME] had described the sea as that "from whence no pais may come", that is to say no panel from which a jury might be selected. Hence it was exclusively to [NAME]'s jurisdiction, as transferred to the [ADDRESS], that the Court in [NAME] [99] looked, with varying results, for the answer to the question before it, whether the [ADDRESS] had jurisdiction to try [NAME] for manslaughter. However it is important to note that the fact that counties are bounded in extent by, and do not extend beyond, the shore bears not at all upon the question of ownership of the seabed. 1. (1876) 2 Ex. D., at p. 145. 2. (1876) 2 Ex. D., at p. 67. 3. (1610) 12 Co. Rep. 79, at p. 79 [77 [NAME]. 1357]. 4. (1876) 2 Ex. D. 63.

The majority in [NAME] held that [NAME]'s criminal jurisdiction had never extended to [NAME] vessels on the open sea; accordingly there existed no jurisdiction to try [NAME]. In so deciding, the majority rejected the contention of the [NAME] that, as a result of the development of [NAME], the league seas in modern times were to be regarded as [NAME] territory for the purpose of exercising jurisdiction over aliens. The fact that, by [NAME], [NAME] might properly so legislate as to extend the jurisdiction of [NAME] was, they held, no justification for the Court to usurp legislative power and itself make that extension in the absence of such legislation. All this appears clearly from what was said by [NAME[NAME]. [1] :

It is obviously [NAME] thing to say that the legislature of a [NAME] may, from the common assent of other [NAME], have acquired the full right to legislate over a part of that which was before high sea, and as such common to all the world; another and a very different thing to say that the law of the local state becomes thereby at once, without anything more, applicable to [NAME] within such part, or that, independently of legislation, the courts of the local state can proprio vigore so apply it. The [NAME] position does not follow from the other; and it is essential to keep the two things, the power of [NAME] to legislate, and the authority of our courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct, which, it is evident, is not always done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether [NAME] has the right to treat the three-mile zone as part of the realm consistently with [NAME]. That is a matter on which it is for [NAME] itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of [NAME] to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which [NAME] on the seas have been made specifically liable to our law by statutory enactment that that law can be applied to them. and again [2] : If by the assent of other [NAME] the three-mile belt of sea has been brought under the [NAME] of this country, so that consistently with the right of other [NAME] it may be treated as a portion of [NAME] territory, which, of course, is assumed as the foundation of the jurisdiction which the [NAME] are here called upon to exercise, it follows that [NAME] can legislate in respect of it. [NAME] has only to do so, and the judges of the land will, of course, as in duty bound, give full effect to the law which [NAME] shall so create. The question is, whether legislative action shall be applied to meet the exigency of the case, or judicial authority shall be strained and misapplied in order to overcome the difficulty. The reason [NAME[NAME]. gave for writing his separate judgment does but stress that the basis of the majority decision was that given by [NAME[NAME].[NAME]. in the above passages. 1. (1876) 2 Ex. D., at pp. 207-208. 2. (1876) 2 Ex. D., at p. 231.

It is because of this that I have described the subsequent history of [NAME] [3] as curious. Its explanation may lie in the various shades of meaning which can be attributed to the word "territory". To regard Reg. v. [NAME] as deciding that the territory [NAME] ends at low-water mark is to understand the word "territory" as used in the judgment of [NAME]. in the widest sense, as that area over which Britain exercised dominium and imperium. [NAME]. did not, I believe, use the word "territory" in this sense but rather as interchangeable with "realm", both describing merely all that which is within the body of any county. This the following passage from [NAME]'s judgment demonstrates [4] :

To come to the [NAME] of the realm, I cannot help thinking that some confusion arises from the term "realm" being used in more than [NAME] sense. Sometimes it is used, as in the statute of [NAME], to mean the land [NAME], and the internal sea within it, sometimes as meaning whatever the sovereignty of the [NAME[NAME] extended or was supposed to extend, over.

When it is used as synonymous with territory, I take the true meaning of the term "realm [NAME]" to be the territory to and over which [NAME[NAME] extends—in other words, all that is within the body of any county—to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of [NAME] between the realm and the sea. For centuries our judicial system in the administration of the criminal law has been divided into two distinct and independent branches, the [NAME] having jurisdiction over the land and any sea considered to be within the land; the other over the sea external to the land. No concurrent assent of [NAME], that a portion of what before was treated as the high sea, and as such common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of [NAME], convert that which before was in the eye of the law high seas into [NAME] territory, and so change the law, or give to the courts of this country, independently of legislation, a jurisdiction over the [NAME] where they had it not before. The argument in support of the contrary appears to me, I must say, singularly inconsistent with itself. According to it the littoral sea is made to assume what I cannot help calling an amphibious character. At [NAME] time it is land, at another it is water. Is it desired to apply the law of the shore to it, so as to make the [NAME] [NAME] to that law?—it becomes so much territory. Do you wish to keep it within the jurisdiction of [NAME]—as you must do to uphold this indictment?—it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of [NAME] is fatal to the argument which it is intended to support. For, if the sea thus becomes part of the territory, as though it were actually inter fauces terrae, it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the [NAME] jurisdiction. The littoral sea cannot be land for [NAME] purpose and high sea for another. Nor is anything gained by substituting the term "territory" for land. The law [NAME] knows but of [NAME] territory—that which is within the body of a county. All beyond it is the high sea, which is out of the [NAME] of English law as applicable to the shore, and to which that law cannot be extended except by legislation.

With respect to those who may think otherwise, it appears to me to be clear from this passage that the Chief Justice uses "territory" exclusively in the sense which I have suggested and that [NAME] is at all times concerned solely with the question of jurisdiction. 1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at pp. 197-198.

With reference to the concept of "realm" it should be mentioned that the Solicitor-[NAME] of [NAME], in an argument which he supported by contemporary references and by expert evidence, contended that the words "but only" in the statute of [NAME] either constituted an erroneous translation into English of the medieval French of the statute or, alternatively, bore, at the time of their original translation into English in the mid-sixteenth century the meaning, in the English of that day, of "with the exception of" or "save only", rather than carrying the exclusory meaning which "but only" commonly signifies in modern usage. Whether or not this submission be accepted it bears, I think, not at all upon the fact of [NAME] ownership of the seabed as established by the authorities which I have cited although it does, of course, go to the correctness of the conclusions of [NAME[NAME]. as to [NAME]'s jurisdiction, since [NAME] relied for those conclusions in no small measure upon this phrase "but only" which he found in the English translation of the statute of [NAME].

With the case of [NAME] v. [NAME] [5] , as subsequently understood, began what I regard as the later misinterpretation of [NAME] [6] . This case has been relied upon as [NAME] in which the three judges who constituted the Court, and who happened also to have been members of the minority in [NAME], were all of the opinion that [NAME] did decide that the territory [NAME] and the sovereignty of the Queen stopped at low-water mark. But that does not accurately represent what was said in [NAME]. [NAME] [NAME] is reported, in the Common Pleas Division report but not in the fuller report of argument in the Law Journal report, to have said in the course of argument may have contributed to the misunderstanding; however when [NAME] came to give judgment he left no room for misunderstanding. He said, speaking of [NAME] [7] :

The ratio decidendi of that judgment is, that, for the purpose of jurisdiction (except where under [NAME] circumstances and in [NAME] [NAME] has thought fit to extend it), the territory [NAME] and the sovereignty of the Queen stops at low-water mark. The matter in respect of which this action is brought, therefore, happened beyond the jurisdiction of the Queen's Courts; (emphasis added). [NAME[NAME]. made it still clearer that Reg. v. [NAME] only decided a point of jurisdiction when he said [8] : The case of Reg. v. [NAME] clearly goes the length of holding that, for all purposes, apart from any express statutory provision, the moment you get beyond low-water mark you get beyond the jurisdiction within which the Queen's writs run. Each member of the Court in [NAME]' Case speaks of territory in a jurisdictional sense, thereby equating "territory" with "realm" and the body of any county, these being the geographical limits of jurisdiction of [NAME] courts. The judgments do not at all deal with territory in the sense of [NAME] ownership or of [NAME]. Likewise in [NAME]. v. [NAME] [9] , heard by [NAME] and [NAME]. a few days after [NAME]' Case and involving a point of statutory construction, it was as to the extent of the "realm" in a parish rate appeal that [NAME] was cited. 1. (1877) 2 C.P.D. 173; 46 [NAME].C.L. 363. 2. (1876) 2 Ex. D. 63. 3. (1877) 2 C.P.D., at p. 177. 4. (1877) 2 C.P.D., at p. 178. 5. (1877) 46 [NAME]. (Mag.) 189; 36 L.T. 251.

[NAME] further point should be made in relation to [NAME] [10] itself. [NAME]. warned of the need to distinguish between the "[NAME] since abandoned" claim to sovereignty of the [NAME] seas and the more recently developed and quite different concept of a band of territorial waters of three marine miles in width, a concept derived from [NAME] [11] . The propriety of such a warning, in the context of the issue which was before the Court in [NAME]'s Case, is of course undoubted. Moreover it was, with respect, entirely accurate for [NAME] to speak of the "vain and extravagant pretensions" of [NAME] sovereignty over the seas as [NAME] since having been abandoned; however, their abandonment left the question of [NAME] ownership of the seabed off [NAME] coasts quite unaffected; that ownership was not dependent upon those pretensions, which were concerned rather with the intrusion of [NAME] war ships, with [NAME] fishing rights and with the striking of the flag within the so-called [NAME] seas. As to the more recently developed doctrine of the three-mile limit, it has no doubt, over the years, played a part in the more precise definition of that which is owned by the [NAME] off-shore; the gradual acceptance by most maritime [NAME] during the eighteenth and nineteenth centuries of the concept of a territorial sea, limited to three miles, and of freedom of the high seas beyond those limits had a particular effect upon [NAME] ownership of the seabed; it provided a conventional outer limit for that ownership. Because the whereabouts of that outer limit had been little canvassed in the courts, only ownership much closer to the shore than three miles ever arising as a practical concern, it was the easier to adopt that limit, by then well established in [NAME], as the furthest extent seawards of [NAME] ownership of the seabed.

1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at p. 175.

I would regard it as mistaken to conclude, from the abandonment [NAME] ago of [NAME] pretensions to sovereignty of the seas at large and from the adoption of the three-mile limit as the seaward bounds of [NAME] ownership, that such a wealth of judicial support for the existence of that ownership as is manifest in the case law of the nineteenth century is, as has sometimes been suggested, but the product of a confusion of concepts.

There is [NAME] further authority, later in date than [NAME] [12] , which forms a part of the [NAME] body of case law already examined. In [NAME]-[NAME] v. [NAME] [13] the [NAME] sought to establish title to land recently added, by accretion, to the shore. [ADDRESS] consisted once again of [NAME] [NAME], sitting with [NAME[NAME]., and judgment was given for the [NAME], the Court applying what was described as the "[NAME] established" rule of law as to accretion and drawing for authority upon [NAME] and [NAME] and upon the latter's references to the sea off the shore as a "parcel of waste or demesne, so of necessity the land that lies under it, and therefore it belongs to the [NAME] when left by the sea" [14] . [NAME] [NAME] cited and applied [NAME] [NAME] [15] andAttorney-[NAME] v. Chambers [16] . I have omitted reference to cases much discussed before us but which were concerned primarily with concepts of [NAME] and, in particular, with the rights of neutrality and the rights of [NAME] sovereigns; I instance " [NAME] " [17] , [NAME] [18] and [NAME] v. [NAME]. [19] . I have also omitted to refer to those cases concerned essentially with statutory interpretation, as were [NAME] [20] , [NAME]. v. [NAME] [21] , Dr. [NAME] decision in [NAME] [22] and [NAME] [23] , and the case of [NAME] v. The Queen [24] . All these cases were relied upon by [NAME] in support of the view that league seas lie within the territory of the littoral state. The view which I have formed concerning [NAME] title to league seas makes it unnecessary for me further to extend my examination of precedent cases.

1. (1876) 2 Ex. D. 63. 2. (1885) 1 [NAME]. 675. 3. (1885) 1 [NAME]., at p. 677. 4. (1824) 3 B. & C. 91 [107 [NAME]. 668]. 5. (1859) 4 [NAME]. 55 [45 [NAME]. 22]. 6. (1800) 3 [NAME]. 162 [165 [NAME]. 422]. 7. (1805) 5 [NAME]. 373 [165 [NAME]. 809]. 8. [1902] [NAME]. 176. 9. (1812) 1 Gall. 62. 10. (1860) 1 [NAME]. 180 [70 [NAME]. 712]. 11. (1856) Swab. 40 [166 [NAME]. 1007]. 12. (1860) Lush. 182 [167 [NAME]. 87]. 13. (1866) [NAME]. 1 [NAME]. 198.

I should mention here two statutes. First the Territorial Waters Jurisdiction Act 1878, enacted following the decision in [NAME]'s Case [25] and which the Earl of [NAME]., in [NAME] v. [NAME]. [26] , described as "reversing" the majority in [NAME] by "affirming in the strongest terms that the decision which had been arrived at by the majority was [NAME] that was not the law [NAME]"; and see the similar views of [NAME] in Reg. v Dudley and Stephens [27] . The Act is, like [NAME], concerned only with matters of curial jurisdicton and is to that extent not directly relevant to the present point. To the extent that modern cases have specifically relied upon it for a conclusion contrary to my own I shall have occasion to refer to it again.

1. (1876) 2 Ex. D. 63. 2. [1902] [NAME]., at p. 181. 3. (1884) 14 [NAME].D. 273, at p. 281.

The Cornwall Submarine Mines Act U.K. was enacted in 1858, before [NAME]'s Case, to give effect to arbitration proceedings between the [NAME] and the Duchy of Cornwall concerning the title to mines beneath the sea off the Cornish coast. It enacted that mines and minerals both within the county of Cornwall and under "the open sea adjacent to but not being Part of the County of Cornwall" were vested in the Queen "in right of Her [NAME] as Part of the Soil and territorial Possessions of the [NAME]": see ss. 1 and 2. In [NAME] differing views were taken of this legislation—per [NAME] [NAME] [28] and per [NAME[NAME]. [29] . In my view this legislation is significant not only because of the terms in which ss. 1 and 2 are cast but also because the contentions advanced on behalf of the Duchy did not, it seems, seek to deny the original ownership by the [NAME] of the off-shore sites of these mines; instead what was asserted was title derived by ancient grant from the [NAME]. There was thus common acceptance of [NAME] title to the seabed in league seas.

1. (1876) 2 Ex. D., at pp. 156-158. 2. (1876) 2 Ex. D., at pp. 199-202.

It seems appropriate at this stage to refer to two instances in which the [NAME], asked to advise the [NAME] Office, some years after [NAME], concerning questions which involved ownership of league seas in [NAME], took a view consistent with those authorities which I have earlier discussed. In 1895 Sir [NAME].[NAME]. and Sir [NAME].[NAME]., advising upon the rights of the [NAME] by its prerogative to make grants, in Bermuda, of the seabed for the purpose of the erection of wharves below high-water mark and within three miles seaward of that mark, stated that "the rights of the [NAME] in the foreshores and lands below high-water mark in the Bermudas are the same as under [NAME] in England". The [NAME] could, they said, accordingly by its prerogative, make grants of the soil below high water mark and within three miles of that mark under the sea adjoining Bermuda, the only qualification being that no works could be authorized which might prejudice the public right of navigation.

Later, in 1899, the same two [NAME] advised, in relation to the Straits Settlements, that "[NAME[NAME] as to foreshore and open seas within the territorial limits applies". Accordingly alienations which had been made of the subsoil of territorial waters might only be impeached if there were any substantial interference with the rights of the public in those waters.

In conclusion on this particular [NAME] matter it remains only to refer to the views of the [NAME] of Canada and of the [NAME] concerning ownership of league seas. In Reference re Ownership of Off-Shore Mineral Rights [30] the Supreme Court of Canada considered the ownership of and jurisdiction over submerged lands containing mineral rights and situated off the coast of [NAME] [NAME] and within three miles of that coast. It concluded that those lands were the property of Canada, which alone had legislative jurisdiction over them. Questions of [NAME] were also dealt with, which I leave to [NAME] side.

1. [1967] [NAME]. 792; (1967) 65 D.[NAME]. (2d) 353.

[ADDRESS] was much influenced by its view of [NAME] [31] but did, in my respectful opinion, misconceive the issues in that case. It is said of [NAME] [32] .

The English Criminal Courts would have had jurisdiction if the act had occurred within the body of a county [NAME]. The question whether the territorial sea was within the body of a county was, therefore, directly in issue. If it had been within the body of the county, the Court of Oyer and Terminer would have had jurisdiction. The majority decision of the Court was that the territory [NAME] ends at low-water mark. There was, therefore, no jurisdiction in the Court of Oyer and Terminer. In fact, as I have already sought to establish by my earlier quotation of the passage in the judgment of [NAME].[NAME]., there was no issue in [NAME] as to whether "the body of the county" might extend beyond low-water mark. Again, for the reasons which I have already given, I would not regard "the majority decision of the Court" in [NAME] as being, as the passage from the judgment of the Supreme Court which I have quoted suggests, that the "territory" [NAME], employing that term in its ordinary meaning, ended at low-water mark. The majority in [NAME] were of course much concerned with the concept of the "realm" because of their understanding of the statute of [NAME] and its bearing upon [NAME]'s jurisdiction; it was in that [NAME] sense, equivalent to the realm, bounded by the counties, that the majority spoke of "territory". I do not understand it to have been any part of the ratio of their decision that the "territory" [NAME], in the very different sense in which the Supreme Court uses that term, ended at low-water mark. 1. (1876) 2 Ex. D. 63. 2. [1967] [NAME]., at p. 804; (1967) 65 D.[NAME]. (2d), at p. 363.

The Supreme Court appears to have placed considerable reliance upon [NAME] v. [NAME] [33] and upon [NAME]. v. [NAME] [34] for the light they cast upon the ratio of [NAME]'s Case. I have already expressed my views concerning these two cases. The Supreme Court also took the view that the Territorial Waters Jurisdiction Act 1878, because it applied the criminal law [NAME] to the open seas within the territorial waters of Her [NAME]'s [NAME], necessarily proceeded upon a footing inconsistent with any concept that [NAME] [NAME] possessed the solum within territorial waters. This inconsistency is not, with respect, apparent to me; the terms of the Act appear to me to cast no light upon the question of the ownership of league seas; it is but an instance of the effective exercise of [NAME] legislative power.

1. (1877) 2 C.P.D. 173; 46 [NAME].C.L. 363. 2. (1877) 46 [NAME]. (Mag.) 189; 36 L.T. 251.

The Supreme Court, in arriving at the conclusion it did, dealt with the decision of the Privy Council in [NAME] [35] and with those precedent cases upon which [NAME] [NAME] reasoning in [NAME] in turn relied. As I would understand the judgment [36] , it did so not by distinguishing them but rather, as the headnote [NAME] [37] , by disapproving of them while at the same time referring to what is said concerning title to emergent islands in [NAME] [NAME], 8th ed. (1955), par. 234. That passage, however, is expressed in terms of an exposition of the doctrines of the law of [NAME] rather than the municipal law [NAME]. [NAME] [NAME] authoritative exposition in [NAME] of that for which [NAME] is authority is not referred to by the Supreme Court and no reference occurs to the decision of the Privy Council in the Southern Nigeria Case [38] although it had been referred to in certain of the judgments in [NAME]-[NAME] (Canada) v. [NAME] [39] , an earlier decision of the Supreme Court concerned with [NAME] title to foreshore lands.

1. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 2. [1967] [NAME]., at p. 814; (1967) 65 D.[NAME]. (2d), at p. 373. 3. (1967) 65 D.[NAME]. (2d), at p. 355. 4. [1915] [NAME]. 599. 5. [1945] [NAME]. 385; [1945] 3 D.[NAME]. 1.

Decisions of the Supreme Court of Canada are, of course, of high persuasive authority. However, the existence of decisions of the [NAME], binding upon this Court, which are opposed to that of the Supreme Court would in any event preclude me, in this instance, from adopting the views of that Court as expressed in its Reference of 1967.

