§ 174 “Australian Waters Beyond Territorial Limits.”

The sub-section, as originally drawn by the Constitutional Committee of the Convention, contained words conferring jurisdiction over “fisheries in rivers which flow through or in two or more States.” The representatives of New South Wales objected to the power in that form, on the ground that it would enable the Parliament to interfere in matters of purely local concern, which could be more efficiently and economically supervised by the State authorities. The words objected to were struck out, and the States were accordingly allowed to retain the control of fisheries within their territorial limits, whilst the Federal Parliament was assigned jurisdiction over fisheries in Australian waters beyond the three-mile limit. This is a somewhat remarkable instance of the intended extra-territorial operation of some of the laws of the Commonwealth.

Weighty reasons were advanced in the Convention, both for and against the retention of the words “Australian waters beyond territorial limits.” In opposition to the words reference was made to the vagueness of the expression “Australian waters.”

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Mr. Kingston thought it important that some definition of the term “Australian waters” should be inserted. “I do not know,” he said, “if the hon. and learned member, Mr. Barton, is satisfied in his own mind as to what meaning would be attached to the term. I think that there was some provision in connection with the Federal Council by which, under an Imperial order, these waters were defined; and legislation was adopted by the colony of Western Australia and Queensland in the exercise of powers conferred on the Council in regard to those matters. The clause applies only to matters beyond territorial limits, which increases the difficulty.” (Conv. Deb., Syd., 1897, p. 1073.)

In the absence of a definition, it was said, complicated questions might arise in practice as to how far from the Australian coast “Australian waters” might be deemed to extend, and whether at a given time a fishing boat was within those waters. More important still was the innovating proposal to give the Federal Parliament power to legislate respecting fisheries beyond its territorial limits. Outside those limits the ocean was the highway of all nations, and no country could claim to exercise exclusive jurisdiction over the high seas. It was not conceivable that any law affecting fisheries outside the territorial limit would be legally operative. It was not sufficient to say that the Imperial Parliament would give the Commonwealth power to legislate in respect of matters occurring beyond those limits. The Imperial Parliament could not effectively grant the Commonwealth a power which, according to the law of nations, it did not possess. Suppose the Federal Parliament passed such a law, and the captain and crew of a foreign ship violated it, in contempt and defiance of the Commonwealth, would not the law in that case be made a laughing stock? Then, again, the power as it stood in the sub-section recognized two legislative authorities, with respect to fisheries, one within, and the other beyond the three-mile limit. This might lead to a clashing of State regulations with Federal regulations. The boundary line between State jurisdiction and Federal jurisdiction would be vague and not capable of easy and satisfactory delimitation. Persons engaged in the fishing trade might very often be unable to say whether they were liable to and bound to obey State laws or Federal laws. A vessel engaged in trawling should not be under one set of laws when fishing close to the coast, and under another set when compelled to go further out to sea in order to find fish. Rather than risk such doubt and possible conflict it might be advisable to omit the sub-section altogether and allow the fishing trade to be governed by the laws relating to trade and commerce, or by the laws relating to navigation and shipping, which were within the competence of the Federal Parliament. Such laws would enable the Federal authorities to issue fishing licenses and attach all necessary and proper conditions, and such a course would meet all the requirements of the case. (Mr. E. Barton, Conv. Deb., Melb., pp. 1857–8–9.)

The arguments in support of retaining the words admitted the difficulties pointed out, but claimed that there were powerful considerations which more than outweighed those difficulties. In the first place this was by no means a new and untried grant of power. By section 15 (c) of the Federal Council of Australasia Act (48 and 49 Vic. c. 60), power was given to that body to legislate in respect of “fisheries beyond territorial limits”—the identical words used in this sub-section; the only condition to the exercise of its jurisdiction being (1) that its laws should be enforced only in colonies which had adopted the Act and which were represented in the Council, and (2) that proposed laws relating to sec. 15 (c) should be reserved for the signification of Her Majesty's pleasure. This had not remained a dormant power, but had been exercised.

