§ 40. “The Queen's Ships of War.”

Public ships of war are regarded as floating fortresses representing the sovereignty and independence of the country to which they belong. “A ship of war retains its national character with all its incidental privileges and immunities in whatever waters it may go, but if members of the crew leave the ship or its tenders, or its boats, they are liable to the territorial jurisdiction of the country into which they go. Even the captain is not considered to be individually exempt in respect of acts not done in his capacity as agent of his State. In his ship he is protected; he has entire freedom of movement; he is under no obligation to expose himself to the exercise of the jurisdiction of the country in whose ports, harbours, bays, rivers, or other territorial waters he may find himself; if he voluntarily does so he may be fairly expected to take the consequences of his acts.” (Hall's International Law [1895], p. 205.)

Although the extra-territoriality of a public ship does not extend to her officers and men whilst they are on shore in a foreign country, the territorial government often abandons cognizance and waives the punishment of offences committed by a public ship's company on shore to the government to which the ship belongs. (Rivier, Principes du Droit des Gens [1896], 1., 334–51.)


6. “The Commonwealth” shall mean42 the Commonwealth of Australia as established under this Act43.

“The States”44 shall mean such of the colonies46 of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the Northern Territory of South Australia, as for the time being

  ― 364 ―
are parts of the Commonwealth45, and such colonies or territories47 as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called “a State.”

“Original States” shall mean such States as are parts of the Commonwealth at its establishment.

HISTORICAL NOTE.—Clause 5 of the Commonwealth Bill of 1891 was as follows:—

“The term ‘The States’ shall be taken to mean such of the existing colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and the Province of South Australia, as for the time being form part of the Commonwealth, and such other States as may hereafter be admitted into the Commonwealth under the Constitution thereof, and each of such colonies so forming part of the Commonwealth shall be hereafter designated a State.”

At the Adelaide session, 1897, the clause was introduced and passed in the same words. (Conv. Deb., Adel., pp. 625–6). At the Sydney session, a suggestion made by the Legislative Council of New South Wales (where it had been originated by Mr. R. E. O'Connor) to define “Original States” and “New States,” was discussed; and ultimately the definition of “Original States” was agreed to. On Mr. Solomon's motion, the words “including the Northern Territory of South Australia” were agreed to. (Conv. Deb., Syd. [1897] pp. 231–9, 986–7.) At the Melbourne session, drafting amendments were made before the first report; and also after the fourth report, when the words “ ‘Colony’ shall mean any colony or province” were added.

In the Bill as introduced in the Imperial Parliament, the following words were added to the definition of Commonwealth:—“and the laws of the Commonwealth shall be colonial laws within the meaning of the Colonial Laws Validity Act, 1865.” In Committee, these words were omitted, and the words “ ‘Colony’ shall mean any colony or province”—which it was thought might raise a doubt as to the application of the Colonial Laws Validity Act—were also omitted. (See pp. 222–248, 351–2, supra.)