In the [NAME] litigation between [NAME] concerning league seas has proliferated of recent years. The outcome of those cases has been to deny to [NAME] control over the resources of off-shore submerged lands and the decisions do in that sense afford support for the contentions urged by the Commonwealth in the present case. There are, however, so many considerations, historical, constitutional and, perhaps, of a policy nature, which distinguish those [NAME] decisions from what is to be decided in the present case that I think it profitless to undertake in these reasons an examination of the judgments. I do, however, draw attention to the full review, both historical and constitutional, of the [NAME] and early [NAME] position as to offshore waters contained in earlier decisions of the Supreme Court, notably in [NAME] v. [NAME] [40] . These decisions, which are, of course, referred to in judgments in the recent series of cases, did not involve any contest between the rival claims of state and federal authorities and accordingly did not attract those [NAME] considerations to which the Court has given effect in its recent decisions. With the exception of these [NAME] cases the body of law as to the status of [NAME] remained, in my view, unaltered until [NAME] v. [NAME] [41] . Certain of the judgments in that case took a view of [NAME] at variance with that which I have expressed and to these I must, perforce, later return.

1. (1893) 152 [NAME]. 1, esp. at pp. 11-20, 31, 35-36, 43, 48 [38 Law. Ed. 331, at pp. 336-339, 343, 344-345, 347, 349]. 2. (1969) 122 [NAME]. 177.

Having stated my reasons for concluding that the [NAME] owned, as royal waste, the waters and bed of league seas surrounding the Australian continent when the [NAME] came to be given responsible government I pass now to the effect upon this position of the grant to these colonies of responsible government. In my view it resulted in league seas thenceforth being owned by the [NAME] in right of the respective littoral colonies, so that at [COMPANY] there existed six [NAME] in respect of each of which the [NAME] in right of that [NAME] owned its league seas.

In considering the effect of the grant of responsible government upon the ownership by the [NAME] of the league seas and their subsoil much guidance is to be had from the judgment of [NAME]. in [NAME] v. [NAME]-[NAME] (N.S.W.) [42] and of [NAME]. in Eq. in [NAME]-[NAME] (N.S.W.) v. [NAME]. ([COMPANY]. [43] .

1. (1913) 16 [NAME]. 404. 2. (1938) 38 [NAME]. (N.S.W.) 195.

That originally the waste lands in [NAME] were owned by the [NAME] is not in doubt. Such ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature, such as is described by Dr. [NAME] in his unpublished work on the [NAME] (the relevant passages from which are set out in the Butterworth Case [44] ; the prerogatives of the [NAME] were a part of [NAME] which the settlers brought with them on settlement ([NAME]. v. [NAME], per [NAME].J. [45] ); "the prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her [NAME]'s [NAME] possessions as in [NAME]" (per [NAME] [NAME] speaking for [NAME] inLiquidators of [COMPANY] v. [NAME] (New Brunswick) [46] ; cited by [NAME[NAME]. in The Commonwealth v. [NAME] [47] ). On the other hand that ownership may be described as a consequence of the feudal principle which, on first settlement in Australia, was "extended to the lands oversea", so that all [NAME] land belonged "to the [NAME] until the [NAME] chose to grant it" (per [NAME[NAME]. in [NAME] [48] ). In either event the consequence is the same, the lands of Australia became the property of the [NAME[NAME] ([NAME]-[NAME] v. [NAME] [49] ).

1. (1938) 38 [NAME]. (N.S.W.), at pp. 246-247. 2. (1915) 20 [NAME]. 425, at pp. 435-436. 3. [1892] [NAME]. 437, at p. 441. 4. (1923) 33 [NAME]. 1, at p. 37. 5. (1913) 16 [NAME]., at p. 439. 6. (1847) [NAME] 312, at pp. 317-320.

So [NAME] as anything less than responsible government applied in the [NAME] this position remained unaltered; [NAME] lands were vested in the [NAME], they were [NAME]'s [NAME] lands. When responsible government was granted to the first four [NAME] in 1855 this involved no change in the ownership of these [NAME] lands but rather a change in their control, [NAME] thenceforth held them in right of the [NAME] and control of them passed to the [NAME] ([NAME]. in [NAME] [50] ). [NAME], in matters internal to the [NAME], ceased to be advised by [NAME] responsible to the [NAME[NAME]; instead it was the [NAME], responsible to the [NAME], which advised upon those matters. The control and disposition of [NAME] lands was for the first time placed in the hands of the responsible [NAME]; all this is dealt with, in its full historical detail in relation to [NAME], by [NAME]., in the Williams Case. The position was no different in other colonies. With the grant of legislative authority over [NAME] lands to the local [NAME] went also executive control—"as rights of [NAME] were conferred on each [NAME] exclusive rights of executive authority over matters within the ambit of the rights conferred became of necessity vested in the executive power of the [NAME]" ([NAME[NAME]. in [NAME] v. [NAME] [51] ).

1. (1913) 16 [NAME]., at p. 455. 2. (1911) 12 [NAME]. 667, at p. 710.

Those proprietary prerogatives of the [NAME] which related to matters other than the waste lands comprised in the land masses of Britain's [NAME] possessions also became exercisable, upon [NAME], by the [NAME] in right of the [NAME]. [NAME]. in Eq. was concerned, in the Butterworth Case, with the proprietary prerogative right of the [NAME] in the printing of Statutes and said that proprietary prerogative rights had come to be "vested in the [NAME] in right of the [NAME] of [NAME] immediately prior to the confederation of the Commonwealth of Australia" [52] . These prerogatives are the very "substance of [NAME]", per [NAME] [NAME]. in [COMPANY]. v. [NAME]-[NAME] [53] , in which it was held that the Government of Kenya might grant the proprietary [NAME] prerogative of pontage to the plaintiff; and see per [NAME]. [54] and per [NAME]. [55] . [NAME]. in The Commonwealth v. [NAME] [56] , explained the significance of [NAME] v. [NAME]-[NAME] (Vict.) [57] ; the inability of a [NAME] [NAME], before the establishment of [NAME], to grant away the proprietary prerogative rights of the [NAME] to precious metals, regarded as distinct from the land in which they lay, has no application to that [NAME]'s government after [NAME] is attained.

1. (1938) 38 [NAME]. (N.S.W.), at p. 245. 2. [1956] 1 [NAME]. 1, at p. 16. 3. [1956] 1 [NAME]., at pp. 24-25. 4. [1956] 1 [NAME]., at p. 32. 5. (1923) 33 [NAME]., at p. 39. 6. (1877) 2 App. Cas. 163.

The effect of [NAME] upon the prerogative in the case of the prerogative to legislate is instanced in the case of Malta. There the grant of responsible government, flowing from the grant to a local legislature of the power to legislate, with the [NAME]'s assent, concerning most of the internal affairs of that island, had the effect of suspending, pro tanto, the exercise of the [NAME] royal prerogative to legislate ([NAME] v. [NAME] [58] ). So too in the case of the [NAME]; to the extent of the [NAME] conferred upon the new responsible governments, the corresponding royal prerogatives residing in the [NAME] were suspended, never in fact to be revived. They were replaced by corresponding royal prerogatives of the [NAME] in right of the [NAME] in question, exercisable by the [NAME] upon the advice of his [NAME]. The creation of the several [NAME] did not abrogate that which the settlers had brought with them, namely "all [NAME] relating to the rights and prerogatives of [NAME] in his capacity as head of the Realm " Instead it "continued in force as law of the respective Colonies applicable to [NAME] as their head" ([NAME], per [NAME[NAME]. [59] ). So it is that prerogatives in the nature of proprietary rights which arose "by virtue of the [NAME] being the supreme executive authority of a particular territorial unit possessed of [NAME] are also held by the [NAME] in right of that particular territorial unit or political entity" (the Butterworth Case, per [NAME] [NAME]. in Eq. [60] ).

1. [1938] [NAME]. 678. 2. (1915) 20 [NAME]., at pp. 435, 436. 3. (1938) 38 [NAME]. (N.S.W.), at p. 244.

It was of this situation that Dr. [NAME] spoke when he said, at pp. 390-391 of his unpublished work to which I have already referred:

the [NAME] in right of the several [NAME] is entitled and alone entitled to exercise the prerogatives of the [NAME] in respect of his ownership of lands, his right to royal metals, to treasure trove, to escheats, to the ownership of the foreshore and the bed of the sea within territorial limits, and to royal fish—that is, whale and sturgeon.

I have not been concerned to determine the geographic limits of the several [NAME] as described in the various documents by which governmental authority was conferred, first by the [NAME] upon [NAME] and later by legislation upon [NAME] possessing a greater or lesser degree of [NAME]. Whether or not some of these documents may, upon their proper interpretation, include the league seas of the littoral colonies is immaterial to the view I have formed. Just as the [NAME]'s ownership of and [NAME] over English league seas enured to it by virtue of sovereignty over the English land mass so too in [NAME]; sovereignty over the [NAME] land mass carried with it ownership of and [NAME] over its league seas regardless of the existence of any statute or proclamation describing the [NAME] in terms wide enough to include those seas.

The contrary view, that self-governing colonies, possessing very extensive shore-lines and having absolute power of management and control over [NAME] lands within their land masses, were nevertheless deprived of ownership and control of league seas, those waters being outside their territory and remaining under the control of the [NAME] and executive, is to my mind unacceptable. It is, moreover, a view which is shown, by the extensive evidence which is before the Court in this case, to have been at no time within the contemplation either of the [NAME] or of the [NAME] or executives. The numerous opinions of the [NAME] of the [NAME] throughout the nineteenth century touching league seas are in my view inconsistent with the title and control of those waters being retained by the [NAME] and executive, especially having regard to the then prevailing view that [NAME] had no extra-territorial competence.

In 1853 the [NAME]-[NAME], Sir [COUNSEL].[COUNSEL]. (later [COUNSEL] [NAME].J.) and Sir [NAME].[NAME]. (later [NAME]) jointly advised that a [NAME] statute of Nova Scotia, a [NAME] then possessing responsible government, which legislated for league seas, was valid, saying that "The authority of the local legislature extends (like that of the [NAME]) over the space of the three miles upon the high seas next the coast which is, by the comity of [NAME], part of the country to which it is adjacent." This, they said, was itself, without more, sufficient to confer power on the [NAME] to legislate for fisheries in those waters. Two years later these same [NAME] dealt with the converse position, holding that the [NAME] of [NAME], which then possessed a unique constitutional system with features of a representative character, could not legally exercise its jurisdiction "beyond its territorial limits (three miles from the shore)". In 1860, in advice to the [NAME], five [NAME], the [NAME]-[NAME], Sir [COUNSEL].[COUNSEL]., Sir [COUNSEL] S.[NAME]., Sir [NAME] (later [NAME].) and [NAME] (later a member of the [NAME]) advised that a Victorian Act for the equipping of [NAME] warships would, if assented to, confer upon those vessels the legal character of [NAME] warships but only "within the limits of the territorial jurisdiction of the [NAME], i.e., within three miles of the shores". Five years later, reverting to the same topic, Sir [NAME] (later [NAME] [NAME] of Hereford), Sir [NAME] [NAME].[NAME]. (later [NAME] [NAME]) and Sir [NAME], upon being asked whether colonies possessing responsible government might, without [NAME] legislation, provide armed vessels for service "within [NAME] waters" replied that they might.

The [NAME[NAME] in the [NAME], once they attained [NAME], regarded themselves as fully competent not only to legislate for but also to deal with their league seas and they were so treated by the [NAME] Office; there exists a very extensive body of [NAME] legislation concerned with those seas and frequent [NAME] grants of rights of various kinds in respect of the bed of those seas. Again the significance of these is heightened when viewed in the context of the then prevailing belief that [NAME] lacked extra-territorial capacity. It is unnecessary for me to refer to examples of such legislation or of these grants, to which the Court was taken in considerable detail in the course of the hearing; some examples are referred to in a number of the articles which have, of recent years, appeared in [NAME] on this [NAME] topic.

Perhaps the most cogent evidence concerning the then prevailing understanding regarding the status of [NAME] league seas before [COMPANY] is provided by the terms of the Federal Council of [NAME] 1885 and by the legislation which was, pursuant to that Act, enacted for the waters off the shores of [NAME] and [NAME] Australia. In view of the discussion of this legislation in [NAME] v. [NAME] [61] , particularly by the Chief Justice [62] , by [NAME]. [63] and by [NAME]. [64] , I do no more than note that the Chief Justice, while regarding as a misconception the concept that each [NAME] had a territorial sea of its own, acknowledged the existence of "a widely held view" to that effect [62] . It was that view, shared by the [NAME] and which, with respect, I must regard as no misconception, which accounted for the form taken by this legislation.

1. (1969) 122 [NAME]. 177. 2. (1969) 122 [NAME]., at pp. 191-192. 3. (1969) 122 [NAME]., at pp. 203-204. 4. (1969) 122 [NAME]., at pp. 228-229. 5. (1969) 122 [NAME]., at pp. 191-192.

No doubt the true legal status of [NAME] league seas immediately before [COMPANY] cannot depend either upon the views of [NAME] of the [NAME] or upon the assumptions made and acted upon by the [NAME] and by [NAME] of the time. However, substantial confirmation of the views which I have earlier expressed, and which are themselves, as I believe, founded upon principles of established law, is to be derived from these sources.

If, then, at [COMPANY] the [NAME] in right of each [NAME] owned the league seas off its coastline, so that in all relevant respects those league seas were part of the territory of the [NAME], what, then, was the effect of [COMPANY]? In my view it brought about no change in the title to those league seas and the sea-bed below them; it did, however, substantially alter the identity of the repositories of legislative competence over league seas and ultimately led to a radical change in the repository of sovereignty, in an [NAME] sense, over those seas. Hitherto legislative competence had been shared between the [NAME] and the [NAME] but on [COMPANY] the Commonwealth acquired, at the expense of the former colonies, extensive legislative competence, delineated by reference to [NAME] matter. As to sovereignty, when the Commonwealth attained its own independent [NAME] status the [NAME] ceased to be [NAME], in [NAME] terms, in respect of those waters. These changes which took place, the first at the time of and the other subsequent to [COMPANY], were, however, in no way different in their impact upon the former [NAME] league seas than they were upon the land masses of the former colonies. I regard these waters and the land masses as identical for these purposes.

The Commonwealth contends that even if it be held that league seas were the property of [NAME] at the time of [COMPANY] nevertheless the effect of [COMPANY] and, in particular, of provisions of the Constitution, was to deprive them of league seas, which instead passed to the Commonwealth. As I understand that submission it depends upon what may be described as the potentialities for nationhood of the body politic, Australia, which are made manifest in the Constitution, and which require that there should pass from the federating colonies to the Commonwealth all the characteristic attributes of a [NAME] necessary for the ultimate assumption by the Commonwealth of its foreshadowed future as such a [NAME]. The possession of territorial waters being, it is said, such an attribute, there passed to the Commonwealth, on [COMPANY], all rights over the territorial waters around Australia's shores.

That the Commonwealth was, by the Constitution, endowed with a capacity fitting it to take its place as a [NAME] cannot be doubted. But in my view this initially inchoate capacity to act and be recognized as an [NAME] cannot be called in aid for the purpose of affecting, within the internal constitutional structure of the [COMPANY], the property rights and associated legislative jurisdictions of its entities as they existed before [COMPANY]. Any attempt to do so necessarily involves a misconception concerning the nature of sovereignty for the purposes of [NAME] and presupposes that an internationally [NAME] must also be [NAME] possessing sovereignty, in the widest sense of that term, in matters municipal. Were that the case none of the great federal [NAME] of the world would be possessed of [NAME] sovereignty.

The fallacy which underlies this submission is most clearly revealed by the character of the particular provisions of the Constitution upon which the submission principally relies, namely s. 51 (xxix.), the [NAME], and s. 75(1), conferring original jurisdiction upon this Court in all matters arising under any treaty. No doubt these provisions contemplate that the Commonwealth may enter upon the [NAME] stage as the bearer of rights and [NAME] under [NAME] but to do so it needs no greater rights and competence within the federal structure than are already granted to it by the express terms of the Constitution, it requires no complete municipal sovereignty. As was said by the Supreme Court of the [NAME] in [NAME] v. [COMPANY] [65] :

As a member of the family of [NAME], the right and power of the [NAME] in that field are equal to the right and power of the other members of the [NAME] family. Otherwise, the [NAME] is not completely [NAME]. The position is, I think, accurately summarized in [NAME], [NAME] Legal Aspects of Federalism (1973) where it is said, at p. 81: To sum up, the position of [NAME] on the [NAME] of [NAME] personality in federal [NAME] is as follows. In so far as such [NAME] are recognized as [NAME] members of the [NAME] community, they enjoy full [NAME] personality. The fact that their internal competence is limited to some extent does not affect in any way their [NAME] status. 1. (1936) 299 [NAME]. 304, at p. 318 [81 Law. Ed. 255, at p. 262].

It may well be that sovereignty over its territorial waters is an attribute of an internationally recognized [NAME]. If so the Commonwealth possesses that attribute, it has sovereignty in the relevant [NAME] sense, just as, in that same sense, it has sovereignty over the land mass of the Australian continent. In neither case does its lack of full legislative competence or its lack of radical title affect its status as a [NAME].

Divided legislative competence is a feature of federal government that has, from the inception of modern federal [NAME], been a well recognized difficulty affecting the conduct of their external affairs; hence [NAME] [NAME] has said, in a chapter devoted to the [NAME] in his Federal Government, 4th ed. (1963), that "federalism and a spirited [NAME] policy go ill together" (p. 186). [NAME] organizations have recognized and sought to overcome the problem in a variety of ways. The [NAME], the implementation of whose conventions have given rise to particular difficulty and much litigation in Canada, provides an example of such endeavours—see [NAME]. [NAME], [NAME] (1960), p. 20 et seq. As a partial remedy recourse has in some instances been had to the use of [NAME] federal [NAME] clauses so as to limit the obligations of such [NAME] with respect to those [NAME] matters which fall within the legislative competence of a member state of their federations; Art. 19(7) of the amended Constitution of the [NAME]. XXIV(12) of the GATT agreement provide instances of [NAME] bodies of which Australia is a member which have developed [NAME] mechanisms in recognition of the problem presented by federal [NAME]— see generally [NAME], World Economic Agencies (1962).

Whatever limitations the federal character of the Constitution imposes upon the Commonwealth's ability to give full effect in all respects to [NAME] obligations which it might undertake, this is no novel [NAME] phenomenon. It is no more than a well recognized outcome of the federal system of distribution of [NAME] and in no way detracts from the full recognition of the Commonwealth as an [NAME] in [NAME].

I regard as no more valid the broader submission that [COMPANY] had the effect of vesting in the Commonwealth the former colonies' league seas or of creating new league seas of the Commonwealth.

[NAME], speaking for [NAME] in [NAME]-[NAME] (Cth) v. [COMPANY]. [66] , spoke of the Australian Constitution, in contrast to the [NAME] America Act of 1867, as establishing a system which was federal in the strict sense of that term; the [NAME] "while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions", a position which [NAME] contrasted with the Canadian position in which the Act of 1867 created "a [NAME] Government charged with matters of common interest, and new and merely local Governments for the [NAME]". [NAME] emphasized the continuity of the [NAME] when he referred to "the federating Colonies" whose pre-[COMPANY] [NAME], except to the extent to which they were transferred by the terms of the Constitution "remained exclusively vested in [NAME]" [67] . In much the same sense [NAME[NAME]., in [NAME] v. [NAME] [68] , speaks of s. 51 (x.) as disclosing an intention that legislative power over some part of the sea which "belonged to [NAME] should be preserved to them as [NAME] of the Commonwealth".

1. (1913) 17 [NAME]. 644, at pp. 651-652. 2. (1913) 17 [NAME]., at p. 653. 3. (1969) 122 [NAME]., at p. 202.