In January, 1888, the Federal Council passed an Act to regulate pearl-shell and beche-de-mer fisheries in Australasian waters, adjacent to the colony of Queensland. The preamble recited:

“Whereas, by certain Acts of the Parliament of the colony of Queensland, provision has been made for regulating the pearl-shell and beche-de-mer fisheries in the territorial waters of that colony; and whereas, by reason of the geographical position of many of

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the islands forming portion of that colony, vessels employed in such fisheries are, in the prosecution of their business, sometimes beyond the territorial jurisdiction of Queensland; and whereas it is expedient that the provisions of the said Acts should extend and apply to such vessels during all the time they are so employed, and that for that purpose the provisions of the said Act, so far as they are applicable to extra-territorial waters, should be extended to such waters by an Act of the Federal Council of Australasia.”

The Act contained provisions to regulate the pearl-shell and beche-de-mer fisheries in Australasian waters adjacent to the colony of Queensland. Such waters were defined as being within the following limits:—

“All waters within a line drawn from Sandy Cape northwards to the south-eastern limit of the Great Barrier Reef; thence following the line of the Great Barrier Reef to their north-eastern extremity near the latitude of 9½° south: thence in a north-westerly direction embracing East Anchor and Bramble Cay; thence from Bramble Cay in a line west by south (south 79° west true) embracing Warrior Reef, Saibai and Tuan Island; thence diverging in a north-westerly direction so as to embrace the group known as the Talbot islands; thence to and embracing the Deliverance island and on in a west by southern direction (true) to the meridian of 138° of east longitude; and thence by that meridian southerly to the shore of Queensland.”

This Act was reserved for the Royal assent, which was proclaimed on 19th July, 1888. In February, 1889, the Federal Council passed an Act to regulate the pearl-shell and beche-de-mer fisheries in Australasian waters adjacent to the colony of Western Australia. It contained provisions substantially similar to those of the Queensland Act. The extra-territorial waters, within which it was declared to be in force, were defined in the schedule as follows:

“A parallelogram of which the north-western corner is in longitude 112° 15' east and latitude 13° 30' south; of which the north-eastern corner is in longitude 129° east and latitude 30° 30'; and of which the south-west corner is in longitude 112° 52' east and latitude 35° 8' south; and of which the south-eastern corner is longitude 129° east and latitude 35° 8' south.”

Both the Queensland and West Australian Acts are remarkable for the stringency of their provisions relating to the employment of coloured labour, showing that “laws with respect to fisheries” are capable of comprehending regulations controlling the employment of labour used in connection with fisheries. These Acts are still in force, their operation being preserved by clause 7 of the Commonwealth Constitution Act. Thus, it was pointed out, extra-territorial laws relating to fisheries had been already sanctioned by the Imperial Government, and enforced by the Governments of the two colonies over a wide expanse of ocean, the boundaries of which were defined within parallels of latitude and degrees of longitude. The pearl-shell and beche-de-mer trade had been regulated; the fisheries had been protected; fees had been collected; labour had been supervised, and everything expected and desired had been obtained. Here, therefore, they had an illustration of the practicability of the grant of power contemplated. Having received such a grant in the Federal Council Act, it would not be wise for Australia to surrender it by omitting a similar enabling provision from the Constitution of the Commonwealth. The power should appear on the face of the Constitution; they ought not to trust any implication hidden away in other clauses.

The practical arguments were strengthened by broader and more patriotic considerations. Such spheres of influence and control as had been already granted by the Imperial Parliament to the Federal Council should be reserved for and transferred to the Commonwealth. The people of such a continent as Australia, unique in its isolation and configuration, should have the right of control over waters outside the ordinary territorial limits. We should begin our career as a Commonwealth by mapping out a sphere of influence, and of commercial trading operations, all round the continent, and for some considerable distance from the coast. Within that sphere the Commonwealth would represent and protect, not merely Australian interests, but Imperial interests. We were taking over general powers from the States and from the Federal Council, and those powers should be accepted undiminished, and maintained unimpaired, without abandon-punishing

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one jot or yielding one tittle of what had been acquired by the labours and triumphs of the pioneers of Australian progress. (See speeches of Mr. C. C. Kingston, Sir John Forrest, Mr. A. Deakin, and Mr. R. E. O'Connor. Conv. Deb., Melb., pp. 1861-3 and 1872.

51. (xi.) Census175 and statistics:

HISTORICAL NOTE.—Sec. 91 of the British North America Act specifies “The census and statistics.” (Subs. 6.) The sub-clause “Census and statistics” was in the Commonwealth Bill of 1891, and was adopted by the Convention of 1897-8 without debate.