Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development

BATHURST CJ: I have had the advantage of reading the judgment of Basten JA in draft. I agree with the orders proposed by his Honour. These are my reasons for doing so.

Basten JA has set out the underlying circumstances giving rise to these proceedings. The gravamen of the applicants’ case in this Court was that their convictions of various offences in the Local Court of New South Wales were affected by jurisdictional error and should be set aside, primarily due to the invalidity, for one reason or another, of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW).

The two offences of which Mr Ralph Lavender was convicted both involved threatening a fisheries officer contrary to s 247(2) of the Fisheries Management Act 1994 (NSW) (the NSW Fisheries Act). The first offence was committed at Hanging Rock Boat Ramp at Batemans Bay and the second offence was committed at a boat ramp on Lake Illawarra, south of Wollongong. Section 247 is in the following terms:

The two offences of which Mr Jack Lavender was convicted were contraventions of cl 30(1) and cl 30(4) of the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) (the NSW Abalone Regulation) contrary to cl 38 of that Regulation. As in force at the relevant time for these proceedings, those clauses of the NSW Abalone Regulation provided as follows:

It seems clear that, if the NSW Abalone Regulation were invalid in its entirety, the convictions for offences of contravening that Regulation would be affected by jurisdictional error. However, it is more difficult to see how the same could be said of the convictions for the offences against s 247(2) of the NSW Fisheries Act. Even if that Act were somehow found to be limited in its operation to areas within the limits of New South Wales, it is by no means clear that the threats which were the subject of the offences were made at the time that the fisheries officers “were carrying out functions related to the enforcement of State law in waters seaward of the mean low water mark”, as Basten JA has pointed out.

Further, it seems to be contended by the applicants that, in any event, the threats were not made while the fisheries officers were “carrying out the functions” of a fisheries officer. The basis for this submission is obscure, but it seems to involve the proposition that, because the NSW Abalone Regulation was claimed to be invalid, fisheries officers who were investigating contraventions of that Regulation at the time of the threat were not “carrying out the functions” of a fisheries officer. That proposition is doubtful, but the respondents were content to rely on their submission that the NSW Abalone Regulation was in fact valid.

To understand the issues in contention between the parties, it is necessary to have regard to the background and legislative history of fisheries regulation in Australia. It is only necessary for me to mention the major features since they have been set out at length by Basten JA.

In 1973, the Commonwealth Parliament enacted the Seas and Submerged Lands Act 1973 (Cth). Section 6 of that Act stated that “sovereignty in respect of the territorial sea” was “vested in and exercisable by the Crown in right of the Commonwealth”. The phrase “territorial sea” was undefined in the Act as enacted, but is currently defined to have the same meaning as it does in Articles 3 and 4 of the United Nations Convention on the Law of the Sea.

Article 3 of the Convention empowers a State to “establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention”. At the relevant times for these proceedings, the outer limit of the territorial sea of Australia was defined as 12 nautical miles from the relevant baselines by a proclamation made by the Governor-General on 9 November 1990 pursuant to s 7(1) of the Act.

Section 10 of the Act provided as follows:

Section 14 of the Act contained a savings provision to the following effect:

As it presently appears in the Act, s 16 is in the following terms:

The constitutional validity of the Seas and Submerged Lands Act 1973 (Cth) was upheld by a majority of the High Court in New South Wales v Commonwealth (1975) 135 CLR 337; [1975] HCA 58 (Seas and Submerged Lands Case). In that case, Mason J (as his Honour then was) described the operation of s 10 and s 14 as “not without its difficulty” at 476. He stated that, apart from the operation of s 14, s 10 “might be seen as an attempt to vest in the Commonwealth sovereign rights in inland waters lying within State boundaries”, where the phrase “inland waters” was to be understood as confined to “waters of the sea”. Even then, he explained that there would be “waters below the low-water mark which are on the landward side of the baselines of the territorial sea”. He stated that these waters stood “outside State boundaries” and would fall within s 10. However, he said that s 14 was 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”. Jacobs J reached a similar conclusion at 479.

In subsequent cases involving the Seas and Submerged Lands Act 1973 (Cth), the High Court made it clear that the vesting of “sovereignty in respect of the territorial sea” in the Crown in right of the Commonwealth did not operate to deprive the State of its power to pass extra-territorial legislation, although it might give rise to inconsistency within the meaning of s 109 of the Constitution.