Both the Constitution Act and the Constitution itself demonstrate the characteristic of which [NAME] [NAME] spoke. Covering cl. 3 describes that polity in which the peoples of the several colonies are [NAME] as "a Federal Commonwealth" and covering cl. 6 defines the "[NAME]" (inter alia) to be such of the original colonies as are "parts of the Commonwealth" of Australia and established under the Act; in effect [NAME] are given the new title of [NAME]. Sections 106 and 107 of the Constitution then give effect to the union of [NAME] by providing for the continuance of their several constitutions and of the [NAME] of their several [NAME] parliaments, other than those [NAME] vested in federal [NAME] or withdrawn from the State Parliaments.

The result of this union into a federal Commonwealth is that "for all purposes of self-government in Australia, sovereignty is distributed between the [NAME]" so that each may in some aspects lawfully exercise [NAME] [NAME] ([NAME] v. The Commonwealth, per [NAME[NAME]. [69] , who dissented but not as to this point; cf. per [NAME[NAME]. [70] and see per [NAME] in Liquidators of [COMPANY] v. [NAME] of New Brunswick [71] ). As [NAME]. pointed out in [COMPANY]. v. Commissioner of Taxation (N.S.W.) [72] : "constitutionally speaking, the status of [NAME[NAME] is equal to, or co-ordinate with, that of the Commonwealth itself. Sovereignty is not attributable to [NAME] authority more than to the others; it is divided between them in accordance with the demarcation of functions set out in the Commonwealth Constitution."

1. (1932) 46 [NAME]. 155, at p. 220. 2. (1932) 46 [NAME]., at pp. 184-185. 3. [1892] [NAME]. 437, at p. 442. 4. (1937) 56 [NAME]. 337, at p. 378.

Sir [NAME] expressed the same view when he said, in Federal Commissioner of Taxation v. [NAME] of [COMPANY]. [73] , that the constitution meant "to establish two governments, State and Federal, side by side, neither subordinate to the other "

1. (1940) 63 [NAME]. 278, at p. 312.

[NAME]. described the effect of [COMPANY] when he said, in [NAME]'s Case [74] : "When in 1901 the Australian Commonwealth was formed, this law" [[NAME]] "continued to be the law applicable to the rights and prerogatives of [NAME] as head of [NAME] as before, [NAME] to any such local repeal".

1. (1915) 20 [NAME]., at p. 436.

On [COMPANY] prerogatives which partook of the nature of proprietary rights and had theretofore been exercisable through [NAME] [NAME] remained, thenceforth, "exercisable by the executives of the various [NAME] and for the benefit thereof" (per [NAME]., in the [NAME] [75] ).

1. (1940) 63 [NAME]., at p. 322.

Thus on [COMPANY] a new polity was created but in a manner entirely different from that which occurred when each of the [NAME] were created as self-governing entities; no grant of land territory was required and no league seas were involved; [NAME], as [NAME], brought with them into the [COMPANY] their land territory and their league seas.

It is for the foregoing reasons that I conclude that the validity of the Seas and Submerged Lands Act 1973 is to be ascertained upon the footing that the league seas surrounding Australia's coastline are the property of the [NAME] in right of the several [NAME] and are part of the territory of the several littoral [NAME].

In arriving at this conclusion I have the misfortune to differ in some respects from certain of the views expressed by the Chief Justice and by [NAME]. in [NAME] v. [NAME] [76] ; included in these are the effect of [NAME] [77] , the persuasive authority in the Reference re Ownership of Off-shore Mineral Rights [78] and the consequences of the granting of [NAME] to a [NAME]. In the course of what I have already written I have endeavoured to state my reasons for so differing in these and other respects. I now add three further comments. The first relates to whether any inference arises from the nature of the jurisdiction exercised by [NAME]: [NAME] v. [NAME] [79] . I do no more than refer to what was said by [NAME[NAME]. in Reg. v. [NAME] [80] , and to add that the extent of [NAME] jurisdiction appears never to have had any significant relationship to the extent of territorial sovereignty and is not, in my view, capable of affording guidance in that area. Secondly, neither the Chief Justice nor [NAME]. regarded the grant of [NAME] to [NAME] as significant because, as I would understand it, they had regard to sovereignty over league seas as an emanation of that recognition which [NAME] accords to [NAME] [NAME], which [NAME] never were (see per [NAME[NAME]. [81] and per [NAME[NAME]. [82] ). I have earlier said that in my view [NAME] appears to have had but a small part to play in the development of the concepts in issue in this case, at most supplying, through a process of judicial osmosis, a seaward boundary to those waters over which sovereignty is claimed. It follows from my adoption of this view that I derive no assistance, in the resolution of the questions raised in this case, from the undoubted fact that [NAME] were never [NAME] [NAME] and did not attain [NAME] recognition as [NAME] [NAME]. Finally I would adopt, with respect, what is said by [NAME[NAME]. in [NAME] v. [NAME] [83] concerning the decisions in [NAME] [84] and in [NAME] [85] and generally concerning the Federal Council of [NAME] 1885 and s. 51 (x.) of the Constitution.

1. (1969) 122 [NAME]. 177. 2. (1876) 2 Ex. D. 63. 3. (1967) [NAME]. 792; 65 D.[NAME]. (2d) 353. 4. (1969) 122 [NAME]., at pp. 188-189, 222-223. 5. (1974) 131 [NAME]., at pp. 259-263. 6. (1969) 122 [NAME]., at pp. 185, 188. 7. (1969) 122 [NAME]., at p. 221. 8. (1969) 122 [NAME]., at pp. 201-202. 9. (1876) 2 Ex. D. 63. 10. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222.

Having, at no doubt undue length, arrived at my conclusion concerning the status of Australia's league seas the question of the validity of the Seas and Submerged Lands Act may now be answered relatively briefly.

I take first the [NAME], conferred by s. 51 (xxix.) of the Constitution. If there is [NAME] consistent theme to be found throughout judicial discussion of the nature and extent of the [NAME] of the Commonwealth it is that it is undesirable to seek to express, in dicta, broad ranging views concerning its scope which go beyond the needs of the case in hand. The desirability of such an exercise in judicial restraint is obvious and I intend, as best I may, to observe it in the present case. Since I conclude that league seas are part of the territories of the littoral [NAME[NAME] it follows that they are not themselves external to Australia; it is therefore unnecessary to consider whether the power to legislate with respect to external affairs will extend to the making of a law merely because that law concerns a [NAME] matter which is geographically external to Australia.

In the present case there exists an [NAME] [NAME] which is relied upon to justify the exercise of legislative power under s. 51 (xxix.). Article 1 of [NAME] on the Territorial Sea and the Contiguous Zone, to which Australia is a party, provides:

1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.

2. This sovereignty is exercised [NAME] to the provisions of these articles and to other rules of [NAME]..

Article 2 extends sovereignty to the airspace over the territorial sea.

The question is whether the existence of [NAME] confers upon the Commonwealth power to enact those provisions of the Seas and Submerged Lands Act which relate to league seas and, in particular, s. 6 and s. 10 of the Act, which respectively declare to be vested in and exercisable by the [NAME] in right of the Commonwealth sovereignty in respect of the territorial sea and waters of the sea to the landward side of the baseline of the territorial sea, their beds, and subsoils, and the airspace over them. Sections 1 to 9 and 14 to 16 of the Act are ancillary to or consequential upon these two sections.

It is [NAME] intercourse between [NAME] [NAME] which is the substance of a [NAME]'s external affairs. Treaties and conventions to which a [NAME] may become a party form, no doubt, an important part of those affairs, but "external affairs" will also include matters which are not consensual in character; conduct on the part of a [NAME], or of its nationals, which affects other [NAME] and its relations with them are external affairs of that [NAME], for instance, conduct in "violation of [NAME] comity", R. v. [NAME]; [NAME] [NAME], per [NAME[NAME]. [86] ; thus s. 51 (xxix.) has been held to justify a law making it an offence to excite disaffection within Australia against the government or constitution of any of the [NAME]'s [NAME]: R. v. [NAME] [87] . I would not think that it is essential to validity that such a law be restricted to the protection of good relations within the [NAME]'s [NAME].

1. (1936) 55 [NAME]. 608, at p. 669. 2. (1947) 79 [NAME]. 121, at pp. 136-137, 149, 157, 163.

However it is not with the actual conduct by government of the [NAME]'s external affairs that the legislative power conferred by s. 51 (xxix.) is concerned; as [NAME[NAME]. pointed out in R. v. [NAME] [88] , relations with other countries "are necessarily established by governments, which act for their people in relation to other peoples, rather than by [NAME] which make laws for them". The legislative power comes to be exercised when it is necessary to regulate "the conduct of Australians in and perhaps out of the Commonwealth in reference to matters affecting the external relations of the Commonwealth"—per [NAME[NAME]., [NAME]. v. [NAME] [86] . It is when, in the conduct of Australia's external affairs, occasion arises for the making of laws enabling [NAME] obligations to be performed, [NAME] rights to be enjoyed or [NAME] relations with other [NAME] to be preserved upon a satisfactory footing that s. 51 (xxix.) arms the Commonwealth with this power. Thus "to implement a treaty", as [NAME]. remarked in R. v. [NAME] [89] , is a common, although by no means the only, occasion for the exercise of power to legislate under s. 51 (xxix.). It is just such a function that the Commonwealth here contends that the [NAME] was engaged in when it enacted the legislation here under challenge; hence, it is said, its validity.

1. (1936) 55 [NAME]., at p. 643. 2. (1936) 55 [NAME]. 608, at p. 669. 3. (1936) 55 [NAME]., at p. 644.

I regard this contention to be plainly erroneous. The [NAME] matter of [NAME] calls for little by way of municipal action for its implementation; there is still less which requires implementation by legislation as distinct from executive action, and what little does require legislative action the Act fails to implement.

Under our system of law the need for legislative implementation arises whenever a treaty requires municipal action to give effect to it; if the consequences of a treaty involve legal enforcement in the courts and are not already authorized by municipal law legislation will be needed to make the necessary changes in the law or to equip the [NAME] with the necessary power to execute the treaty: [NAME], Law of Treaties (1961), p. 81. [NAME] examines, at pp. 83-100, the types of treaties which require legislative implementation. On the view which I take of the meaning and effect of Arts 1 to 13 of [NAME] these articles call for no such implementation. The same may he said of Arts 25 to 32, which are articles of a machinery nature only. On the other hand Arts 14 to 24, concerned with the right of innocent passage, may well require Commonwealth legislative implementation in a federal polity in which the legislative or executive acts of member-[NAME] of the [COMPANY] may affect conduct in league seas and may not be consistent with observance of Australia's [NAME] obligation to ensure in those seas rights of innocent passage to vessels of other [NAME]. However the Act does not attempt to legislate in this way and this is, no doubt, because it assumes, in my view wrongly, that by asserting sovereignty over league seas it can validly preempt State legislative competence.

My view that Arts 1 to 13 call for no municipal implementation flows from my understanding of the meaning of these articles and, in particular, of the meaning of "sovereignty" as used in Arts 1 and 2. I take it to mean sovereignty as between [NAME] and [NAME] and not sovereignty as it may come to be distributed domestically within the polity of any individual [NAME]. Were it not that in these proceedings the contrary view was confidently asserted, I would regard this as beyond argument. The sovereignty of which Art. 1 speaks is that national sovereignty existing over a [NAME]'s land mass which [NAME] "extends, beyond its land territory" to its territorial sea. [NAME] takes as its starting point the assumption, fundamental to all dealings between [NAME] [NAME], that each possesses external sovereignty in respect of its own land territory. In this context "Sovereignty in the relations between [NAME] signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State": the Island of Palmas Case [90] . The "any other State" there referred to is any other [NAME], any other fellow member of the [NAME] community and not, of course, another member, unrecognized internationally, of a federal polity of which [NAME] entity alone has [NAME] recognition as a [NAME]. [NAME]'s reference to sovereignty must be a reference to external sovereignty, which is the only sovereignty which is of relevance to [NAME]. [NAME] "refuses to concern itself with whether a state is federal or unitary. Both are treated alike In short, traditional [NAME] leaves it to [NAME] [NAME] to organize themselves internally as they see fit, provided the rights of third [NAME] are safeguarded under [NAME]." ([NAME], [NAME] Legal Aspects of Federalism (1973), p. 269). [NAME] does not concern itself to legislate as to the manner of distribution of [NAME] within the polities of [NAME] [NAME] of the [NAME] community and this whether they be unitary [NAME] or federations, the latter now being no novelty on the [NAME] scene since they represent that form of government by which about [NAME]-half of the population of the world is governed ([NAME] [NAME], 8th ed. (1955), vol. 1, p. 179). As [NAME]. remarked in R. v. Christian [91] , sovereignty is exercised in two directions and has a dual aspect, "internally it relates to the power of making and enforcing laws, externally to freedom from outside control This distinction between internal and external sovereignty is inherent."

1. (1928) 2 U.N. Rep. ([NAME]) 829, at p. 838. 2. [1924] S.A.[NAME]. (A.D.) 101, at p. 106.

In his dissenting judgment in [NAME] [92] [NAME[NAME]. said of the majority's use of the expression "national [NAME]":

To declare that the Government has "national [NAME]" is merely a way of saying that vis-à-vis all other [NAME] the Government is [NAME]. If that is what the Court's decree means, it needs no pronouncement by this Court to confer or declare such sovereignty. If it means more than that, it implies that the Government has some proprietary interest. That has not been remotely established If his Honour's words be applied instead to "sovereignty" and to its use in the legislation here in question they precisely express my views. 1. (1947) 332 [NAME]. 19, at p. 45 [91 Law. Ed. 1889, at pp. 1902-1903].

The distinction between internal and external sovereignty is well recognized; it was adverted to and explained inUnited [NAME] v. [COMPANY] [93] ; in despatches to the South Australian authorities concerning the "Vondel" affair, in 1902, Mr. [NAME], as Secretary to State for [NAME] Affairs, made much of the distinction, contrasting the role of the Commonwealth, as alone representing the people of Australia and as alone bearing [NAME] responsibility in relation to matters affecting external [NAME] or communities with that of the [NAME]. He distinguished between this situation and that relating to internal sovereignty when he said "The distribution of [NAME] between Federal and State authorities is a matter of purely internal concern of which no external country or community can take any cognisance" ([NAME], The Treaty-Making Power in the Commonwealth of Australia (1966), p. 41).

1. (1936) 299 [NAME]., at pp. 316-318 [81 Law. Ed., at pp. 260-261].

[NAME] refers to external sovereignty, so that Arts 1 and 2 require no municipal implementation, it follows that these articles cannot be relied upon as invoking legislative power under s. 51 (xxix.) to enact laws having effective operation within Australia. This is not to say that the Commonwealth may not, if it chooses, by legislation under s. 51 (xxix.), declare its external sovereignty over territorial waters. By proclamation of 11th September 1953 Australia's [NAME] rights over its continental shelf were declared; it is no doubt not obliged to make such an assertion by executive action alone. The [NAME], in which problems of distributed internal sovereignty do not arise, in fact gave effect to [NAME] by The Territorial Waters Order in Council 1964 rather than by any legislation: see Reg. v. Kent Justices [94] and [NAME] v. [COMPANY]. [95] . In the latter case [NAME] [NAME]., speaking for the Court, said that to extend sovereignty to new areas of land or sea lay within the prerogative power of the [NAME], "for such extension the authority of [NAME] is not required" [96] . In any event all that the existence of Arts 1 and 2 will authorize in the way of legislation, in the exercise of the "external affairs" power, is such a declaration of external sovereignty. What ss. 6 and 10 of the Act do is, however, much more than this; they purport to operate in the area of internal sovereignty.

1. [1967] 2 [NAME]. 153. 2. [1968] 2 [NAME]. 740, esp. at p. 754. 3. [1968] 2 [NAME]., at p. 753.

It is the failure to appreciate the distinction between internal and external sovereignty that has apparently led to the assumption, implicit in the present Act, that when [NAME] speaks of sovereignty it is in some way concerned with the distribution of [NAME] within the polities of [NAME] [NAME]. Without this assumption, which I regard as clearly erroneous, the validity of ss. 6 and 10 of the Act, which employ "sovereignty" in its internal sense, cannot be sought to be supported as an implementation of [NAME] and hence within the power conferred by s. 51 (xxix.). These sections involve an acquisition by the Commonwealth of internal sovereignty over league seas to the exclusion of those other members of the [COMPANY], [NAME], which theretofore enjoyed legislative competency. To regard this as mere implementation of [NAME] is to misconceive the role of [NAME] and of [NAME] conventions. In [NAME] to [NAME], 7th ed. (1972), p. 295, the [NAME] attitude to [NAME] and its absence of competence in domestic matters is thus stated:

[NAME] practice has adopted these principles, and in the course of the preparatory work for the [NAME] of 1930 it was officially stated on behalf of [NAME] that:

The distribution of [NAME] between (a Federal State) and the other or subordinate units on whose behalf it is entitled to speak is a domestic matter with which [NAME] [NAME] are not concerned .

Of the present [NAME] it might well be said, as it has been said, in a quite different context, of the 1946 [NAME] on the Privileges and Immunities of the [NAME] that "It is difficult to see how such a [NAME] could operate except upon the [NAME] plane and as between parties possessing [NAME] personality." (Opinion of the [NAME] of Justice [97] .)

1. [1949] I.[NAME]. Rep., at p. 179.

The present [NAME] establishes rules as between the [NAME] who are parties to it concerning the sovereignty of the littoral [NAME], relative to other [NAME], over league seas and this is a matter which is of the essence of external affairs. It is also a matter without municipal effect and calling for no exercise by the littoral [NAME] of its domestic legislative power to enact laws for the governance of its people.

I have already said that legislative or executive action by the [NAME], who are necessarily not parties to [NAME], might in some way prejudice those rights of innocent passage which [NAME] accords to the vessels of [NAME] [NAME] and that Commonwealth legislation in implementation of [NAME] in this regard would be within power under s. 51 (xxix.) and would, in the light of the effect of s. 109 of the Constitution, enable Australia effectively to discharge its [NAME] obligations concerning innocent passage. However the present Act discharges no such obligations and this is a measure of its failure to derive validity from s. 51 (xxix.).

In what I have said above I have treated the Seas and Submerged Lands Act 1973, in its use of the term "sovereignty", as meaning internal sovereignty in contradistinction to the external sovereignty with which [NAME] is concerned. If this were not so, if the Act also spoke only of external sovereignty, it would doubtless be a valid, although somewhat ineffectual, enactment, [NAME] which did not purport to effect any change whatever in the respective areas of State and Commonwealth legislative [NAME]. The Commonwealth disclaims such an interpretation and the terms of ss. 14 to 16 of the Act are inconsistent with it. It is not, I think, an acceptable view of the meaning of the legislation.

It follows that I do not regard the Act, so far as it applies to league seas, as capable of support by reference to s. 51 (xxix.) of the Constitution. It is accordingly unnecessary that I should examine the question whether, even if it otherwise fell within s. 51 (xxix.), it might, because of its effect upon existing areas of State competence so "undermine the constitutional safeguards of Provincial constitutional autonomy"—Canada v. [NAME] [98] as to contravene "the various constitutional limitations expressed or implied in the Constitution" (R. v. [NAME], per [NAME[NAME]. [99] , and [COMPANY]. v. [NAME] [No. 2] [1] ).

1. [1937] [NAME]. 326, at p. 352. 2. (1936) 55 [NAME]., at p. 658; also at pp. 642, 687. 3. (1965) 113 [NAME]. 54, at pp. 85, 87, 118, 165.

