§ 35. “And of Every Part of the Commonwealth.”

TERRITORIAL LIMITS.—The Constitution and laws of the Commonwealth are in force within the territorial limits of the Commonwealth. By the law of nations the territorial limits of a country are allowed to extend into every part of the open sea within one marine league from the coast, measured from low water mark. This coastal margin is called “territorial waters,” or the “three-mile limit.” (See Note, Territorial Waters, infra.) By a later part of this clause the Constitution and the laws of the Commonwealth are conceded an extra-territorial force on British ships. (See Note, § 38 “British Ships.”)

But there may be “parts of the Commonwealth” which are not States. The territorial limits of the Commonwealth will not be necessarily co-terminous with the boundaries of the States and their territorial waters added; they will also embrace any other regions, with their adjacent territorial waters, which for the time being may not be included within the boundaries of a State, but which may be acquired by the Commonwealth in any of the ways authorized by the Constitution. Thus the seat of government, when determined by the Parliament and made federal territory, will no longer be part of the State of New South Wales, but will be a part of the Commonwealth. Again, the Queen might place British New Guinea under the control of the Commonwealth; she might detach a part of the vast area of Western Australia from that State and hand it over to the Commonwealth; she might do the same with the Northern Territory of South Australia; Tasmania might agree to surrender King's Island to the Commonwealth. Upon acceptance by the Commonwealth in each of these cases, the territory so surrendered to or placed under the authority of the Commonwealth would even before its erection into a State, or States, become a part of the Commonwealth, and the Constitution and laws of the Commonwealth would be as binding on the people there as on those of a State.

EXTRA-TERRITORIAL OPERATION Of LAWS.—A Colony, Dominion, or Federation, under the British Crown, has no jurisdiction to make laws operative beyond its territorial limits, unless such power is specially granted by Imperial Statute. “In this respect independent States are in the same position, at least with regard to the subjects of other independent States and their property, as those colonies of Great Britain which possess plenary powers of legislation and self-government. Both are restricted as to acts of legislation by territorial limits, those limits being fixed in the one case by an Imperial Statute, and in the other case by the established principles of international law. The first of the three celebrated axioms of Huberus lays down the rule for independent States in distinct terms: ‘Leges cujusque imperii vim habent intra terminos ejusdem reipublicœ omnesque ei subjectos obligant, nec ultra.’ ” (Per Higinbotham, J., in Regina v. Call, ex p. Murphy [1881], 7 V.L.R. [L.], p. 121.)

There are only two provisions in the Constitution Act explicitly relating to the extra-territorial operation of laws. The first is in Clause 5, which makes the laws of the Commonwealth in force on British ships voyaging solely between ports of the Commonwealth (see Note, § 38, “British ships”); the second is in sec. 51 x., which empowers the Federal Parliament to legislate as to “fisheries in Australian waters beyond territorial limits.” The legislative powers given by sec. 51—xxix., as to “external affairs,” and by sec. 51—xxxviii., as to powers previously exercisable by the

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Imperial Parliament or by the Federal Council, do not necessarily imply extra-territorial operation, and it is therefore submitted that they do not sanction any such operation.

“No State can by its laws directly affect, bind, or regulate property beyond its own territory, or control persons who do not reside within it, whether they be nativeborn subjects or not; a different system, which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them.” (Felix, Droit International Privè, s. 10.)

“The Legislature of a colony may authorize the exclusion from its territory of a person charged with an offence in another colony, or that he be punished unless he leaves the territory, or his detention; but it cannot authorize the sending him in custody out of its territory into another colony.” (Ray v. McMackin, 1 V.L.R. [L.], p. 272.)

“In Phillips v. Eyre, L.R. 6 Q.B., p. 1., it was distinctly enunciated that the superior Courts in England will regard Acts of colonial Legislatures in the same way as they regard Acts of foreign countries legislating with respect to their inhabitants within the limits of their authority. Any attempt to exercise jurisdiction beyond the boundaries of their own territory, domestic or distant, by either one or the other, is treated as being beyond the powers of their Legislatures.” (Per Barry, J., in Ray v. McMackin, 1 V.L.R. [L.], p. 280.)

“On Dec. 17, 1869, the Secretary of State for the Colonies notified the Governor-General of Canada, in regard to certain Acts passed by the Dominion Parliament in the previous session of Parliament, that Her Majesty would not be advised to exercise her power of disallowance with respect thereto; but that he observed that the third section of ‘an Act respecting perjury’ assumed to affix a criminal character to acts committed beyond the limits of the Dominion. ‘As such a provision is beyond the legislative power of the Canadian Parliament,’ the Colonial Secretary requested the Governor-General to bring this point to the notice of his Ministers, with a view to the amendment of the Act in this particular. Accordingly, in the ensuing session of the Dominion Parliament, an Act was passed to correct this error.” (Todd, Parl. Gov. in the Col., p. 145.)