In Pearce v Florenca (1976) 135 CLR 507; [1976] HCA 26 (Pearce v Florenca), the defendant was charged with a contravention of a provision of the Fisheries Act 1905 (WA) which the High Court found made it an offence for a person to have undersized fish of a specified kind on a boat at sea at a distance between one and a half and two miles from the coast of Western Australia. Gibbs J stated at 518-519 that, on the assumption that the Fisheries Act 1905 (WA) was correctly described as “extra-territorial”, he accepted “the views expressed by Mason J in the Seas and Submerged Lands Case, that the power [of a colony] to make laws for the peace, order and good government of the colony was large enough to enable the colonial legislatures to enact legislation which applied to the off-shore waters”, and that the “same is true now of State legislatures”. He also stated that the “very fact that the waters are the off-shore waters of the State” provided the “necessary nexus” to render such a law valid. Similar comments were made by Mason J at 522 and Jacobs J at 526. See also Bonser v La Macchia (1969) 122 CLR 177; [1969] HCA 31.

In Robinson v Western Australian Museum (1977) 138 CLR 283; [1977] HCA 46, the power of a State to enact legislation having an extra-territorial operation was again affirmed by three members of the High Court: see Barwick CJ at 294-295; Gibbs J at 304; Mason J at 331. A majority, however, found the Western Australian legislation in that case to be invalid or inoperative. Barwick CJ found that it was invalid on the ground that there was no sufficient connection with the State for the legislation to be for the “peace, order and good government” of the State and Jacobs J found that the legislation was inoperative by reason of inconsistency with Part VII of the Navigation Act 1912 (Cth). Murphy J found that the legislation would have been invalid or inoperative on either ground.

These cases establish that, notwithstanding the passage of the Seas and Submerged Lands Act 1973 (Cth), a State has the power to enact legislation having an extra-territorial operation, including over the territorial sea of Australia, despite vesting of the “sovereignty” over the territorial sea in the Commonwealth. This is provided that the legislation had a sufficient connection with the “peace, order and good government” of the State and is not inconsistent with any Commonwealth legislation, including the Seas and Submerged Lands Act 1973 (Cth) itself.

In 1980, as part of the “Offshore Constitutional Settlement” to remove any remaining doubts about the validity of State legislation, the Commonwealth passed the Coastal Waters (State Powers) Act 1980 (Cth) (the State Powers Act) and the Coastal Waters (State Title) Act 1980 (Cth) (the State Title Act). It is unnecessary to deal with the provisions of the State Title Act for the purpose of this judgment, although it is necessary to briefly refer to the provisions of the State Powers Act.

The State Powers Act conferred express legislative power on the States in respect of its “coastal waters”, which include “the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of the State”, subject to the limitations referred to in s 4(2), which limited the “coastal waters” to a breadth of 3 nautical miles if the territorial sea of Australia was greater than 3 nautical miles. Section 5(c) extended the operation of laws of a State with respect to fisheries in respect of which an arrangement had been made with the Commonwealth for the fishery to be managed in accordance with the laws of the State. It was in the following terms:

There was a savings provision in s 7(b) of the State Powers Act expressly providing that the Act should not be taken to “derogate from any power existing, apart from this Act, to make laws of a State having extra-territorial effect”. It should also be noted that s 7(a) provided that the Act should not be taken to “extend the limits of any State”.

At the same time that the State Powers Act was enacted, the Fisheries Amendment Act 1980 (Cth) inserted Part IVA into the Fisheries Act 1952 (Cth). Section 12H(4), so far as is presently relevant, was in the following terms at the time that it was introduced:

In Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; [1989] HCA 49 (Port MacDonnell), the High Court held that a “wedge-shaped” area of sea did not form part of “waters adjacent to” South Australia for the purpose of s 12H(4) of the Fisheries Act 1952 (Cth). The “wedge-shaped” area formed part of a rock lobster fishery defined in an arrangement between the Commonwealth and South Australia for the purpose of s 12H(4). Section 14 of the Fisheries Act 1982 (SA) made the provisions of that Act applicable to a fishery which was the subject of an arrangement with the Commonwealth that stated that it was to be managed in accordance with the laws of the State. The Fisheries Act 1982 (SA) provided for the licensing of rock lobster fishermen.

The Court held at 367-368 that the arrangement between the Commonwealth and South Australia was valid, although its operation was confined by reference to the fixed boundary line separating the waters adjacent to South Australia from those adjacent to Victoria defined in schedule 2 of the Petroleum (Submerged Lands) Act 1967 (Cth), and therefore did not include the “wedge-shaped” area which was on the side of the boundary line adjacent to Victoria.