As an alternative to reliance upon the [NAME] the Commonwealth seeks to support validity of the Act by reference to s. 122 of the Constitution. On the view which I take of the character of Australian league seas, as forming a part of the territory of the littoral [NAME], it needs little by way of exposition to exclude those waters from the ambit of Commonwealth legislative power, derived from s. 122, to "make laws for the government of any territory" surrendered by a State or placed by the Queen under the authority of the Commonwealth or otherwise acquired by it. There can be no question of the surrender or placing of league seas under the authority of the Commonwealth, nor has there been any relevant acquisition; I have already said all that I would wish to say concerning the contention that, either on [COMPANY] or at some later date when Australia acquired the status of an internationally recognized [NAME], the Commonwealth "acquired" the Australian league seas. The closest approach to any such acquisition is, of course, the Seas and Submerged Lands Act itself. But s. 122 confers power to legislate for the government of territory once acquired, not for its initial acquisition, and cannot afford support for the validity of ss. 6 and 10 of the Act. Quite apart from this, the concluding phrase of s. 122, providing for the representation of any territory in [NAME], might, for obvious reasons, be difficult to reconcile with the concept that the league seas may be regarded as territory to which the section refers.

I conclude that s. 122 can provide no support whatever for the validity of the Act.

At the outset I referred to the two other grounds upon which validity was sought to be supported, as incidental to execution of the executive power of the Commonwealth and inherent in the Commonwealth's status as an [NAME]. Given that the Act is concerned with internal sovereignty and not merely with external sovereignty the matters which I have already discussed suffice to dispose of these two grounds.

I accordingly conclude that those provisions of the Seas and Submerged Lands Act which purport to declare sovereignty, in an internal sense, to be vested in and exercisable by the [NAME] in right of the Commonwealth are invalid so far as they apply to Australia's league seas and to waters of the sea to landward of the baseline of league seas. It follows that s. 6 is wholly invalid and that s. 10 is in no better case.

The remaining sections of Pt I and of div. 1 of Pt II of the Act are in my view severable; they are capable of operation, quite independently of ss. 6 and 10, for the purpose of giving effect to provisions of [NAME] concerned with the fixing internationally of the limits of the territorial sea. However the provisions of div. 3 of Pt II appear to me so inextricably concerned with the assertions of internal sovereignty effected by ss. 6 and 10 as to be incapable of severance. I would therefore include ss. 14, 15 and 16 in the declaration of invalidity.

I turn finally to div. 2 of Pt II of the Act, which is concerned with Australia's continental shelf and with the application thereto of [NAME] on [NAME]. Paragraph 2 of Art. 1 of that [NAME] is, with only minor and inconsequential alterations, reproduced in s. 11 of the Act:

11. It is by this Act declared and enacted that [NAME] rights of Australia as a [NAME] in respect of [NAME[NAME], for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the [NAME] in right of the Commonwealth.. The change in terminology of the Act from "sovereignty", when dealing with territorial seas, to "[NAME] rights" in the case of the shelf is, although both terms refer, I believe, to external sovereignty only, evidence of the different approach which [NAME], as reflected in the two Conventions, adopts in relation to these two areas.

The validity of s. 11 and of the two other sections, which together comprise div. 2, as an exercise of the power to legislate in respect of external affairs, can be dealt with quite shortly, thereby reflecting the relatively brief arguments devoted to them during the hearing of this case. It is, I think, clear that the [NAME] before [COMPANY] made no claim to ownership of or [NAME] over the waters of Australia's continental shelf. The Federal Council of [NAME] 1885 and the legislation passed pursuant to it and affecting waters off the [NAME] and [NAME] coasts is testimony to the need felt by [NAME] for [NAME] intervention if they were to attempt to assert legislative control over waters beyond league seas. [NAME] was at the time of [COMPANY] and remained for a considerable period afterwards res nullius, in the words of [NAME] [NAME] in [NAME] [2] . Into this vacuum stepped the Commonwealth; it had, by s. 51 (x.) of the Constitution, been endowed with legislative power, limited as to [NAME] matter, over what was described as Australian waters beyond territorial limits and had exercised that power by legislating as to fishing in those waters. Then, by the proclamation of 11th September 1953, it asserted [NAME] rights over the Australian continental shelf for the purpose of exploring and exploiting its natural resources. The terms of div. 2 of the Act mark the Commonwealth's most recent essay in this area.

1. (1916) [NAME].43 [NAME]. 192; 85 [NAME]. 222.

The provisions of div. 2 are in my view in no respect beyond power; they legislate for waters which are wholly beyond the boundaries of State territory and their [NAME] matter is not proprietorship inconsistent with State interests, nor is it even sovereignty, but [NAME] rights for specific purposes, the exploration and exploitation of natural resources. In relation to [NAME] there does not exist that conceptual duality which applies to league seas; the absence of any State interests means that for that area the Commonwealth may act as if it were a unitary state, without need to draw any distinction, if distinction there be, between internal and external aspects of "[NAME] rights".

The rights which [NAME] now accord to coastal [NAME] in respect of [NAME] off their shores have not enured for the benefit of the respective [NAME] so as to give them, at the expense of the Commonwealth, new rights they did not previously possess. I have already described the provisions of [NAME] on the Territorial Sea as leaving unaffected the distribution of sovereignty within Australia's federal polity; [NAME] on [NAME] is no more potent in relation to [NAME] rights to [NAME]. When [NAME] speaks of coastal [NAME] it refers to those [NAME] [NAME] [NAME] which possess coastlines, in the case of Australia the Commonwealth. It follows that this assertion by the Commonwealth of [NAME] rights over [NAME] by means of legislation is an exercise of the [NAME] conferred by s. 51 (xxix.). Apart from this consequence [NAME] has no operative effect as between the constituent members of our [COMPANY]. So far as they are concerned the only relevant facts are that the Commonwealth has proclaimed, and now enacted, its [NAME] rights in an area in which [NAME] have not, and never have had, any interests.

I should add that, consistently with the foregoing, I would not, as at present advised, regard any action which the Commonwealth may take to assert external sovereignty in respect of territorial waters over an area in excess of three miles seaward of appropriate baselines as productive of any effect upon [NAME]' league seas. These waters will not be altered in extent by any variation in Australia's [NAME] assertion of more extensive territorial waters.

The invalidity which affects certain provisions of the Seas and Submerged Lands Act is therefore, in my view, confined to ss. 6, 10 and 14 to 16 of the Act and does not extend to such of its provisions as relate to [NAME].

I would accordingly, in each of the proceedings before us, confine any declaration of invalidity to these enumerated sections of the Act.

[NAME[NAME].

In actions commenced by [NAME] against the Commonwealth for declarations that the Seas and Submerged Lands Act 1973 is beyond the [NAME] of the [NAME], [NAME]. directed that there be argued before the [ADDRESS] the question whether the Act is valid.

The answer to this question depends upon, or is affected by, considerations of varying complexity. They must be examined at the outset, for it is only when they have been evaluated that the provisions of the Act can be seen in their true perspective and their effect correctly gauged.

The Littoral Boundaries of the [NAME].

The [NAME]' case is that the territorial sea and its solum form part of the territories of [NAME] and that the Act cannot therefore be supported as an exercise of the legislative [NAME] conferred by s. 51 (xxix.) or s. 122 of the Constitution. Central to this case is the proposition that the littoral boundaries of the [NAME] did not stop at low-water mark and that the territorial sea surrounding [NAME] formed part of their territory, as did the solum of the territorial sea. The initial obstacle which this argument encounters is that the delimitation of the [NAME] boundaries in the historical documents, as I read them, sets the seaward boundaries at the extremities of the land territory.

(a) [NAME].

The territorial limits of the [NAME] of [NAME] were defined in two commissions issued to [NAME] [NAME]. The second commission, constituted by letters patent dated 2nd April 1787, described the [NAME] as "extending from the Northern Cape or extremity of the coast called Cape York in the latitude of ten degrees thirty-seven minutes south to the southern extremity of the said territory of [NAME] or South Cape including all the islands adjacent in the Pacific Ocean within the latitudes aforesaid "

This description commences at a point on the east coast, proceeds south along that coast and terminates at another point on the coast, thereby making it clear that the boundary lies at the extremity of the land mass. The specific inclusion of islands in the Pacific Ocean is inconsistent with the notion that the [NAME] includes the sea and confirms that it is limited to the land mass and islands.

Subsequent alterations to the [NAME] boundaries did not affect the seaward limits.

(b) [NAME].

The extent of the [NAME] was set out in the commission issued by letters patent dated 16th July 1825 which described the [NAME]'s jurisdiction as extending to "our Island of [NAME], and all Islands and Territories lying to the Southward of Wilson Promontory " Here again there is nothing in the description which includes within the [NAME] the sea or its solum.

(c) [NAME] Australia.

The territorial limits of the [NAME] were defined in the commission issued by letters patent dated 4th March 1831 to [NAME] [NAME]. It referred to the [NAME] as "extending from Cape Londonderry to West Cape Howe and from the Hertogs Island on the [NAME] coast in longitude [NAME] hundred and twelve degrees fifty two minutes to [NAME] hundred and twenty nine degrees of east longitude including all the islands adjacent in the Indian and Southern Oceans" within a defined area. The northern limits of the [NAME] were extended by a commission issued by letters patent dated 10th July 1873 to [NAME] [NAME] but not so as to alter the seaward boundary earlier established and that, plainly enough, followed the line of the coast in a fashion similar to the seaward boundary of [NAME].

(d) [NAME].

The seaward boundary of [NAME] was described in letters patent dated 19th February 1836 issued pursuant to s. 1 of the Act 4 & 5 Wm IV c. 95, as "On the South the Southern Ocean" including "all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said [NAME]". By including "Bays and Gulfs" the description departed from the approach taken in the case of the earlier Colonies. It was prompted by a desire to place beyond question the status of St. Vincent's [NAME]'s Gulf which were by this means incorporated within the [NAME]. In other respects, however, the description of [NAME]'s seaward boundary conforms to earlier practice.

(e) [NAME].

The first description of boundaries is to be found in s. 1 of the Australian Constitutions Act 1850 (13 & 14 Vict. c. 59) in which the [NAME] was described as including "the Territories comprised within the [NAME], including the [NAME] ". There followed a statement of the northern and [NAME] boundaries.

The boundaries were re-defined by the commission issued to [NAME] [NAME] by letters patent dated 23rd June 1863 in which it was stated that the [NAME] consisted "of the Territories bounded on the South by the Sea".

(f) [NAME].

The first definition of boundaries is contained in letters patent dated 6th June 1859 issued under s. 7 of the [NAME], 1855. It excised from the [NAME] of [NAME] certain territory which lay to the north of a designated line which was set as the southern boundary of the new [NAME]. Specifically included were "all and every the adjacent islands their [NAME] in the Pacific Ocean".

Subsequently, by letters patent dated 13th March 1862 issued under s. 2 of the [NAME] 1861 there was annexed to the [NAME] so much of [NAME] "as lies to the northward of the 26th parallel of south latitude, and between the 141st and 138th meridians of east longitude, together with all and every the adjacent islands, their [NAME] in the Gulf of Carpentaria". By deed poll dated 22nd August 1872 the [NAME] pursuant to [NAME] conferred upon him by letters patent dated 30th May 1872 transferred to the [NAME] of [NAME] "all the Islands lying and being within sixty miles of the coasts of the said [NAME]". Certain islands in the Torres Strait were subsequently included within the [NAME] by proclamation dated 18th July 1879.

The Territorial Sea and its Solum.

The [NAME] endeavoured to overcome the absence of any reference in the definition of the [NAME] boundaries to territorial waters and their solum by submitting that the definition must be read in the light of the supposed [NAME] rule that the territorial sea formed part of the realm [NAME]. For reasons which I shall state, the [NAME]' submission does not accurately reflect the rule of municipal law as it was enunciated in the nineteenth century and, even if it did, the rule did not operate to alter or amend [NAME] boundaries otherwise defined or established at that time.

The old [NAME] doctrine that the narrow seas around England were within the territorial sovereignty of the [NAME], expressed in the treatise [NAME] attributed to [NAME], supported by [NAME] and asserted in [NAME] on the Prerogatives of the [NAME], if it ever had validity, was pronounced to be obsolete by [NAME].C., speaking for the [NAME], in [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [3] . In its place there came into existence in [NAME] municipal law the concept of the territorial sea having its origins in, and owing much of its development and elaboration to, [NAME].

1. [1914] [NAME]. 153, at p. 174.

The initial, and perhaps the critical, question for consideration is whether under municipal law the territorial sea of three miles from low water, and its solum, formed part of the territory of the [NAME] before 1900 (the [NAME]' case) or whether they were the [NAME] of legislative jurisdiction which fell short of territorial [NAME] (the defendant's case). It is a vexed question upon which divergent views have been expressed.

In Reg. v. [NAME] [4] , the issue was examined at great length. The case cannot be dismissed as [NAME] which decided no more than the limits of [NAME] jurisdiction. An essential step in the reasoning of the majority centred on the proposition that the realm [NAME] ended at low-water mark and that the territorial sea, though the [NAME] of admitted legislative jurisdiction, formed no part [NAME]. Seven of the thirteen judges comprising the bench clearly reached this conclusion ([NAME[NAME]. [5] ; [NAME[NAME].[NAME]. [6] ; [NAME].[NAME]. [7] ; [NAME].[NAME]. [8] ; [NAME[NAME]. [9] ; [NAME[NAME]. [10] ; and [NAME[NAME]. [10] ). It is not without importance that the words "realm" and "territory" were used interchangeably and synonymously by the judges—see per [NAME[NAME].[NAME]. [11] .

1. (1876) 2 Ex. D. 63. 2. (1876) 2 Ex. D., at p. 67. 3. (1876) 2 Ex. D., at p. 150. 4. (1876) 2 Ex. D., at pp. 150-151. 5. (1876) 2 Ex. D., at pp. 195, 197, 199, 219. 6. (1876) 2 Ex. D., at p. 238. 7. (1876) 2 Ex. D., at p. 239. 8. (1876) 2 Ex. D., at p. 239. 9. (1876) 2 Ex. D., at pp. 197-198.

The attempt made by the [NAME] to detach [NAME[NAME]. from the majority by suggesting that [NAME] expressed the view that the territorial sea was within the realm is belied by his judgment. [NAME[NAME]. [9] expressly agreed with [NAME[NAME]., whose opinion is not in doubt, and went on to say [12] :

In the reign of [NAME] II, the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now. 1. (1876) 2 Ex. D., at p. 238. 2. (1876) 2 Ex. D., at p. 239.

[NAME]. said subsequently in his judgment and what was undoubtedly correct, was that the territorial sea, though outside the realm, could be brought within the territory [NAME] by Act of the [NAME] [12] . This view was shared by [NAME[NAME]. [13] and the judges who agreed with him. At the date of [NAME], no legislation to this effect had been passed by the [NAME] and thus the territorial sea was not then incorporated into the realm [NAME].

1. (1876) 2 Ex. D., at p. 239. 2. (1876) 2 Ex. D., at p. 198.

It is significant that in two cases decided in the year following [NAME] three judges who had been in the minority in that case held that [NAME] decided that the territory [NAME] stopped at low-water mark ([NAME] v. [NAME], per Coleridge L.[NAME]., [NAME] and [NAME]. [14] ; [COMPANY]. v. [NAME], per Coleridge L.[NAME]. and [NAME]. [15] ). The same view has been expressed recently by the Supreme Court of Canada in Reference re Ownership of Off-Shore Mineral Rights [16] , and by [NAME[NAME]. and [NAME[NAME]. in [NAME] v. [NAME] [17] .

1. (1877) 2 C.P.D. 173, at pp. 177-178. 2. (1877) 36 L.T. 251, at p. 251. 3. [1967] [NAME]. 792, at p. 804; (1967) 65 D.[NAME]. (2d) 353, at p. 363. 4. (1969) 122 [NAME]. 177, at pp. 184, 218-219.

The Territorial Waters Jurisdiction Act 1878 Imp. did not reverse the principle according to which [NAME] was decided. The Act did not alter the seaward limits of [NAME] territory. It assumed the correctness of that decision and conferred on [NAME] and [NAME] courts jurisdiction to try offences committed by [NAME] on board [NAME] ships within three nautical miles from the line of low water—the jurisdiction which [NAME] had held to be wanting in the absence of legislative action to confer it. The assertion of jurisdiction in the preamble to the statute "over the open seas adjacent to the coasts of the [NAME] and of all other parts of Her [NAME]'s [NAME] to such a distance as is necessary for the defence and security of such [NAME]" was a declaration of jurisdiction, not a declaration that the adjacent seas formed part of [NAME] territory.

On the other hand there are cases which appear to lend some support to the [NAME]. However, in my view [NAME] v. [NAME]. [18] is not [NAME] of them. It decided no more than that for the purpose of the rule of private [NAME] enunciated in [NAME] v. [NAME] [19] , an act committed within the territorial waters of [NAME] was an act committed within the jurisdiction of the [NAME], the act having been carried out under the authority of a proclamation issued by the [NAME] who was [NAME] [NAME]. The [NAME] of [NAME]. seems to have expressed an opinion more favourable to the [NAME] [20] but it proceeds upon the mistaken view that the Territorial Waters Jurisdiction Act reversed the principle on which [NAME] was decided.

1. [1902] [NAME]. 176. 2. (1870) [NAME]. 6 [NAME]. 1. 3. [1902] [NAME]., at p. 181.

There are, however, stronger statements of high authority which favour the [NAME]. First there is the statement made in [NAME] [NAME] v. [COUNSEL] [21] by [NAME] [COUNSEL], speaking with reference to mineral rights below low-water mark [22] :

I see no reason to doubt that, by the law of Scotland, the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit, and also the minerals beneath it, are vested in the [NAME]. See also [NAME] [NAME] v. [NAME] [23] . 1. [1900] [NAME]. 48. 2. [1900] [NAME]., at p. 66. 3. [1891] 19 R. 174.

Next there are the observations of [NAME]. in [NAME] v. [NAME] [24] :

Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the [NAME] The bed of the sea, so far as it is vested in the [NAME], and a fortiori the beds of tidal navigable rivers, can be granted by the [NAME] to the [NAME]. 1. [1908] 2 Ch. 139, at pp. 166-167.

Then in Secretary of State for India v. [NAME] [NAME] [25] it was held that islands formed on the bed of the sea within the territorial waters of India belonged to the [NAME]. [NAME] [NAME] of Dunfermline regarded [NAME] [26] as deciding only the limits of [NAME] jurisdiction [27] , a view which cannot be sustained. [NAME] referred to [NAME] doctrine and cited [NAME].'s observations in [NAME] v. [NAME] [28] , which were also based on sovereignty over the narrow seas, and went on to say: "There is nothing to recommend a local jurisdiction over a space of water lying above a res nullius" [29] . In the previous year [NAME] [NAME] of Dunfermline had in [NAME]-[NAME] (Southern Nigeria) v. [NAME]. (Liverpool) [COMPANY]. [30] expressed a similar view of the [NAME]'s ownership of the foreshore and the seabed.

1. (1916) [NAME]. 43 [NAME]. 192; 85 [NAME]. 222. 2. (1876) 2 Ex. D. 63. 3. (1916) [NAME]. 43 [NAME]., at p. 199; 85 [NAME]., at p. 224. 4. [1908] 2 Ch. 139. 5. (1916) [NAME]. 43 [NAME]., at p. 202; 85 [NAME]., at p. 226. 6. [1915] [NAME]. 599, at p. 611.

To the extent to which these observations are at variance with what was decided in [NAME] they do not in my opinion accurately reflect the law as it stood in 1900. They carry overtones of the ancient doctrine, enunciated by [NAME] and [NAME], that the narrow seas were within the territorial sovereignty of the [NAME], a doctrine which was then obsolete. They fail to acknowledge, as did the majority in [NAME], that the territorial sea is a distinct concept which owes its origin, development and elaboration to [NAME] and that it has been incorporated into [NAME] municipal law not as a supplement to the old notion of territorial sovereignty, but quite independently of it.