The Criminal Law Amendment Act, 1883. sec. 54, of New South Wales, enacts that “whosoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years:” It was held by the Privy Council that those words must be intended to apply to persons actually within the jurisdiction of the Legislature, and consequently that the Courts of the colony had no jurisdiction to try the appellant for the offence of bigamy alleged to have been committed in the United States of America. (Macleod v. Att.-Gen. for New South Wales [1891], A.C. 455; Digest of English Case Law, vol. 3, p. 486.)

In the case of Re Victoria Steam Navigation Board, ex parte Allan, decided by the Full Court of Victoria. consisting of Stawell, C.J., and Stephen and Higinbotham, JJ., in 1881, the Court (Higinbotham. J., dissenting) were of the opinion that the Passengers, Harbours, and Navigation Statute, 1865, did not give the Steam Navigation Board any jurisdiction to enquire into charges of incompetency of a master. occurring at Cape Jaffa outside Victorian waters, and that the Imperial Merchant Shipping Act, 1854, sec. 242. sub-sec. 5, and Merchant Shipping Amendment Act, 1862, sec. 23, did not confer on it any extra-territorial jurisdiction. The summons to prohibit the enforcement of the suspension of a master's certificate was allowed, with costs. (Ex parte Allen 7 V.L.R. 248, 3 A.L.T., p. 1.) But now see Merchant Shipping Act, 1894, s. 478.

The British Parliament, being a sovereign legislature, may pass laws binding on its subjects all over the world; but, according to the principles of international law, it ought not to legislate for foreigners out of its dominions and beyond the jurisdiction of the Crown. (Lopez v. Burslem, 4 Moo. P.C., 300: the Zollverein, 1 Swab. Adm., 96.) The British Parliament has not, according to the principles of public law, any authority to legislate for fereign vessels on the high seas or for foreigners beyond the frontiers of the Empire. (Reg. v. Keyn, 2 Ex. D. 220.) Should the British Parliament in violation of those principles attempt to render foreigners subject to its laws with reference to offences committed beyond its territorial limits, it would be incumbent on the Courts of the Empire to enforce those enactments, leaving it to the Imperial Government to settle the question of international law with the governments of the nations concerned. But the laws of the Commonwealth being those of a subordinate and non-sovereign legislature would be examinable by the Courts, and if it appeared that they purported to legislate for matters outside the limits of the Commonwealth they would be pronounced ultra vires and null and void.

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TERRITORIAL WATERS.—Some further explanation of the rule of the “three mile limit” by Mr. Hall may be here added:—

“Of the marginal seas, and enclosed waters, which were regarded at the beginning of the present century as being susceptible of appropriation, the case of the first is the simplest. In claiming its marginal seas as property a state is able to satisfy the condition of valid appropriation, because a narrow belt of water along a coast can be effectively commanded from the coast itself either by guns or by means of a coast-guard. In fact also such a belt is always appropriated, because states reserve to their own subjects the enjoyment of its fisheries, or, in other words. take from it the natural products which it is capable of yielding. It may be added that, unless the right to exercise control were admitted, no sufficient security would exist for the lives and property of the subjects of the state upon land; they would be exposed without recognised means of redress to the intended or accidental effects of violence directed against themselves or other persons of whose nationality, in the absence of a right to pursue and capture, it would often be impossible to get proof, and whose state consequently could not be made responsible for their deeds. Accordingly, on the assumption that any part of the sea is susceptible of appropriation, no serious question can arise as to the existence of property in marginal waters. Their precise extent however is not so certain. Generally their limit is fixed at a marine league from the shore; but this distance was defined by the supposed range of a gun of position, and the effect of the recent increase in the power of artillery has not yet been taken into consideration, either as supplying a new measure of the space over which control may be efficiently exercised, or as enlarging that within which acts of violence way be dangerous to persons and property on shore. It may be doubted, in view of the very diverse opinions which have been held until lately as to the extent to which marginal seas may be appropriated, of the lateness of the time at which much more extensive claims have been fully abandoned, and of the absence of cases in which the breadth of territorial water has come into international question, whether the three mile limit has ever been unequivocally settled; but, in any case, as it has been determined, if determined at all, upon an assumption which has ceased to hold good, it would be pedantry to adhere to the rule in its present form; and perhaps it may be said without impropriety that a state has the right to extend its territorial waters from time to time at its will with the increased range of guns; though it would undoubtedly be more satisfactory that an arrangement upon the subject should be come to by common agreement.” (Hall's International Law, § 41.)

“Bluntschli thinks that, considering the range of modern artillery, the threemile zone is too narrow. Phillimore and Fiore express the same opinion, but think that an alteration can only be made by treaty. It appears to have been suggested by the American government to that of England in 1864 that territorial waters should be considered to extend to a distance of five miles from shore.” (Id.)