The Court also held that the South Australian legislature had power to pass s 14 of the Fisheries Act 1982 (SA) without relying on s 5(c) of the State Powers Act. Referring to Bonser v La Macchia (1969) 122 CLR 177; [1969] HCA 31 and Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1 at 14; [1988] HCA 55, the Court concluded at 369-373 that s 14 had a sufficient connection with the “peace, order and good government” of the State. The Court made the following remarks at 373 which are of relevance in the present case:

In Harper v Minister for Sea Fisheries (1989) 168 CLR 314; [1989] HCA 47 (Harper), the High Court considered whether a fee payable for a licence to fish for abalone imposed pursuant to regulation 17A of the Sea Fisheries Regulations 1962 (Tas) was a “duty of excise” for the purpose of s 90 of the Constitution. The Court held that it was not. Mason CJ, Deane and Gaudron JJ dealt with the basis of the fee at 325 in the following terms:

In 1983, the Fisheries and Oyster Farms Act 1935 (NSW) was amended by the insertion of Part 1A, which provided for the “Commonwealth-State Management of Fisheries”. Section 4H(1) stated that “the State may, in accordance with s 12J of the [Fisheries Act 1952 (Cth)], make an arrangement referred to in s 12H of that Act for the management of a particular fishery”. As is apparent, this is the State legislative provision which corresponds to s 12H of the Fisheries Act 1952 (Cth).

On 25 July 1990, the Commonwealth and New South Wales entered into an arrangement in respect to what was described as a “mollusc fishery” (the 1990 Arrangement). Clause 3 of the 1990 Arrangement provided that the fishery was to be managed in accordance with the laws of New South Wales. Clause 1 of the 1990 Arrangement defined the fishery in the following manner:

It was not in contest in these proceedings that abalone were “molluscs”: see also Harper at 325-326. The Schedule to the 1990 Arrangement described the following area of waters:

The area described by the Schedule extends beyond the “coastal waters” of New South Wales as defined by the State Powers Act but is within the “exclusive economic zone adjacent to the coast of Australia” defined under s 10B of the Seas and Submerged Lands Act 1973 (Cth).

In 1991, the Fisheries Management Act 1991 (Cth) (the Cth Fisheries Act) was enacted, and remained in force at the times relevant for these proceedings. Section 7(2) of the Act states that it applies “in relation to the AFZ and to fishing for sedentary organisms outside the AFZ” to “all persons, including foreign persons, and to all boats, including foreign boats”. Section 4(1) of the Act defines “AFZ” to mean the “Australian Fishing Zone”, which is itself defined by reference to the “waters adjacent to Australia” within the “outer limits of the exclusive economic zone adjacent to the coast of Australia”, excluding “coastal waters of, or waters within the limits of, a State”.

The “outer limits of the exclusive economic zone adjacent to the coast of Australia” are generally 200 nautical miles from the baselines of the territorial sea. The “coastal waters of a State” are defined in s 5 of the Act as “the part or parts of the territorial sea of Australia that are … within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law” and that are “adjacent to the State”. This definition is substantially similar to that in the State Powers Act. Therefore, the effect of s 7(2) is that the Cth Fisheries Act does not apply in the “coastal waters of a State” subject to an exception in s 10.

Section 10 of the Cth Fisheries Act deals with the interaction between the Act and State and Territory laws. It provides as follows:

Before explaining the operation of the relevant part of s 10, it is necessary to note Part 5 of the Cth Fisheries Act, which deals with “Co-operation with the States and Northern Territory in management of fisheries”. It is in substantially similar terms to Part IVA which was inserted into the Fisheries Act 1952 (Cth) in 1980. Section 71 of the Cth Fisheries Act provides for arrangements to be made for fisheries to be managed in accordance with the law of the Commonwealth, the law of the State or both in terms similar to s 12H. Section 74 sets out how such arrangements are to be made. Section 76 of the Cth Fisheries Act and its predecessor, s 12K of the Fisheries Act 1952 (Cth), relate to arrangements in which a fishery is to be managed in accordance with Commonwealth law.