The decision in [NAME] may be supported on the principle, well recognized in [NAME], that islands formed within the territorial sea are held to be an accretion to the territory of the littoral state. Unfortunately the [NAME] did not refer to the observations of [NAME] [NAME]. in [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [31] , when [NAME], delivering the judgment of the Board, said:

[Their Lorships] "desire, however, to point out that the three-mile limit is something very different from the "narrow seas" limit discussed by the older authorities, such as [NAME] and [NAME], a principle which may safely be said to be now obsolete. The doctrine of the zone comprised in the former limit" [that is, the three mile-limit] "owes its origin to comparatively modern authorities on public [NAME]. Its meaning is still in controversy. The questions raised thereby affect not only the [NAME] generally but also the rights of [NAME] [NAME] as against the [NAME], and of the subjects of the [NAME] as against other [NAME] in [NAME] territorial waters. Until the [NAME] have adequately discussed and agreed on the meaning of the doctrine at a Conference, it is not desirable that any municipal tribunal should pronounce on it Until then the conflict of judicial opinion which arose in Reg. v. [NAME] [31a] is not likely to be satisfactorily settled, nor is a conclusion likely to be reach on the question whether the shore below low water mark to within three miles of the coast forms part of the territory of the [NAME] or is merely [NAME] to [NAME] [NAME] necessary for protective and police purposes. The obscurity of the whole topic is made plain in the judgment of [NAME[NAME]. in that case. But apart from these difficulties, there is the decisive consideration that the question is not [NAME] which belongs to the domain of municipal law alone." 1. [1914] [NAME]., at pp. 174-175. 2. (1876) 2 Ex. D. 63.

These observations, though leaving open the correctness of the actual conclusion reached in [NAME], make it clear that the approach which the majority took, based on an examination of [NAME], was to be preferred to an approach based on the ancient doctrine of territorial sovereignty. Moreover, [NAME] made it equally plain that the rule of [NAME] was dynamic and that the solution which it might ultimately provide to the issue debated in [NAME] would turn on the future evolution of [NAME].

The decision in [NAME], and indeed the concept of territorial sovereignty in the bed of territorial waters on which the decision was based, may also be supported, not as an instance of the old [NAME] doctrine of territorial sovereignty, but as an example of the modern rule of [NAME] as it has evolved in the twentieth century, for the concept of territorial sovereignty on the territorial sea and its solum was plainly recognized in the 1958 [NAME] on the Territorial Sea and the Contiguous Zone (see Arts 1 and 2). And the [NAME] of Justice has held that [NAME] is a natural extension of the land territory of the [NAME] appertaining to it for the purpose of exercising its [NAME] rights (North Sea Continental Shelf Cases [32] ). Even so, it is necessary to distinguish between the land territory of a [NAME] on the [NAME] hand and its territorial sea and solum on the other hand, for the [NAME] in the exercise of its [NAME] rights is bound to give effect to the obligations relating to the right of innocent passage imposed upon it by [NAME] in respect of its territorial sea and solum.

Accordingly, the territorial rights now conceded by [NAME] to the [NAME] in the solum of territorial waters [NAME] it with the character of territory that is different from the land territory of the [NAME].

1. [1969] I.[NAME]. Rep. 3.

All this in a sense is by the way. We are primarily concerned to identify the extent of the [NAME] boundaries prior to 1900. In so far as it is relevant to that question, we should look to the municipal law, based on a concept of [NAME] then in course of evolution, as it was enunciated in the [NAME] authoritative decision given in the nineteenth century, a decision which appears to have proceeded on a comprehensive review of all the relevant materials. We are not justified in discarding this decision in favour of subsequent and conflicting judicial observations which reflect either an outmoded doctrine of territorial sovereignty or later developments in [NAME].

But in the end we must return to the delimitation of the [NAME] boundaries in the historical documents. They are expressed to lie at the extremity of the coast. They are in terms inconsistent with the attempt now made by the [NAME] to engraft upon them an additional tract of territory extending throughout the three-mile limit and beyond. The definition of the boundaries is consistent with the existence of a legislative competence on the part of the [NAME] and the [NAME] throughout the three-mile limit and beyond. It is even consistent with the retention by the [NAME] in right of the [NAME] of territorial sovereignty in the territorial sea and its solum, assuming such a sovereignty to have been conceded then by municipal law, contrary to the opinion which I have expressed. But the delimitation of the [NAME] boundaries denies that they stood at the outer margin of the territorial sea.

[NAME] lacked authority to alter their boundaries by unilateral action. Section 2 of the [NAME], 1895 Imp. provided that the Queen, on the advice of her [NAME] [NAME], might with the consent of a [NAME], alter the boundaries of that [NAME] (s. 2). This provision belied the existence of a power in a [NAME] to take unilateral action. And no alteration was ever made under the [NAME].

The opinion which I have already expressed as to the authority of [NAME]'s Case before 1900 answers the submission that the territorial sea and its solum could, in the absence of some addition to the territories of [NAME], or of legislative action, constitute territory of [NAME] situated outside the [NAME] boundaries. The [NAME] argued that the solum of the territorial sea was waste land of [NAME]. However, the power given to [NAME] to alienate waste lands of the [NAME] was limited to waste lands "within the said [NAME]"—see Constitution Act, 1855 N.S.W. (18 & 19 Vict. c. 54), s. 43; Constitution Act, 1855 Vict. (18 & 19 Vict. c. 55), s. 54; Constitution Act, 1867 Q., s. 30; Wastelands Act, 1855 Imp. (18 & 19 Vict. c. 56), ss. 5, 7.

There is another consideration which to my mind is significant. The [NAME] and, more importantly, s. 123 of the Constitution assume that the boundaries of the [NAME] and subsequently of [NAME] are fixed boundaries capable of alteration only in the manner prescribed. Yet we know that the concept of the territorial sea is a concept of [NAME] that is evolving and developing. In the nineteenth century the three-mile limit was generally, if not universally, accepted. But by 1958 there were a number of [NAME] that claimed a wider territorial sea, with the result that the width of the territorial sea was left unstated by the [NAME] in that year. Today a wider territorial sea is claimed by many [NAME]. If, and it is a future possibility that cannot be discounted, the territorial sea asserted by the Commonwealth should extend beyond three miles, is the extension to be regarded as effecting an alteration to the limits of [NAME], though not effected in the manner prescribed by s. 123? The question must be answered in the negative. The territorial sea is essentially a conception of [NAME]; its extension or reduction does not affect the boundaries of the constituent elements in the [COMPANY].

That the territorial sea is essentially a conception having its origins in and owing its elaboration to [NAME] supplies a further reason for rejecting the notion that the subsoil of territorial waters adjacent to a [NAME] formed part of the territory of that [NAME]. [NAME] were not members of the [NAME]. In so far as rights were conceded by [NAME] to the [NAME] over its territorial sea (and the concession of these rights is the foundation of the relevant rule of nineteenth-century municipal law) no such rights inhered in [NAME] per se; they vested in [NAME] or the [NAME]. The territorial sea surrounding the [NAME] was in the eye of [NAME], [NAME] territorial waters.

There is therefore no basis on which the suggestions sometimes made in the [NAME]' opinions in the nineteenth century that territorial waters formed part of the territory of [NAME] can be supported. The persuasive effect of these opinions is in any event diminished by the contrariety of view which they express. They reflect the controversy of which [NAME] spoke in 1914. They do not convince me that the [NAME] boundaries included territorial waters.

[NAME]' Legislative Power in relation to the Territorial Sea.

All this is not to say that [NAME] lacked legislative power to make laws having effect in territorial waters. [NAME] provides no reason for denying to [NAME] legislative power and jurisdiction over the territorial waters adjacent to a [NAME] and its subsoil. This power and jurisdiction were exercisable in an appropriate case by a [NAME] possessing power to legislate for the peace, order and good government of the [NAME]. The power to make laws for the peace, order and good government of a [NAME] was wide enough to enact laws applying to territorial waters and beyond. So much was finally recognized by the decision of the Privy Council in [NAME] v. [NAME] [33] , despite suggestions to the contrary arising from what was said in [NAME] v. [NAME]-[NAME] (N.S.W.) [34] and what was then decided in relation to the [NAME] had a like application to the situation of [NAME] before 1900 (Reg. v. [NAME] [35] ). This power was large enough to enable the [NAME] to authorize the grant of leases and other estates or interests and the construction and maintenance of works in the seabed below low-water mark. No doubt a [NAME] could, if it were so minded, legislate so as to vest in the [NAME] or an instrumentality of the [NAME] proprietary interests in the seabed.

1. [1933] [NAME]. 156. 2. [1891] [NAME]. 455. 3. (1974) 131 [NAME]. 203.

As between the [NAME] and a [NAME], instances may be found of the grant by the [NAME] without legislative authority of proprietary interests in the foreshore or seabed. As against the [NAME] the [NAME] could not dispute the [NAME]'s title. But this constitutes no ground for concluding that [NAME] is incorrect in relation to the [NAME]. And the decisions of the [NAME] and the Supreme Court of Canada denying the territorial waters and the seabed formed part of the territory of [NAME] of the Union and the [NAME] confirm the absence of any proprietary interest in the [NAME] (Reference re Ownership of Off-Shore Mineral Rights [35a] ; [NAME] [36] ).

1. [1967] [NAME]. 792; (1967) 65 D.[NAME]. (2d) 353. 2. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889].

The Commonwealth's [NAME] in relation to the Territorial Sea.

The Constitution Act of 1900 brought the Commonwealth into existence as a potential member of the [NAME], with a capacity to conduct its relationships with other [NAME]. When it actually became a member of the [NAME], and accepted as an [NAME] persona, it is not necessary to decide. Whether it was achieved on [COMPANY] or at some time before the [NAME], the Statute of Westminster, 1931 and the Statute of Westminster (Adoption) Act 1942 Cth, is not of present importance. What is of importance is that it is consistent with the Commonwealth's character as an [NAME] persona and with [NAME]' lack of that character, that legislative power and jurisdiction over the territorial sea and its seabed should reside in the Commonwealth rather than [NAME].

In [NAME] [37] the Supreme Court of the [NAME] observed that national interests, rather than the interests of individual [NAME], were paramount in the three-mile belt. The control and regulation by the [NAME] of its territorial sea, and for that matter of its solum, is an aspect of its external sovereignty and its external relationships with other [NAME]. It is therefore a function as appropriate to the Commonwealth as it is inappropriate to [NAME]. Judged even from a domestic standpoint the territorial sea has such important consequences for the defence of the [NAME], for the protection of the revenue, for quarantine and for national interests in [NAME] that it is not readily to be supposed that upon [COMPANY] the power to regulate and control the territorial sea and its solum was vested in [NAME] to the exclusion of the Commonwealth, thereby denying to the Commonwealth power to establish a uniform regime in that area, and leaving it [NAME] to the enactment of diverse and discordant rules.

1. (1947) 332 [NAME]., at p. 35 [91 Law. Ed., at p. 1897].

Once it is accepted that the boundaries of [NAME] terminated at low-water mark there is in my opinion no reason why the Commonwealth's power to make laws with respect to "external affairs" (s. 51 (xxix.)) should not be regarded as conferring upon it a plenary power to legislate upon the topic of the territorial sea and its solum. There is abundant authority for the proposition that the [NAME] matter extends to Australia's relationships with other countries and in particular to carrying into effect treaties and conventions entered into with other countries, provided at any rate that they are truly [NAME] in character (R. v. [NAME]; [NAME] [NAME] [38] ; [COMPANY]. v. [NAME] [No. 2] [39] ).

1. (1936) 55 [NAME]. 608. 2. (1965) 113 [NAME]. 54.

The [NAME]' argument proceeds on the footing that the power is no more than a power to make laws with respect to Australia's relationships with [NAME] countries. Why the power should be so confined is not readily apparent. The power is expressed in the widest terms; it relates to "affairs" which are external to Australia. "Affairs" include "matters" and "things" as well as "relationships" and a constitutional grant of plenary legislative power "should be construed with all the generality which the words used admit" (Reg. v. [NAME] Tribunal (Tas.); [NAME] [COMPANY]. [40] ).

1. (1964) 113 [NAME]. 207, at p. 225.

In order to cut down the meaning and operation of the words it was suggested that the words "external affairs" were selected because the traditional expression "[NAME] affairs" might exclude Australia's relationship with other parts of the [NAME] ([NAME] [41] ). This observation, though it illuminates the motives which actuated the selection of the words, does little to define their meaning and scope.

1. (1936) 55 [NAME]., at p. 684.

Next it was urged that to give a wide meaning to the power would make other heads of power in s. 51 redundant, notably s. 51 (x.) and (xxx.). The frailty of this argument is that, even on a limited view of s. 51 (xxix.), it appears to embrace Australia's relationships with the islands of the Pacific, and consequently to cover the field included in s. 51 (xxx.). Furthermore, the reference to "relations" in s. 51 (xxx.) strongly suggests that external affairs in s. 51 (xxix.) is a more comprehensive expression which is not confined to relationships with other countries.

Similarly, I am not persuaded by the [NAME]' submission relating to s. 51 (x.). There can be little doubt that control and regulation of fisheries beyond territorial limits was regarded as having such importance as to require its specific mention in s.

51. Fishing and fisheries were a matter of great concern to the [NAME] before [COMPANY]. The fisheries power had been included in the short list of [NAME] conferred on the Federal Council of [NAME] by the Federal Council of [NAME] 1885, s. 15 (c). Its omission from s. 51 of the Constitution was not to be contemplated; in its historical context, the omission may have had an untoward significance in the interpretation of the Constitution.

For these reasons it is my opinion that the power conferred by s. 51 (xxix.) extends to matters or things geographically situated outside Australia. This view appears to accord with what was said by [NAME] and [NAME] [NAME]. in [NAME] [42] . And it applies with [NAME] force to the territorial sea and its solum because, as I have already observed, their control and regulation is an aspect of the external sovereignty of Australia and Australia's external relationships with other [NAME].

1. (1936) 55 [NAME]., at p. 678.

[NAME].

The rejection of the plaintiff's claim to territory and ownership of the bed of the territorial sea necessarily denies their title to [NAME], that is, for present purposes, that part of [NAME] which extends beyond the outer margin of the territorial sea. Indeed, in terms of history there is nothing to sustain a claim by the [NAME] to proprietary interests in the seabed beyond the outer margin of territorial waters.

It follows, then, that in my view the [NAME] has power under s. 51 (xxix.) to make laws affecting the ownership, regulation and control of the territorial sea, its solum and [NAME].

The Act.

In its preamble the Act refers to the [NAME] on the Territorial Sea and the Contiguous Zone (1958) and [NAME] on [NAME], also made at Geneva in in 1958, to each of which Australia is a signatory. The terms of each [NAME] are set out in Schedules 1 and 2 of the Act.

The most important provisions of [NAME] on the Territorial Sea are those contained in Arts 1, 2, 3, 5 (1), 6, 14 (1) and 15 (1), which are set out below:

Article 1

2. This sovereignty is exercised [NAME] to the provisions of these articles and to other rules of [NAME].

Article 2

The sovereignty of a [NAME] extends to the air space over the territorial sea as well as to its bed and subsoil.

Article 3

Except where otherwise provided in these articles, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on largescale charts officially recognized by the [NAME].

Article 5

1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.

Article 6

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

Article 14

1. [NAME] to the provisions of these articles, ships of all [NAME], whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.

Article 15

1. The [NAME] must not hamper innocent passage through the territorial sea.

The substance of [NAME] is to declare that a [NAME] has sovereignty over that part of the waters adjacent to its coast known as the territorial sea and over the seabed and subsoil of that territorial sea together with the airspace. Whether these provisions are merely declaratory of existing [NAME] or whether they are innovative need not be considered.

[NAME] on [NAME] also gives a [NAME] certain [NAME] rights in relation to parts of the seabed adjacent to its coast. The main provisions setting out the rights of the [NAME] are those contained in Arts 1, 2 and 3 which are reproduced below:

Article 1

Article 2

1. The [NAME] exercises over [NAME] [NAME] rights for the purpose of exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the [NAME] does not explore [NAME] or exploit its natural resources, no [NAME] may undertake these activities, or make a claim to [NAME], without the express consent of the [NAME].

3. The rights of the [NAME] over [NAME] do not depend on occupation, effective or notional, or on any express proclamation.

4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Article 3

The rights of the [NAME] over [NAME] do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters.

In short, the effect of these articles is to give to the [NAME] exclusive rights of exploration of its continental shelf and an exclusive right to exploit its natural resources. These rights, however, do not amount to a complete sovereignty over the shelf nor over the superjacent waters or airspace (Art. 3). Further, these rights are [NAME] to certain obligations which are predominantly set out in Art. 5.

According to its [NAME] title the Act is "An Act Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to [NAME] in respect of [NAME] and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from [NAME]."

Sections 6, 10 and 11, around which the argument principally centred, provide as follows:

10. It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the [NAME] in right of the Commonwealth.

It will be seen that the Act has a dual effect; first, it asserts, at [NAME] level, Australia's rights over the territorial sea and [NAME]; secondly, it declares as a matter of domestic law that these rights are vested in the Commonwealth—this much at least flows from the reference to "the [NAME] in right of the Commonwealth" in ss. 6, 10 and 11 and the saving provisions contained in ss. 14, 15 and 16.

The concept expressed by the word "sovereignty" in Arts 1 and 2 of [NAME] on the Territorial Sea is that of supreme authority, the supreme authority which a State is recognized by [NAME] as having over its land territory, howsoever the exercise of that supreme authority may be divided between the municipal organs of government within the state, as for example within a state which is a [COMPANY]. As the [NAME] of Justice stated in the North Sea Continental Shelf Cases [43] and as [NAME]. observed in [NAME] v. [NAME] [44] , [NAME] is considered to be, for the purpose of the exercise of [NAME] rights by the [NAME], "a natural prolongation of its land territory". So also is the bed of the territorial sea. This is not to say that the seabed is territory in the sense that the land territory of the [NAME] is territory. But it is to say that [NAME] to [NAME] and to the rules of [NAME] the [NAME] possesses that supreme authority over the bed and subsoil of territorial waters which it enjoys over its land mass, and that in the exercise of this authority the [NAME] may in accordance with [NAME] assert ownership and [NAME] if it chooses so to do.

1. [1969] I.[NAME]. Rep. 3. 2. (1969) 122 [NAME]., at p. 186.

The Act seeks to give effect to [NAME] by asserting that the sovereignty in respect of the territorial sea, its land and subsoil as well as the airspace over it "is vested in and exercisable by the [NAME] in right of the Commonwealth" (s. 6). Conformably with my conclusions as to the location of the seaward boundaries of the [NAME] and the scope of the legislative power under s. 51 (xxix.), s. 6 of the Act asserts the existence of that supreme authority which is acknowledged by [NAME] to reside in the [NAME] and provides that it is vested in, and exercisable by the [NAME] in right of the Commonwealth, an expression which is apt to include the [NAME]. The section cannot, and does not, deny to an [NAME] the capacity which it has, in the exercise of its power to legislate for the peace, order and good government of the State, to apply its laws to the territorial sea, its bed and subsoil, but such laws will to the extent of any inconsistency with a valid Commonwealth law enacted under s. 51 (xxix.) or any other head of power, be rendered inoperative by s. 109. Whether the Commonwealth can hereafter acquire the seabed as a territory of the Commonwealth and thereafter legislate under s. 122 is not a question which needs presently to be pursued.

Section 8(a) enables the [NAME]-[NAME] to declare an historic bay to be an historic bay and to define its seaward limits. Such a bay, in accordance with [NAME]. 6 of [NAME] does not form part of the territorial sea, but is held to be inland waters. Section 8(b), a similar provision relating to historic waters, is less clear in its operation, but it raises no point of importance.

The conjunction of s. 10 and s. 14 is not without its difficulty. Section 10 declares that sovereignty in respect of inland waters (that is, waters of the sea on the landward side of the baseline of the territorial sea), so far as they extend from time to time, and in respect of the superjacent airspace and subjacent seabed and subsoil is vested in, and exercisable by the [NAME] in right of the Commonwealth.

Apart from the saving provisions of s. 14 this section might be seen as an attempt to vest in the [NAME] rights in inland waters lying within State boundaries. The expression "inland waters" is confined to waters of the sea. Even so, there will be waters below low-water mark which are on the landward side of the baselines of the territorial sea. A baseline drawn between adjacent headlands will enclose inland waters in the sense described standing between low-water mark and the baseline so drawn. These waters will stand outside State boundaries and will fall within s. 10.

