§ 199. “Within the Limits of the Commonwealth.”
This is a notable expression, affirmative of the territoriality of the Commonwealth, and recognizing the principle that, as a general rule, the laws of a sovereign State or of a semi-sovereign community are intended to be operative and enforceable only within its territorial limits. The words, “formed within the limits of the Commonwealth,” are, apparently, words of description rather than words of limitation, seeing that even without any express restriction the laws of the Commonwealth could only operate within and throughout the Commonwealth. Only express words would justify any interpretation giving an extra-territorial effect. One instance of such express words is found in Clause V.,
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which enacts that the laws of the Commonwealth shall be “in force an all British ships” whose first port of clearance and whose port of destination are within the Commonwealth. Another instance is found in section 51—x., “Fisheries in Australian waters beyond territorial limits.”
51. (xxi.) Marriage200:
HISTORICAL NOTE.—“Marriage and divorce” is specified in the British North America Act, sec. 91, sub-sec. 26. “Recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony” was a subject which might be referred to the Federal Council under the Act of 1885. In the Bill of 1891, and also in the Adelaide draft of 1897, “Marriage and divorce” was one of the legislative powers.
At the Sydney session, a suggestion by the House of Assembly of Tasmania was submitted, to omit the sub-clause and substitute “The status, in other States of the Commonwealth, of persons married or divorced in any State.” Mr. Glynn said that there were strong objections in South Australia to the prospect of the grounds of divorce in that colony being extended as they had been in New South Wales and Victoria. The sense of the desirability of uniform laws of marriage and divorce prevailed, however, and the sub-clause was agreed to. (Conv. Deb., Syd., 1897, pp. 1077–82.) At the Melbourne session, before the first report, “Marriage” was placed in a separate sub-clause.