Returning to s 10, the relevant provision for present purposes is s 10(2)(b). I have referred to the definition of “AFZ” and “coastal waters” at [30]-[31] above. Therefore, s 10(2)(b) extends the operation of the Cth Fisheries Act beyond the scope of s 7(2) to the “coastal waters of a State” where a fishery in respect of such waters is to be managed in accordance with Commonwealth law pursuant to an arrangement with that State.

Finally, s 77 of the Cth Fisheries Act provides as follows:

At the same time as the Cth Fisheries Act was enacted, the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth) was enacted. Section 3(2) of this Act repealed the Fisheries Act 1952 (Cth), except for Part IVA, which included s 12H, with effect from 3 February 1992. Part IVA was repealed on 3 February 1995 by s 7(3). Section 7(4)(b) of the Act provided that “any arrangement made with a State or Territory under subsection 12H(1) or (4) of the Fisheries Act 1952 that was in force immediately before [the repeal of Part IVA] continues in force as if it had been made under Part 5 of the [Cth Fisheries Act]”. The 1990 Arrangement was thus continued in force under Part 5 of the Cth Fisheries Act after the repeal of Part IVA of the Fisheries Act 1952 (Cth).

In 1994, the NSW Fisheries Act was enacted. The objects of the NSW Fisheries Act are set out in s 3. So far as it is relevant, that section provides as follows:

Section 6 defines “fishery”. It is in the following terms:

Section 7 is of particular relevance to the present case. It provides as follows:

Before discussing s 7 in more detail, it is necessary to note that Part 5 of the NSW Fisheries Act is substantially equivalent to Part 5 of the Cth Fisheries Act. Section 135 empowers the State, in accordance with s 74 of the Cth Fisheries Act, to make an arrangement with respect to fisheries in the nature of that referred to in s 71 of the Cth Fisheries Act, while s 136 provides that, if a particular fishery is “to be managed in accordance with the law of the State”, the provisions of the NSW Fisheries Act apply to that fishery, subject to immaterial exceptions.

Section 7(1)(a) deals with waters “within the limits of the State”. Sections 7(1)(b) and 7(1)(c) deal with waters outside the “limits of the State”. Section 7(1)(b) applies the Act to “any waters of the sea not within the limits of the State that are on the landward side of waters adjacent to the State that are within the Australian fishing zone”, except for “purposes relating to” fisheries managed in accordance with the law of the Commonwealth pursuant to an arrangement under Division 3 of Part 5 of the NSW Fisheries Act and except for the purposes prescribed in s 7(1)(d).

Section 7(1)(c), by contrast, deals specifically with fisheries managed in accordance with the law of the State under an arrangement under Division 3 of Part 5 of the NSW Fisheries Act. It extends the application of the Act beyond the “coastal waters” of New South Wales to “any waters to which the legislative powers of the State extend with respect to that fishery”.

Section 42 provides for the declaration of “share management fisheries”. It is in the following terms:

On 15 February 1995, the Governor of New South Wales made a proclamation pursuant to s 42(2) which added the description of an “abalone fishery” to Schedule 1 of the Act. Clause 4 of Schedule 1 now defines the “abalone fishery” as consisting of abalone of the species Haliotis rubra “taken by any method from any waters”.

In 2000, the NSW Abalone Regulation was made. The Appendix to that Regulation contained the “Abalone Share Management Plan”, which was made in relation to the “abalone fishery” described in Schedule 1 of the NSW Fisheries Act. The power to make the NSW Abalone Regulation is to be found in s 60 of the NSW Fisheries Act which provides for the making of such a management plan by regulation.

Clause 3 of the Plan set out its objectives. The objectives included promoting “commercial fishing practices for abalone that do not adversely impact on the broader ecosystem”, maintaining or increasing “the biomass of mature and legal size abalone”, and ensuring that “the fishery remains economically viable”. I have set out the relevant portions of cl 30 and cl 38 of the NSW Abalone Regulation at [4] above.

As Basten JA has pointed out, it is difficult to ascertain with any clarity the basis for alleging that the convictions were affected by jurisdictional error from either the amended summons or the written or oral submissions. However, the applicants’ case seems to amount to three propositions.

The first proposition which seems to be put is that the NSW Fisheries Act did not authorise the making of the NSW Abalone Regulation and that the Regulation was therefore invalid in its entirety. Counsel for the applicants seemed to submit that there was no power to make regulations under the NSW Fisheries Act in relation to fisheries for molluscs, such as abalone, which did not conform to the 1990 Arrangement.