The saving provisions of s. 14 are designed to preserve State rights over internal waters within the territory of a State, as for example, waters of the sea within a bay which is on the landward side of the baselines of the territorial sea. Consequently, the operation of ss. 10 and 14, so it seems to me, do not operate so as to attempt to vest in the Commonwealth sovereignty over waters within the territory of a State.

In giving effect to [NAME] on [NAME] the Act is a valid exercise of the power conferred by s. 51 (xxix.). It is in no sense inconsistent with the territorial rights of [NAME].

I would answer the question asked in the affirmative and dismiss the suits.

[NAME[NAME].

The first question which I ask is—(1) What is the sovereignty of which the Act speaks and in what way does it speak thereof? If it is only that sovereignty of Australia which Australia as a [NAME] asserts among the [NAME] and if it does no more than declare that sovereignty, then the Act is in my opinion valid; but whether it be valid or not, no question is raised which falls to be determined between the [NAME] as to the extent of their respective [NAME]. If Australia cannot declare its sovereignty over the whole or any part of its territory or of the seas beyond then certainly no State could do so. There is in this no impingement on State rights.

If the Act not only declares the sovereignty among [NAME] but also provides how that sovereignty shall be exercised within the Commonwealth, then the question arises whether the Commonwealth has purported to provide for the manner in which [NAME] power shall be exercised within the boundaries of [NAME] as they existed at 1st January 1901. That question will be resolved by determining the question—(2) Were any parts of the sea, in respect of which the Act declares that sovereignty shall be exercisable by the [NAME] in right of the Commonwealth expressly comprised within the boundaries of a State or [NAME] at 1st January 1901? If that question be answered Yes, the Act is invalid so far as it purports to confer the exercise of power solely upon the Commonwealth to the exclusion of the exercise by [NAME] of their [NAME] in respect of [NAME] matters upon which the Commonwealth under the Constitution has no power to legislate.

But if that question be answered in the negative, then it is necessary to ask—(3) Does any part of that sea, though it be not expressly within the boundaries of a State or [NAME], adhere to the State or [NAME] which it adjoins so that by implication or operation of law the adjoining State has the same [NAME] in respect thereof as it has over the territory expressly comprised within its boundaries?

If that question be answered Yes, the Act will be invalid to the same extent as it would be if the second question be answered Yes. But if the third question be answered in the negative, a question remains—(4) Does a declaration by Australia that it has sovereignty or [NAME] rights among the [NAME] over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same [NAME] as it has over the territory expressly comprised within its boundaries?

If these last three questions arise and are answered in the negative, then the plaintiff [NAME] have not established that the Act is invalid unless it be beyond the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or [NAME] rights over an area of the sea outside the boundaries of [NAME] where that sea is not territory of the Commonwealth within the meaning of s. 122 of the Constitution. And that is the fifth, and last, question—(5) What is the sovereignty of which the Act speaks and in what way does it speak thereof?

The Act is described as an Act relating to sovereignty in respect of certain waters of the sea and in respect of the airspace over, and the seabed and subsoil beneath, those waters and to [NAME] rights in respect of [NAME] and relating also to the recovery of minerals, other than petroleum [sic], from the seabed and subsoil beneath those waters and from [NAME]. There is a preamble consisting of four recitals. First it is recited that the belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace thereover and the bed and subsoil thereof are within the sovereignty of Australia. Then there is a recital that Australia is a party to [NAME] on the Territorial Sea and the Contiguous Zone, a copy of which is set out in the First Schedule to the Act. Next there is a recital that Australia as a [NAME] has [NAME] rights in respect of [NAME] (that is to say, the seabed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources. Lastly there is a recital that Australia is a party to [NAME] on [NAME], and a copy of that [NAME] is set out in the Second Schedule to the Act. "Continental shelf" is defined in s. 3 to have the same meaning as in [NAME].

The Act in ss. 5-13 provides for the sovereignty of Australia in respect of the territorial sea and [NAME] rights of Australia in respect of [NAME]. In respect of the territorial sea, the [NAME]-[NAME] may by s. 7 from time to time by proclamation declare not inconsistently with [NAME] the limits of the whole or of any part of the territorial sea of Australia. He may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea or of any part thereof is to be measured. He may declare a bay to be an historic bay and define the seaward limits of that bay, or he may declare that waters are historic waters and define the limits of those waters. Under s. 9 the minister may cause to be prepared charts showing any matter relating to the limits of the territorial sea. Thus by the Act the limits of the territorial sea of Australia may be defined. Similar provisions are made in respect of the limits of [NAME].

In respect of the territorial sea, s. 6 declares and enacts that the sovereignty in respect of that sea and in respect of the airspace over it and in respect of its bed and subsoil is not only vested in but also is exercisable by the [NAME] in right of the Commonwealth. By s. 10 it is declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time and in respect of the airspace over those waters and in respect of the seabed and subsoil beneath those waters is vested in and exercisable by the [NAME] in right of the Commonwealth. The waters of the sea here referred to are in my view the waters of the sea which cover the sea bottom. The seashore between high and low-water mark is not "waters of the sea" and therefore is not "internal waters of Australia" within s. 10.

There are saving provisions in ss. 14, 15, and 16. In particular, in s.14 there are savings as to sovereignty or [NAME] rights in respect of any waters of the sea which are waters of or within any bay, gulf, estuary, river, creek, inlet, [NAME] or harbour and which were on 1st January 1901 within the limits of a State and which remain within the limits of the State. Thus the effect of s. 10 is to ensure that sovereignty and [NAME] rights in respect of all internal waters of Australia not falling within the saving provisions of s. 14 are not only vested in but also exercisable by the [NAME] in right of the Commonwealth.

In respect of [NAME], s. 11 declares that [NAME] rights of Australia as a [NAME] in respect thereof for the purpose of exploring it and exploiting its natural resources are both vested in and exercisable by the [NAME] in right of the Commonwealth.

The first question is the meaning of the word "sovereignty" in the Act. The word expresses a concept notoriously difficult of definition but I would essay that sovereignty under the law of [NAME] is a power and right, recognized or effectively asserted in respect of a defined part of the globe, to govern in respect of that part to the exclusion of [NAME] or [NAME] or peoples occupying other parts of the globe. External sovereignty, so called, is not mere recognition by other [NAME] but is a reflection, a response to, the sovereignty exercised within the part of the globe. Looked at from the outside, the sovereignty within that part of the globe, assuming it to be full sovereignty and not the limited sovereignty which may exist in the case of protectorates and the like, is indivisible because [NAME] sovereigns are not concerned with the manner in which a [NAME] may under the laws of that [NAME] be required to exercise its [NAME] or with the fact that the right to exercise those [NAME] which constitute sovereignty may be divided vertically or horizontally in constitutional structure within the State. Therefore, although a sovereignty among [NAME] may thus be indivisible, the internal sovereignty may be divided under the form of government which exists. However, that does not mean that external sovereignty and internal sovereignty are in kind different. Sovereignty in each case has the same content, the right and power to govern that part of the globe.

The provision that sovereignty in respect of the territorial seas is vested in the [NAME] in right of the Commonwealth is an assertion and declaration to the world of that aspect of sovereignty which is sometimes called external sovereignty. It does no more than could be done by the prerogative act of asserting that sovereignty.

The Act also provides that that sovereignty is exercisable by the [NAME] in right of the Commonwealth. It does not appear to me that this is merely an assertion of external sovereignty. It correctly speaks of the same sovereignty but now the legislation looks at the manner in which that sovereignty shall be exercised within Australia. It is a legal provision that the asserted sovereignty will be exercisable in Australia by the [NAME] in right of the Commonwealth. I read these words to refer to the [NAME] in all its aspects in that right, the [NAME] in Council, the [NAME] in [NAME], and the [NAME] as the fount of justice. It is an assertion that the sovereignty is able to be exercised by the Commonwealth to the exclusion of [NAME]. That exclusion, however, is mitigated by the saving of State laws in s. 16(b).

Can the [NAME] so provide? There can be no doubt that if, beyond waters of or within any bay, gulf, estuary, inlet or [NAME] referred to in s. 14, the sea which may be proclaimed by the [NAME]-[NAME] under s. 7 is within the boundaries of a State, it is beyond the power of the [NAME] to provide that sovereignty in respect thereof is exercisable by the Commonwealth to the exclusion of that State. The next question therefore is—

(2) Were any parts of the sea in respect of which the Act declares that sovereignty shall be exercisable by the [NAME] in right of the Commonwealth expressly comprised within the boundaries of a State or [NAME] at 1st January 1901?

It is necessary to examine the documentation by way of statute, letters patent, commission or proclamation whereby the boundaries of [NAME] are established.

I do not propose to relate fully the history of the specification and alterations of the boundaries of the various [NAME]. That has been comprehensively done by Mr. [NAME] in his article appearing in the Australian Law Journal, vol. 45 (1971), p. 671. [NAME] claim, the boundaries of [NAME] were first defined in the commissions to [NAME] [NAME] which referred to "our territory called [NAME], extending from the northern cape or extremity of the coast called Cape York, in the latitude of 10°37′ south, to the southern extremity of the said territory of [NAME] or South Cape, in the latitude of 43°39′ south, and of all the country inland to the westward" as far as 135° longitude east "including all the islands adjacent in the Pacific Ocean, within the latitude aforesaid and of all towns, garrisons, castles, forts and all other fortifications or other military works which now are or may be hereafter erected upon this said territory". In my opinion this language refers to land only. As will hereafter appear, a reading of the language in the light of [NAME] principle will include there-in the waters which may be compendiously described as "inland waters" and will everywhere include the seashore down to low-water mark. But the language itself refers to land only.

In 1824 [NAME] [NAME] took possession of the North Coast of the continent from longitude 135°E, the existing boundary, to longitude 129°E and the 1825 commission to [NAME] [NAME] described the territory of [NAME] as extending to the longitude 129°E.

[NAME] was constituted a separate [NAME] by Order in Council in 1825. A [NAME] in Chief was appointed "in and over our Island of [NAME], and all Islands and Territories lying to the Southward of Wilson Promontory and to the northward of the forty fifth degree of south latitude" (this was 1°21′ south of the South Cape latitude described in [NAME] commission) "and between the hundred and fortieth and hundred and fiftieth degree of longitude East from Greenwich and also [NAME] and of all Towns, Garrisons, Castles, Forts and all other Fortifications or other Military Works, which are or may be hereafter erected upon any of the said Islands and Territories". Again this language appears to me to refer only to the land. It has been submitted that a rectangle was described by the latitudes and longitudes in such a way that both land and sea contained therein were intended to be included as territory of the [NAME]. It has been further submitted that if land only was intended to be included in the description then the word "territories" was superfluous and that the words "Island" and "Islands" would have sufficed. But on the other hand it could be said that if the [NAME] was intended to consist of the whole surface of the globe within the described rectangle, no further description would have been necessary. The primary meaning of "territory" is land and I can discover in the language nothing which would displace that primary meaning.

[NAME] Australia, which I shall leave for the moment, the next [NAME] established was [NAME]. By the Letters Patent of 1836 the [NAME] was erected with boundaries fixed on the North 26°S and on the South the Southern Ocean. East and West land boundaries were fixed and the description continued "including therein all and every the Bays and Gulfs thereof together with the Island called Kangaroo Island and all and every the Islands adjacent to the said last-mentioned Island or to that part of the mainland of the said [NAME] " In 1861 the [NAME] boundary was extended to meet the Eastern boundary of [NAME] Australia but the description of the Southern boundary has not been altered, directly or indirectly. The language speaks for itself.

[NAME] Australia was first settled as a [NAME] in 1829. Its boundaries, which at all times lay wholly outside the boundaries of [NAME], were finally fixed by Letters Patent of 10th July 1873 as follows:

[NAME] is, for the future, to be considered and taken as extending from the parallel of thirteen degrees thirty minutes south latitude, to West Cape Howe in the parallel of thirty-five degrees eight minutes south latitude and from the Hartogs Island, on the [NAME], in longitude [NAME] hundred and twelve degrees fifty-two minutes to [NAME] hundred and twenty-nine of east longitude including all the islands adjacent in the Indian and Southern Oceans within the latitudes aforesaid and within the longitudes aforesaid This language is consistent only with an intention to refer to the land, the mainland and the islands. The sea surrounding the islands is not included.

[NAME] was made a separate [NAME] in 1850 by the Australian Constitutions Act. The Act provided that:

the Territories now comprised within the said [NAME], including the [NAME] , and bounded on the North and North-east by a straight Line drawn from Cape How to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the [NAME], should form the new [NAME]. The [NAME] was of course a district of [NAME]. At this stage [NAME], by virtue of the 1848 Commission to [NAME], comprised: all that portion of [NAME] or New Holland, lying between the 129th and the 154th degrees of East longitude and between the 26th and the 40th degrees of South latitude, including all the Islands adjacent in the Pacific Ocean, within the latitudes aforesaid, save and except that part of Our said Territory hereinbefore described, which is called and known by the name of the "[NAME]". and "in addition all Our Territory lying Northward of the 26th degree of South Latitude, with all the Islands adjacent in the Pacific Ocean". (The "addition" was related to the inclusion in [NAME] of the territory which had been temporarily created as the [NAME] of North Australia. It is not significant for present purposes.)

The boundaries of [NAME] at that date were defined by reference to "[NAME] or New Holland" and this territory, as I have stated, was land and did not include any adjoining open seas. The Victorian boundaries stated in the Act of 1850 were only inland boundaries to the North and North East and to the West. There was no need to state an Eastern or Southern boundary because there lay the sea. The [NAME] was thus defined in terms of its land mass.

The boundaries of [NAME] were re-stated in the [NAME] of 1855:

For the Purpose of this Act, the Boundaries of the [NAME] of [NAME] shall, except as herein-after excepted, comprise all that Portion of Her [NAME]'s Territory of Australia or New Holland lying between the [NAME] hundred and twenty-ninth and [NAME] hundred and fifty-fourth Degrees of East Longitude and Northward of the Fortieth Degree of South Latitude, including all the Islands adjacent in the Pacific Ocean within the Latitude aforesaid, and also including [NAME] save and except the Territories comprised within the Boundaries of the [NAME] and the [NAME] of [NAME], as at present established There is nothing in this language which can be read as a reference to parts of the open sea. In particular, the reference to "islands" is hardly consistent with such a reading of the section.

It should be noted that in 1863 so much of the [NAME] of [NAME] as is now the Northern Territory was annexed to [NAME].

[NAME] was erected into a separate [NAME] in 1859. By Letters Patent of 6th June 1859 Her [NAME] "separated from our [NAME] of [NAME] and erected into a separate [NAME] so much of the said [NAME] of [NAME] as lies northward of a line commencing on the sea coast at Point Danger" (then the southern and [NAME] land boundaries were described) "together with all and every the adjacent islands their [NAME] in the Pacific Ocean". I do not think that the words "[NAME]" are apt to include the open sea surrounding the islands. Once it is recognized that land between high and low-water mark is part of an island it may be that the words add little but in any case there does not appear any intention to do more than separate a part of the territory of [NAME] and so to erect a new [NAME].

In 1862 by Letters Patent so much of [NAME] as lay north of 26° South and between 141° and 138° East, "together with all and every the adjacent islands, their [NAME] in the Gulf of Carpentaria" was annexed to [NAME]. For the same reasons as I have expressed above, this can only be read as adding land to the [NAME].

In 1872 "all the Islands lying and being within sixty miles of the coast" of the [NAME] of [NAME] were annexed to and made part of the [NAME].

In 1879, by authority of Letters Patent and after the passing of the [NAME] of 1879 Q., the [NAME] proclaimed that certain Islands described in a Schedule to the Proclamation should be annexed to and become part of the [NAME] of [NAME]. The Schedule referred to "Certain Islands in Torres Straits and lying between the Continent of Australia and Island of New Guinea, that is to say all Islands included within a line " That line is then stated. Clearly the reference is only to the islands and not to the sea contained between the mainland and the line there described.

From this summary it appears that no description of [NAME] in any case expressly included within their boundaries at 1st January 1901 any part of the adjoining open sea. It follows that references in the Constitution statutes to "the waste lands of the [NAME]" will not as a matter of expression include any land (or sea) not included in the boundaries of [NAME].

I turn therefore to the next question—

(3) Does any part of the sea, though it be not expressly within the boundaries of a State or [NAME], adhere to the State or [NAME] which it adjoins so that by implication or operation of law the adjoining State has the same [NAME] in respect thereof as it has over the territory expressly comprised within its boundaries?

It is to [NAME] that [NAME] must look in order to determine either the meaning of words used in the statutes and proclamations or the law which operates in application of the descriptions (in those statutes and proclamations) to the [NAME] matters. Though there is a rule that the statute or other act should be construed so that it will be in conformity with [NAME] rather than the contrary, it does not follow that words or descriptions in a proclamation or a statute should be given an extended meaning or operation because the giving of that extended meaning or operation would not contravene accepted principles of [NAME].

In order to discover [NAME] principle it is necessary to go back to that law as it developed in its place of origin, England. If, by [NAME], England had included any of the seas which adjoined the land and yet were not intra fauces terrae then it would indeed be a strong argument that a [NAME] also included such seas. But England did not in a relevant sense include those seas under [NAME]. If it had, [NAME] would have been the law which governed those seas. This would have been so irrespective of which court had jurisdiction to apply [NAME] in those seas.

The question is not whether the seas were part of the [NAME] of the [NAME[NAME] or of the realm, if that word be used in the sense of the [NAME] of that [NAME]. The question whether any open seas were part of the realm [NAME] is over-simplified and therefore misleading for the answer depends upon the meaning given to the word "realm". If the word means all that which was within the allegiance of the [NAME[NAME] as of his [NAME[NAME], then the seas were within the realm. But if the word means that place where [NAME] extends, then the seas are outside the realm. Co. Litt. s. 439. In the construction of various statutes it has been a question in which sense the word is used.

I cannot help thinking that some confusion arises from the term "realm" being used in more than [NAME] sense. Sometimes it is used, as in the statute of [NAME], to mean the land [NAME], and the internal sea within it, sometimes as meaning whatever the sovereignty of the [NAME[NAME] extended, or was supposed to extend, over.

When it is used as synonymous with territory, I take the true meaning of the term "realm [NAME]" to be the territory to and over which [NAME[NAME] extends—in other words, all that is within the body of any county—to the exclusion of the high seas (Reg. v. [NAME], per [NAME[NAME]. [45] ).

1. 1876) 2 Ex. D. 63, at p. 197. 1. 1876) 2 Ex. D. 63, at p. 197.

The [NAME] established principle, doubted by some of the minority in Reg. v. [NAME] (see per [NAME[NAME]. [46] and [NAME[NAME].A. [47] ), was that [NAME] never did apply upon the high seas. [NAME]., another of the minority, did not doubt the correctness of this view but held that [NAME] had been extended to the seas by statute [48] . [NAME[NAME]. in his leading judgment among the majority showed that [NAME] had never extended to the seas [49] . I am satisfied that he was correct. [NAME] was the law which applied to all persons within England of which it was the law from time immemorial. It did not apply to persons or in places outside England unless it was made applicable by statute (e.g. to Wales by 27 Hen. VIII c. 26) or unless it, with applicable statute law, was carried abroad to lands settled as a [NAME]. "The kingdom [NAME], over which our municipal laws have jurisdiction, includes not, by [NAME], either Wales, Scotland, or Ireland, or any other part of the [NAME]'s [NAME], except the territory [NAME] only." [NAME]'s Commentaries, 15th ed. (1809), vol. 1, p. 93.

1. (1876) 2 Ex. D., at p. 115. 2. (1876) 2 Ex. D., at p. 144. 3. (1876) 2 Ex. D., at pp. 92, 96. 4. (1876) 2 Ex. D., at p. 163.

Within England the [NAME] was [NAME] under [NAME]. England for this purpose was that land and those waters intra fauces terrae within the counties [NAME]. It thus included inland waters even though the principles for determining what were inland waters were not conclusively settled. It included the foreshore (down to low-water mark) of counties which had a seaboard. It included accretions to the foreshores or seashores by slow and imperceptible change.

The foreshore between high and low water and the beds of all waters intra fauces terrae over which tidal waters flowed were vested in the [NAME] as part [NAME], but significantly were so vested under [NAME] and [NAME] thereto. Therefore they could be held under rights springing from [NAME]. They could be parts of manors or honours, and could therefore be the [NAME] of tenures and estates under the English law of real property. Rights in respect of them could rise by prescription as well as by proved grant. Those rights could exist in individuals or corporations or in communities of free inhabitants.

The sea beyond was not within the counties and was not part [NAME] under [NAME], " for as to the right of the [NAME] extending three miles beyond low-water, it is quite extravagant as a jurisdiction belonging to any manor. As between [NAME] and [NAME], the territorial right may, by a sort of tacit understanding, be extended to three miles, but that rests upon different principles " R. v. Forty-nine Casks of Brandy [50] .

1. (1836) 3 Hag. Adm. 257, at p. 289 [166 [NAME]. 401, at p. 413].

Nevertheless, the seas belonged to the [NAME], both in governorship and proprietorship. This has been stated time and time again and must be accepted. The correctness of this view was doubted by the majority in Reg. v. [NAME] [51] and it is this aspect of the decision which has particularly been the [NAME] of doubt or criticism: see, for example, Secretary of State for India v. [NAME] [52] . That case reaffirms the [NAME] and proprietorship of the [NAME] in the sea which it claimed, the claim by that time being probably limited to the belt within three miles of its land [NAME]. Carefully the Privy Council refrained from defining the extent of the sea so claimed but recognized that it was at least a three miles belt.

1. (1876) 2 Ex. D. 63. 2. (1916) [NAME]. 43 [NAME]., at pp. 199 et seq.; 85 [NAME]., at pp. 224 et seq.

The [NAME]'s rights in or over the open seas adhered to him as a ius regale in right of his [NAME[NAME]. These rights adhered to him by virtue of his kingship in its national rather than its feudal aspect. The royal right was a prerogative recognized by [NAME] and to that extent it was part of [NAME] but it did not have its source in that law. His rights therein were not governed by [NAME] and the extent thereof was not determined by that law. So far as his rights were governed they were governed by statute, most importantly in ancient times by the Great Charters.

But since the [NAME]'s claim was recognized by [NAME] it could be said to be a right under [NAME]. In [NAME], attributed to [NAME], it is said:

The narrow sea, adjoining to the coast [NAME], is part of the wast and demesnes and [NAME] of the [NAME[NAME], whether it lie within the body of any county or not.

This is abundantly proved by that learned treatise of [NAME] called Mare Clausum; and therefore I shall say nothing therein, but refer the reader thither.

In this sea the [NAME[NAME] hath a double right, viz. a right of jurisdiction which he ordinarily exerciseth by his [NAME], and a right of propriety or ownership.

[NAME] in his "Essay on the Rights of the [NAME] in the Sea-shores of the Realm" (published in 1830) says at pp. 1-3: The [NAME], sometimes called the Four Seas, are those which encompass the coasts [NAME], Scotland, and Ireland. To the west they not only include the sea between [NAME] and Ireland, but extend over the Atlantic Ocean, which washes the [NAME] coasts of Ireland: this [NAME] part of our sea is subdivided; for, so much as runs between England and Ireland is called St. George's Channel, or the Irish Sea; and the sea on the west coast of Scotland is sometimes named the Caledonian, Deucaledonian, or Scottish Sea, and sometimes the North Sea. To the east we have the [NAME], which is bounded principally by the opposite coasts of Germany, and the [NAME] [NAME] (now Belgium); lastly, to the south there is the [NAME], or Sea, which runs along the French coast, and, comprehending the Bay of Biscay, ends with the northern coast of Spain.

Over the [NAME] seas, the [NAME[NAME] claims an absolute [NAME] and ownership, as [NAME], against all the world. Whatever opinions [NAME] [NAME] may entertain in regard to the validity of such claim, yet the subjects of the [NAME[NAME] do, by [NAME] of the realm, acknowledge and declare it to be his ancient and indisputable right.

This [NAME] and ownership over the [NAME] seas, vested by our law in the [NAME], is not confined to the mere usufruct of the water, and the maritime jurisdiction, but it includes the very fundum or soil at the bottom of the sea. "The sea is the [NAME]'s proper inheritance," (Dav. Rep. 57. [NAME] on Sewers, 39, 41) and he is "[NAME] of the Great Waste," both land and water; "tam aquæ quam soli." [NAME], in his celebrated treatise on the [NAME] of the Seas (Mare Clausum, Lib. 2 Ch. 22 and 24), would seem to contemplate this ownership of the [NAME], as combining both jurisdiction and ownership; the [NAME], indeed, would seem to involve the other, if [NAME] doctrine to its full extent be admitted.

There are eminent [NAME] upon natural and upon national law, who have controverted [NAME] doctrines, and have denied the [NAME[NAME]'s exclusive [NAME], and consequently his ownership over the [NAME] seas; but however this may be, and probably will ever continue, vexata quæstio between such [NAME], we know that the [NAME] on the common and municipal law [NAME], as well as the decisions of our judicial courts, all speak the same language, and appropriate the [NAME] of the [NAME] seas tam aquæ quam soli, to the [NAME].

Why, then, did the right to the seas adhere to the [NAME] in right of his [NAME[NAME]? It was because that [NAME] asserted an excellence and pre-eminence over other sovereigns. The breadth or width of his assertion from time to time depended on high politics and it varied from time to time depending on considerations of power and of expediency. The history of its changes lies not in legal history but in political history. The [NAME] in right of his [NAME] at [NAME] time claimed the narrow seas between England and the continent of Europe. He claimed those seas right up to the opposite land's edge. He at another time claimed the Four Seas which washed the shores of the [NAME] and the claim extended at times even as far as the Americas. He would not recognize [NAME] rights therein of any other, not the [NAME] of Scotland nor the [NAME] nor the [NAME] ([NAME] [NAME] took the title [NAME] and [NAME] the title, [NAME] of Ireland), nor the sovereigns of Europe. Even after France was lost at the end of the Hundred Years War, the [NAME[NAME] maintained his claim to the seas up to the coast of France. But at [NAME] stage he did recognize that the [NAME] of Spain had sovereignty in the sea off the coast of Spain.

"The sea is of the ligeance of the [NAME] as of his [NAME[NAME] " 6 R. II Fitz. Protect.

46. See Case of the [NAME] [53] where this statement is applied to the seas of Ireland which was not only outside [NAME] but had its own [NAME] (though from an early time the [NAME] was [NAME] thereover). In that case it is also said that the sea is the [NAME]'s proper inheritance and that for that reason before the statute of (1344) 18 Edw. III c. 3 no [NAME] could pass over the sea without the [NAME]'s [NAME] licence; but that there it is enacted that the sea shall be open to all merchants. And it should be added that by the Magna Carta of [NAME] public rights of fishing in tidal waters were preserved. [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [54] .

1. (1610) [NAME]. 149, at p. 152. 2. [1914] [NAME]. 153, at pp. 170-171.

It is important to note that what the [NAME] claimed, he claimed in right of his [NAME]. Not in right of the [NAME] which he [NAME] claimed nor in right of the [NAME] which descended to him nor by virtue of his overlordship of Man nor as [NAME], later [NAME], of Ireland, nor at a later time as [NAME] nor earlier as [NAME] or [NAME].

When the [NAME] claimed overseas [NAME] or [NAME] of the seas and made his claims as [NAME[NAME], [NAME[NAME] recognized those claims. As they were made in right of his [NAME], [NAME] regarded them as made by virtue of his prerogative as [NAME[NAME]. But when he claimed France he claimed it as the lawful [NAME] of that country. His claim would likewise be recognized by [NAME] but his claim was not a claim by virtue of his prerogative as [NAME[NAME].

Moreover, no [NAME] of that [NAME] could claim sovereignty over any part of the globe in his own right, unless that sovereignty was bestowed on him by a [NAME] power recognized by the [NAME] and the new sovereignty was recognized by the [NAME]. Unless under another [NAME], a [NAME] of the [NAME] could not own land except of that [NAME] because, if he could, he would be [NAME] of that land; and that he could not be.

[NAME], both in the First and the [NAME], were colonies of the [NAME] in right of his English and, later, [NAME]. At the same time, the [NAME] claimed the seas as being within his allegiance and his proper inheritance. When, therefore, the [NAME] created a [NAME] and appointed a [NAME] thereof can it be implied that some part of the open sea adjoining the land was included in the [NAME]? If so, that sea was governed by [NAME], which the settlers took with them as part of the law [NAME]. The rights of the [NAME] and his [NAME] in that part of the [NAME] consisting of the open seas would be rights under [NAME]. If the [NAME] in his body politic and if his subjects [NAME] were governed by [NAME] only upon the land and on waters intra fauces terrae, there is no place for an implication that those subjects, when under the [NAME] they settled a new [NAME], took [NAME] beyond the land and to some part of the sea adjoining the [NAME]. If it were so, the [NAME] would have the prerogative of establishing new courts to apply [NAME] not only upon the land of the [NAME] but on its adjoining sea as well. But the [NAME] had already and anciently exercised the prerogative to create the jurisdiction of the [NAME] [NAME] and this had been recognized and defined by statute. A statute would be required in order to supersede this jurisdiction as indeed it was when the [NAME] of [NAME] and [NAME] by 9 Geo. IV c. 83, s. 4 were given a jurisdiction to try offences under [NAME] committed on the seas and certain other places. See per [NAME[NAME]. in Reg. v. [NAME] [55] .

1. (1974) 131 [NAME]. 203, at p. 227.

Whether the boundaries of the [NAME] be proclaimed by letters patent or delineated by statute, far from there being an implication that some part of the sea was intended to be included, the implication must be to the contrary. However, it should be noted that the [NAME], like England, will include the waters intra fauces terrae and the seashore between high and low-water mark and the accretions thereto by slow and imperceptible change: [NAME]-[NAME] (Southern Nigeria) v. [NAME]. (Liverpool) [COMPANY]. [56] .

1. [1915] [NAME]. 599.

Nor could there be any rule of law operating to bring within the boundaries of a [NAME], defined by letters patent or by statute or otherwise, a part of the seas which did not expressly or by implication fall within the boundaries so defined. The same reasons which prevent the words used being taken by implication to include the open sea preclude such a rule of law.

It is therefore not to the point to say that the [NAME] had, by the time the [NAME] were founded and by the time the various letters patent and [NAME] statutes were made or passed, limited its claim to the open seas to the three mile strip of sea adjoining its various [NAME]. That did not change [NAME] even though the change might need to be recognized by [NAME] in its recognition of the [NAME]'s prerogative to claim such part or parts of the world's oceans as he saw fit and to withdraw such a claim.

It will be apparent from what I have written that I regard Reg. v. [NAME] [57] as correct in result. To describe it as a case concerned with the respective extents of jurisdiction of [NAME] courts and the court of [NAME] is not to diminish the importance of the decision but to emphasize its essential importance in the present context. The courts of [NAME] had no jurisdiction because [NAME] did not extend to regulate the rights and obligations of persons beyond the boundaries of the counties. The law (other than statute law) governing the rights and obligations of persons and things upon the sea was the English maritime law in content substantially the same as the common maritime law (unless any statute provided otherwise): The [NAME] [58] ; The [NAME] [59] . The jurisdiction of the [NAME] [NAME] extended to those persons matters and things which under the maritime law could be [NAME] to or determined by his court. The criminal jurisdiction under the maritime law did not extend to the acts of [NAME] on a [NAME] ship in a place where the maritime law was the applicable law. Whether or not the seas are described as outside the realm depends not on the extent of the realm but on the meaning given to the word, as I have earlier said, and in Reg. v. [NAME] [57] the question was the meaning of that word in the Statutes of [NAME]. It was not strictly necessary to decide in Reg. v. [NAME] whether the [NAME[NAME] owned the sea or any part thereof below low-water mark and not infra fauces terrae. The important point was that [NAME] did not extend there.

1. (1876) 2 Ex. D. 63. 2. (1882) 7 P.D. 137, at p. 143. 3. [1972] [NAME]. 242. 4. (1876) 2 Ex. D. 63.

What is further submitted is that when a [NAME] was made self-governing or at least when responsible government was introduced, the prerogative of the [NAME] manifested by his claim to the sea or a part thereof in right of his [NAME[NAME] or of the [NAME] was transferred in some way to his prerogative in right of his [NAME] in the [NAME].

The question whether, when the prerogative is exercisable in respect of particular territory by some [NAME] other than the [NAME] in right of his [NAME], that prerogative may be exercised by that other over some part of the sea adjoining the territory was posed and answered as [NAME] ago as 1622 by [NAME], "the famous and learned [NAME]:" as he was thereafter for centuries described, in his reading on the Statute of Sewers 23 Hen. VIII c.

5. The prerogative of the [NAME] to maintain and protect the coastal lands against inundations was replaced or reinforced by that Statute and the work so far as the Statute extended was entrusted to the Commission. [NAME] first lecture dealt with the law of the seashore and the adjoining sea in order to determine how far the Statute extended. He took as an example the supposed case of an island which formed by sudden effluxion of the sea off the coast of the County Palatine of Chester. [NAME] of the County Palatine, he said, is not only owner of the county but [NAME] of the prerogatives there.

[NAME] hath not onely Jura Regalia, but also Escheta Regalia within his said Palatinate, and so in my opinion is not onely owner of the County, but [NAME] of the Prerogatives there, and all Jurisdiction is to [NAME], onely a Writ of Error lieth in the [NAME]'s Bench of a Judgment there, like an Appeal to [NAME], then he is [NAME] of those Laws by which the Freehold and Inheritance of those lands be ruled, wherefore then should not these lands belong to his Grace? But [NAME] concludes that the newly formed lands would not pass into the ownership of [NAME] by his prerogative because "the County Palatine vested in [NAME], is prescribed within no other bounds than the word County doth confine it" and "no increase of the new left grounds can possibly become within the County of the City of Chester; for the bounds thereof cannot extend over that circle which their Charter hath confined them to: and so for the causes and reasons formerly declared, I take it, that the said Island is the [NAME] "

It should be noted that [NAME] would have the realm [NAME] as referred to in the Statute of Sewers extend over the seas to an undefined extent but this aspect of his thesis is related to the different meanings which may be given to the word "realm" as I have explained earlier, and does not impinge upon his analysis of the principle that a grant or delegation of the iura regalia cannot extend beyond the boundaries of the grant.

Not only is there no basis in English legal theory for the view that the seas adjoining the [NAME] came to be held by the [NAME] in right of those colonies and not in right of the [NAME], but also in practical effect such a view is untenable. The claim of the [NAME] to the sea is an assertion of sovereignty. It may or may not be recognized by the rules of [NAME] currently accepted as the law of [NAME]. It happens that a three-mile limit came during the nineteenth century to be recognized among the great majority of the great [NAME] but it was not universally accepted. [NAME]-[NAME] ([NAME] [NAME]) v. [NAME]-[NAME] (Canada) [60] . Nor was it agreed that a [NAME] owned the seas in the same way as it owned the land. It has never been so agreed. The right of innocent passage denies that proposition. And it may now be asked—could the [NAME] in right of a [NAME] deny innocent passage to [NAME] ships in the adjoining seas? The answer must be negative. Yet the [NAME] could do so by virtue of its prerogative. The repercussions among [NAME] could be very serious. They were serious enough when the Territorial Waters Jurisdiction Act, 1878 Imp. was passed and would have been equally serious if the act done in relation to the sea had not been the passing of a statute but had been a prerogative act or even if the prerogative assertion had been made. But the legality of the act would not have been cognizable by any municipal court. The [NAME], whatever it was, on the extent of territorial seas was and is no part of municipal law as a majority of the judges in Reg. v. [NAME] [61] made clear. Yet it is said that the prerogative of the [NAME] in respect of adjoining seas adhered to the [NAME] in right of a [NAME] provided that the [NAME] did not break the rules of [NAME]. I do not understand such a concept, when those rules are not part of any municipal law. And, this being so, how did the prerogative come to divide between the [NAME] which could refuse to recognize or obey a rule of [NAME] and the [NAME] in right of the [NAME] which could not so refuse? I can see no way. It was argued that because the prerogatives of the [NAME] in the [NAME], even those of a proprietary nature, became vested in the [NAME] in right of the [NAME] on the grant of responsible government ([NAME] v. [NAME]-[NAME] (N.S.W.) [61a] ) then, even though the sea and its bed be not part of the [NAME], the prerogative right thereto nevertheless became vested in the [NAME] in right of the [NAME]. The argument involves an obvious non sequitur.

1. [1914] [NAME]., at p. 174. 2. (1876) 2 Ex. D. 63. 3. (1913) 16 [NAME]. 404, at pp. 442, 448-456.

I now come to the argument that because a [NAME] could make laws which had effect and could be enforced upon the seas bordering that [NAME] therefore those seas were within the boundaries of the [NAME]. There can be no doubt that during the nineteenth century the rule of [NAME] which the [NAME] came to recognize as that to which it would subscribe was that the territorial waters of a [NAME] in the usual case extended a distance of three miles from the low-water mark of the shore of that state. When the [NAME] recognized this rule of [NAME], it at the same time forwent its ancient claim to seas beyond those limits. The [NAME] were bound to have regard to this limitation of the [NAME] claims where it was necessary and appropriate so to do because only what the [NAME] claimed in the seas was recognized by [NAME]. Likewise the courts would recognize a claim to jurisdiction in territorial waters by a [NAME] if that claim was not inconsistent with a claim of the [NAME]. Therefore when and so [NAME] as the [NAME] recognized the three-mile belt of sea as a belt within which an adjoining state could exercise jurisdiction, the [NAME] on well established principle would recognize such a claim of a [NAME]. That was done in [NAME] v. [NAME]. [62] .

1. [1902] [NAME]. 176.

A result of the limitation of the [NAME] claim to a three-mile belt of territorial sea was that a [NAME] was regarded by the [NAME] of the [NAME] (and very many examples have been cited to us) as having a power to make laws taking effect within but not beyond those limits. Now it is said that because [NAME] legislated in respect of the seas within these limits (with the approval of the [NAME] in their advices and therefore with no disallowance of the legislation) and because a [NAME] could not pass extra-territorial legislation, therefore the adjoining seas must have been within the territory of [NAME]. [NAME]. had occasion to refer in Reg. v. [NAME] [63] to the limits of [NAME] legislative power and I agree with his account thereof where he adopted, as I would now adopt, the statement of [NAME[NAME]. in [NAME] v. [NAME] [64] :

Of course, [NAME] 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 [NAME] 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 [NAME]. 1. (1974) 131 [NAME]. 203, at pp. 270-271. 2. (1969) 122 [NAME]. 177, at p. 189.

The argument, therefore, based on the limit of [NAME] legislative power, does not avail [NAME]. The exercise of legislative power and the exercise of [NAME] pursuant to legislative authority have been exemplified to us in great numbers but they are no more than examples of the exercise of the [NAME] legislative or executive [NAME] on the principle enunciated by [NAME].J. in the passage quoted. Whether or not they were all within that principle does not now fall to be determined.

I therefore answer my third question by stating that no part of the sea adheres to the State or [NAME] of the Commonwealth which it adjoins so that by implication or by operation of law the adjoining State has the same [NAME] in respect thereof as it has over the territory expressly comprised within its boundaries. And I turn now to my fourth question—

(4) Does a declaration by Australia that it has sovereignty or [NAME] rights among the [NAME] over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same [NAME] as it has over the territory expressly comprised within its boundaries?

The argument presented on this question depended upon the proposition that the boundaries of the respective [NAME] were co-extensive with the area in respect of which under the currently accepted law of [NAME] laws for the government thereof could be made. The proposition is inconsistent with the reasoning upon which I have answered the last question and I therefore do not repeat the reasons which lead me to deny this proposition. No answer to any of the questions raised in these cases can, in my opinion, be found in the law of [NAME] where that law is not a part of the municipal law.

But there is an associated approach which, although it was not put, needs to be considered. Can it be that when Australia expands by establishing sovereignty either by [NAME] assent or by national claim over an area adjacent to the boundaries of a State, the federal nature of our system of government likewise expands so that the area of new sovereignty becomes incorporated into the federal structure? It is a novel question but the answer cannot be that the boundaries of the various [NAME] expand. What happens in my view is that the limits within which it is proper for [NAME] to pass laws having an extra-territorial operation, limits to which I shall have occasion hereafter to refer, expand, so that laws which would not otherwise be for the peace and welfare and good government of a State may become so by virtue of the sovereignty of Australia in the seas within the extended area. However, any such laws will not be valid to the extent that they are inconsistent with a valid Commonwealth law. And that brings me to the last question—

(5) Is it within the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or [NAME] rights over an area of the sea outside the boundaries of [NAME] where that sea is not territory of the Commonwealth within the meaning of s. 122 of the Constitution?

The Act discloses no intention to acquire the territorial seas and the rights in [NAME] as territory of the Commonwealth. Nor does the Act purport to make the Conventions part of the law of the Commonwealth or to implement treaty obligations in the manner dealt with in R. v. [NAME]; [NAME] [NAME] [65] . It seems clear that on the interpretation which I have adopted of s. 6 and s. 10 the Act goes beyond the Conventions at least in so far as it provides how sovereignty shall be exercised in the relevant areas and perhaps in that it does not enact the limitations on the exercise of sovereignty and [NAME] rights which are contained in the two Conventions. The scope of the [NAME], as it fell to be considered in that case, therefore does not arise in the present case.

1. (1936) 55 [NAME]. 608.

It has been submitted that the words "external affairs" in s. 51 (xxix.) do not comprehend every external affair but are intended "simply to bring within power [NAME] [NAME] (now Commonwealth of [NAME]) Affairs as well as [NAME] Affairs". As I understand the submission, by "[NAME] Affairs" and "[NAME] Affairs" are here meant relationships with other parts of the [NAME] (Commonwealth of [NAME]) or other countries which are reflected in some dealing with them or attitude or stance taken towards them. It is therefore submitted that laws made with respect to external affairs do not comprehend all laws operating upon persons or things beyond the boundaries of the Commonwealth; that the source of power to make such laws must be found in other particular [NAME] matters of legislative power.

In my opinion the Commonwealth has the power to make laws in respect of any person or place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth.

The power to make laws in respect of any place outside and any matter or thing done or to be done outside the boundaries of the Commonwealth is clearly not vested in [NAME]. It is in my view now vested in the [NAME] by virtue of the [NAME].

The words "external affairs" must be given their ordinary meaning. It is true that the operation of the power may have been limited in 1900 by the concept that Australia, lacking sovereignty, could legislate only for its territory; but that limitation, if it existed, did not alter the meaning of the words. It is not a sufficient reason for reading down the meaning of these words that there are other provisions of the Constitution, e.g. s. 51 (xxx.), which expressly confer power to legislate with extra-territorial effect or which, e.g. s. 51 (x.), may place a particular limitation in favour of [NAME] on the power to legislate extra-territorially.

The express power of the [NAME] to make laws with respect to places outside, or matters or things done outside the boundaries of the Commonwealth is no more fettered by notions of extra-territoriality than is the power possessed by the [NAME]. That power attached to the [NAME] by virtue of the pre-eminence and excellence which it claimed and which, even though there be limitations imposed by [NAME] itself as well as by statute on its exercise by the [NAME] in Council, is wholly without limit when exercised by the [NAME] in [NAME]. Hence sprang the sovereignty of the [NAME] [NAME] at Westminster and it followed that no statute of that [NAME] could be held invalid on any ground whatsoever, even if it invaded the rights of the [NAME] or of the [NAME] under [NAME], even if it operated extra-territorially and even if it violated [NAME].

Clearly the [NAME] in the Australian Executive Council and in the [NAME] has [NAME] bound which the [NAME] [NAME] has not, for it cannot transgress the Constitution. But [NAME] to that Constitution it in Council and in [NAME] has that pre-eminence and excellence as a [NAME] [NAME] which is possessed by the [NAME] and [NAME]. Exactly when it attained those qualities is a matter of the constitutional history of the [NAME[NAME] largely reflected in the [NAME] following the Great War. Legal recognition came through the Statute of Westminster, 1931 and its later adoption by Australia. Now the Constitution is the only limitation. There is no gap in the constitutional framework. Every power right and authority of the [NAME] is vested in and exercisable by the [NAME] in Australia [NAME] only to the Constitution. The State [NAME] do not have that sovereignty which the [NAME[NAME] and now the Australian legislature possess. A State can only legislate in respect of persons acts matters and things which have a relevant territorial connexion with the State, a connexion not too remote to entitle the law to the description of a law for the peace welfare and good government of the State. [NAME] v. [NAME] [66] . The words of s. 51 of the Constitution do not import any similar territorial limitation and there now is none in the case of the Australian legislature. The words "external affairs" can now be given an operation unaffected by any concept of territorial limitation. The result is that the Commonwealth, outside the boundaries of [NAME] and [NAME] to any particular constitutional injunctions, may make laws on all [NAME] matters in exercise of its sovereignty.

1. [1956] [NAME]. 331, at pp. 351-353, 355.

I would dismiss all actions.

[NAME[NAME].

The six [NAME] have brought separate suits against Australia, claiming a declaration that the Seas and Submerged Lands Act 1973 is invalid. They have claimed in particular, or as an alternative, a declaration that certain sections are invalid either absolutely or in relation to certain areas or waters.

The Seas and Submerged Lands Act.

It is "an Act Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to [NAME] in respect of [NAME] and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from [NAME]". Although this [NAME] title refers to the recovery of minerals other than petroleum, any operative provisions dealing with this [NAME] were deleted from the legislation.

The preamble recites that a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over that sea and its bed and subsoil are within the sovereignty of Australia; that "Australia as a [NAME], has [NAME] rights in respect of [NAME] (that is to say, the seabed and subsoil of certain submarine areas adjacent to its coast but outside of the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources"; and that Australia is a party to two conventions (copies of which are set out in the schedule), [NAME] on the Territorial Sea and the [NAME] on [NAME].

In Pt I, Preliminary, "continental shelf" is given the same meaning as in [NAME] on [NAME], unless the contrary intention appears. Section 3(2) [NAME] that references to the territorial sea are to it "so far as it extends from time to time". Section 3(3) provides similarly for [NAME]. Sections 6 and 7 follow:

7.

(1) The [NAME]-[NAME] may, from time to time, by Proclamation, declare, not inconsistently with Section II of Part I of [NAME] on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea.

(2) For the purposes of such a Proclamation, the [NAME]-[NAME] may, in particular, determine either or both of the following:—

(a) the breadth of the territorial sea.

(b) the baseline from which the breadth of the territorial sea, or of any part of the territorial sea, is to be measured.

Section 8 empowers the [NAME]-[NAME] to declare historic bays and waters and define their seaward limits.

It is "declared and enacted" by s. 10—

that sovereignty in respect of internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the [NAME] in right of the Commonwealth. and by s. 11— that [NAME] rights of Australia as a [NAME] in respect of [NAME[NAME], for the purposes of exploring it and exploiting its natural resources, are vested in and exercisable by the [NAME] in right of the Commonwealth.

Section 12 enables the [NAME]-[NAME] to declare (not inconsistently with [NAME] on [NAME] or any relevant agreement to which Australia is a party) the limits of the whole or any part of [NAME[NAME].

Division 3 (Savings) provides that nothing in Pt II affects sovereignty or [NAME] rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, [NAME] or harbour and were on 1st January 1901 within the limits of a State and remain so or in respect of the airspace over, or of the seabed or subsoil beneath, any such waters.

Section 15 provides that nothing in Pt II shall be taken to vest in the [NAME] in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works; and s. 16 provides that Pt II is not to limit or exclude other laws of the Commonwealth or a Territory or any State law, or (except so far as it was expressed) to vest or make exercisable any sovereignty or [NAME] rights otherwise than as provided in Pt II.

The [NAME] of the Sea.

In [NAME], the rights in regard to territorial sea, seabed, subsoil, continental shelf and contiguous zone which are disputed in this case, are clearly the attributes of an [NAME] personality (see [NAME]. [NAME], Sovereignty over Submarine Areas, [NAME] of [NAME] (1950), p. 376). Whatever their nature, whatever their limits may be or may be altered to, they remain attributes of that personality. In this case, it is clear that the relevant [NAME] personality is Australia. It is "the State" for [NAME] purposes. The six [NAME[NAME] have no standing under [NAME] and are not recognized by it. In [NAME], they simply do not exist.

During the last three decades, the [NAME] of the sea has evolved rapidly (see [NAME] and others, New Directions in the Law of the Sea (1973), vols I-III ([NAME] of [NAME])). This has resulted from the large number of new [NAME], the abandoning of outdated concepts and the emergence of concepts new to [NAME], such as [NAME], the exclusive economic zones beyond the territorial sea, and the 200 mile patrimonial sea (see The Declaration of Santo Domingo Conference (1972), and the [NAME] of the [NAME] (1972)). New coastal [NAME] have challenged the traditional concepts of freedom of the seas. As a result, there has been a rapid change from an almost universal acceptance of a three-mile territorial sea to a [NAME] acceptance of a greater width. [NAME] claim twelve miles and a few claim greater widths.

Although the act of delimitation of sea areas "is necessarily a unilateral act", "the validity of the delineation with regard to other [NAME] depends upon [NAME]" (Anglo-Norwegian Fisheries Case [67] ). And, once the low-water mark is passed, the [NAME] domain is reached ([NAME] [68] ; Reg. v. [NAME] [69] ). The extent of territorial waters may be declared within the limits accepted by [NAME]. The various limits declared appear in the National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, [NAME], the High Seas and to Fishing and Conservation of the Living Resources of the Sea, [NAME], ST/Leg/Ser.B/15, (1970) and National Legislation and Treaties Relating to the Law of the Sea, [NAME], ST/Leg/Ser.B/16, (1974).

1. [1951] I.[NAME]. Rep. 116, at pp. 125, 132. 2. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889]. 3. (1876) 2 Ex. D. 63.

The legal doctrine of [NAME] was not mooted until 1945 (see Abu Dhabi Case [70] ), although the expression "continental shelf" was first used by a geographer in 1898. It is that part of the continental mass temporarily (measured in geological time) overlapped by the oceans. The first important formulation of it as a legal concept was in the [NAME] of 28th September 1945 (see [NAME]. [NAME]. [NAME]. [NAME] The Legal Claims to [NAME], Problems of [NAME], vol. 36 (1950), p. 115.

1. [1952] 1 I.C.L.Q. 247, at pp. 253-260.

Advancing technology has revealed new uses of the sea and caused greater activity in already established uses. This, together with the challenges of the new [NAME], has made the existing rules of the law of the sea either obsolete or inadequate and a restatement of the law of the sea necessary. The views of older [NAME] and authorities stressed in argument in this case are now largely irrelevant. [NAME] have referred to "the disintegration" of this body of the law (see [NAME], Limits to National Jurisdiction over the Sea, [COMPANY] (1974)).

The most dominant trend is the claim of [NAME] for larger and larger areas of the sea in order to exercise exclusive national jurisdiction for a greater number of purposes. Competing with this is the claim for collective [NAME] exploitation of the marine and submarine resources.

The developing law of the sea has involved an enormous range of subjects which have formed part of intense [NAME] discussion and disputation at continuing [NAME] conferences on the law of the sea. These subjects include the proposed [NAME] regime for the ocean floor, exclusive fishing zones, conservation zones, innocent passage and other rights to transit, scientific research, control of pollution, zones of peace and security, slavery, terrorism and drug trafficking on the seas. [NAME] agreements have been reached on many of these and provide in some cases for observation and enforcement of [NAME] rules of the sea.

The areas of [NAME] agreement on the subjects of ownership of territorial seas, rights to the seabed and subsoil under these seas, and to the continental shelves and contiguous zones are reflected in the two important conventions held in 1958 on the Territorial Sea and the Contiguous Zone, and on [NAME], which are referred to in the Act.

[NAME] contended that the Act was not authorized by any legislative power. I will deal with this contention under the headings, External Affairs, and [NAME] in s. 51.

External Affairs.

An exhaustive definition of external affairs is not necessary for this case and is perhaps not possible. External affairs extend over a whole range of economic, social and political subjects of [NAME] concern, some of which were probably not conceivable at the time of [COMPANY]; they are generally, but not necessarily, of [NAME] concern and include but are not limited to the [NAME] matters of treaties and conventions to which Australia is a party, and to the affairs of [NAME] bodies (such as the [NAME]) of which Australia is a member.

External affairs may also be internal affairs; they are not mutually exclusive. For example, control of traffic in drugs of dependence, diplomatic immunity, preservation of endangered species and preservation of human rights may be external affairs as well as internal.

External affairs are conducted under the executive power contained in s. 61 of the Constitution. Discussion and negotiation of treaties and other arrangements on a wide range of subjects is the daily business of the Australian Government, generally through the Department of [NAME] Affairs, but increasingly through other departments of State as Australia's internal affairs become more and more involved with those of other countries. This reflects the impracticability of dealing with many aspects of Australia's internal affairs, for example, minerals and energy, primary industry, environment and [NAME] management of the economy, other than in the context of [NAME] arrangements.

The [NAME] has power, [NAME] to the Constitution, to make laws with respect to "external affairs". The power authorizes, but is not limited to, the making of laws for implementation of treaties or conventions to which Australia is a party. From these, benefits flow to Australia either directly or as part of the [NAME]. Under these, Australia has often assumed obligations which can only be implemented by legislation. The practical experience of our Constitution is that this can only be done effectively by the national [NAME].

When legislation based on the [NAME] is considered, the presumption of validity should be applied as with other enactments. The use of the [NAME] may be novel, but this is no excuse for adopting a narrow, cautious or suspicious approach to Acts which are said to be supported on that power. The Constitution, particularly s. 51 (xxix.), is intended to enable Australia to carry out its functions as an [NAME], fulfilling its [NAME] obligations and acting effectively as a member of the [NAME]. If not, Australia would be an [NAME] cripple unable to participate fully in the emerging world order.

The Act deals directly with aspects of external affairs and is particularly directed towards the carrying out of the provisions of the two Conventions. It was suggested that the Act departs from the Conventions. If it does, it is still on subjects of external affairs. If there were no such Conventions, an Act in substance the same as this would still be a law with respect to external affairs.

The Seas and Submerged Lands Act is thus within the scope of the legislative power conferred on the [NAME] by s. 51 (xxix.) to make laws with respect to external affairs.

[NAME] in s. 51.

The Act may also be supported in various aspects by a number of other [NAME] in s. 51, such as trade and commerce with other countries in (i.), defence in (vi.), and measures in (xv.) and matters incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth in (xxxix.).

Other Contentions of [NAME].

Apart from contending that the legislation was not authorized by any legislative power, [NAME] also contended that, immediately before [COMPANY] in 1901, (i) each of the former colonies possessed its own territorial sea; (ii) the territorial sea was included in its territorial limits; (iii) the jurisdiction of the legislature was the same over the terriorial sea as over the mainland; (iv) the [NAME] in right of the [NAME] owned the seabed and subsoil of the territorial sea, just as it owned the land, where not otherwise appropriate.

They argued that, on [COMPANY], [NAME] brought with them their land and maritime territory. The territorial limits of the Commonwealth, like those of [NAME], included the territorial sea. The Commonwealth Executive, Legislature and Judiciary possessed the same [NAME] in respect of the maritime territory as in respect of the land territory.

For these propositions, [NAME] relied on [NAME] v. [NAME] [71] ; [NAME] v. [COMPANY]. [72] ; [NAME] v. [NAME] Association [73] ; [NAME] v. [NAME] [74] ; [NAME]. v. [NAME] [75] ; Commissioner of Taxation v. [NAME] [76] ; D. v. [NAME] [77] ; and [COMPANY]. v. [NAME] [78] . Similar arguments were advanced in regard to [NAME].

1. (1906) 4 [NAME]. 395. 2. (1908) 5 [NAME]. 737. 3. (1913) 16 [NAME]. 664. 4. (1920) 27 [NAME]. 417. 5. [1903] [NAME]. 471. 6. (1936) 36 [NAME]. (N.S.W.) 544. 7. [1941] [NAME]. 218. 8. [1947] Tas. [NAME]. 11.

Essentially, their claims are based on continuation of rights they had as colonies, together with rights which they would have had under the developing doctrines of the law of the sea.

I accept the arguments of [NAME] that, before [COMPANY], the six colonies, in their progression towards full [NAME] and independence, had exercised some jurisdiction over the adjacent sea, the seabed and its subsoil (in oyster and pearl fisheries and submarine mining). They were becoming involved in [NAME] agreements (for example, the [NAME] Union and [NAME] on Submarine Cables).

If [COMPANY] had not occurred, this progression would no doubt have continued. There might now be six [NAME] personalities, each with a territorial sea (not necessarily of the same width) and each claiming territorial rights over the seabed and [NAME].

However, this progression towards independence and [NAME] personality ceased on [COMPANY]. Each of [NAME] disappeared, their peoples [NAME] in a new political entity, "an indissoluble federal Commonwealth" (Commonwealth of Australia Constitution Act). The territorial sea was attached to the entity as the attribute of an [NAME] personality along with any potential attributes, such as continental shelves or zones. Even if they had become independent [NAME] before 1901 with [NAME] rights of an [NAME] state, on [COMPANY] they would have lost the territorial seas and other attributes of [NAME] personality.

Similar issues were raised and decided between the [NAME] and the Government of Canada (Reference Re Ownership of Off-Shore Mineral Rights [79] ) and between [NAME] and the Government of the [NAME] of America ([NAME] v. [NAME] [80] , [NAME] v. [NAME] [81] , [NAME] [82] , [NAME] v. [NAME] [83] ). The contentions of both the [NAME] and [NAME] were rejected in favour of the federal Governments.

1. [1967] [NAME]. 792; (1967) 65 D.[NAME]. (2d) 353. 2. (1950) 339 [NAME]. 707 [94 Law. Ed. 1221]. 3. (1950) 339 [NAME]. 699 [94 Law. Ed. 1216]. 4. (1947) 332 [NAME]. 19 [91 Law. Ed. 1889]. 5. (1975) 420 [NAME]. 515 [43 Law. Ed. 2d 363].

Contentions similar to those of the [NAME], and the English history of the law of the sea (including the consideration of Reg. v. [NAME] [84] ) were dealt with carefully by the [NAME] in the [NAME]. [NAME]'s Report, which was adopted by that Court in [NAME] v. [NAME] [85] . This report showed that the contentions of the [NAME] were groundless, and its reasoning is applicable here. In Australia, similar conclusions have been reached by individual judges (see [NAME] v. [NAME] [NAME] [86] and Reg. v. [NAME] [87] ).

1. (1876) 2 Ex. D. 63. 2. (1975) 420 [NAME]. 515 [43 Law. Ed. 2d 363]. 3. (1969) 122 [NAME]. 177. 4. (1974) 131 [NAME]. 203.

[NAME] have no [NAME] personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other [NAME] persons and no right to deal with other countries, through agents or otherwise. Their claims to [NAME] personality or to sovereignty are groundless (see [NAME] v. [NAME] [NAME] [86] ).

1. (1969) 122 [NAME]. 177.

The area of the territorial sea is tens of thousands of square kilometres. The area of the disputed submarine lands and subsoil is millions of square kilometres. Their resources are probably worth thousands of billions of dollars. They belong to the [NAME] not to [NAME]. The rights over them are vested in and exercisable by the Government of Australia on behalf of all the people of Australia.

The Seas and Submerged Lands Act 1973 is valid. The suits should be dismissed.