Counsel for the applicants also submitted that the NSW Abalone Regulation was invalid because it infringed the “sovereignty” of the Commonwealth over the territorial sea because it permitted the “exploitation” of abalone on the seabed which, he submitted, were to be treated like “minerals over the floor of the ocean” because they were a “sedentary species” or organism. He submitted that the NSW Abalone Regulation could only permit an exercise of “sovereignty” over the territorial sea if it was “authorised” by the Commonwealth, such as by conforming to the terms of the 1990 Arrangement which provided for particular fisheries to be managed in accordance with the laws of New South Wales.

Counsel for the applicants submitted that the 1990 Arrangement defined the “mollusc fishery” by reference to certain methods of taking molluscs which fell within a specified area of water. By contrast, he submitted that the NSW Abalone Regulation referred to abalone “taken by any method from any waters”. He submitted that, even if the phrase “any waters” could be read down so as to conform to the 1990 Arrangement, there remained a disparity between the Arrangement and the Regulation in the permitted methods of taking abalone.

The NSW Abalone Regulation was made pursuant to the power in s 60 of the NSW Fisheries Act to which I have referred above. It related to the “abalone fishery” referred to in Schedule 1 of the Act.

The applicants’ submission, stripped to its essentials, was that the NSW Abalone Regulation was invalid because it related to an abalone fishery which was defined by reference to “any waters”, and second, by reference to “taking by any method”. It was submitted that it was contrary to the 1990 Arrangement to make a regulation in relation to a fishery referred to in that Arrangement which was defined by reference to these two criteria. There are a number of insurmountable difficulties with this submission.

First, it is well-established that a State’s legislative power extends to the passage of extra-territorial legislation, including legislation relating to fisheries and fishing: Pearce v Florenca at 518-519; Port MacDonnell at 373; Babington v Commonwealth (2016) 240 FCR 495; [2016] FCAFC 45 at [35], [39]. As was pointed out by the Full Court of the Federal Court in the latter case, whatever debate there was concerning that issue was settled by s 2(1) of the Australia Act 1986 (Cth).

Second, the phrase “any waters” in Schedule 1 to the NSW Fisheries Act is to be read down by s 7(3) of the Act to apply extra-territorially only insofar as the legislative powers of the State permit. Further, it would be operative only to the extent that it is not inconsistent with any law of the Commonwealth under s 109 of the Constitution.

Third, and subject always to those limitations, to the extent that the NSW Abalone Regulation related to fishing activities which were included in a fishery or part of a fishery that was to be “managed in accordance with the law of the State pursuant to an arrangement under Division 3 of Part 5” of the NSW Fisheries Act, the Regulation would apply to “any waters to which the legislative powers of the State extend with respect to that fishery” by virtue of s 7(1)(c).

In that regard, it must be remembered that s 77 of the Cth Fisheries Act precludes that Act from operating where there is an arrangement in respect of a fishery or part of a fishery to be “managed in accordance with the laws of the State”, subject to irrelevant exceptions. This means that, to the extent that the NSW Abalone Regulation is supported by s 7(1)(c), there is no possibility of inconsistency with the Cth Fisheries Act for the purpose of s 109 of the Constitution.

Fourth, to the extent that the NSW Abalone Regulation related to fishing activities which were not included in a fishery or part of a fishery for which such an arrangement was in place, s 7(1)(b) would limit the application of the Regulation to “any waters of the sea … that are on the landward side of waters adjacent to the State that are within the Australian fishing zone”.

In the present case, the result is that, to the extent that the fishing activities covered by the NSW Abalone Regulation are included in the “mollusc fishery” which is the subject of the 1990 Arrangement, the waters to which the Regulation would apply would be those referred to in s 7(1)(c) of the NSW Fisheries Act. Regulating the taking of abalone in that area in pursuance of the objects referred to in cl 3 of the Plan, in my opinion, is legislation which has a sufficient connection with the “peace, order and good government” of New South Wales. This conclusion is consistent with the passages in Port MacDonnell and Harper which I have set out at [24]-[25] above.

However, as may be seen from the extract from the 1990 Arrangement at [27] above, the definition of the “mollusc fishery” in the 1990 Arrangement excludes, in one area of the fishery, molluscs taken by “trawling”, and in the balance, molluscs taken by “trawling or Danish seining”. The former area could broadly be described as the “northern portion” of the fishery and the latter area as the “southern portion”. To the extent that the NSW Abalone Regulation does cover these fishing activities excluded from the “mollusc fishery” defined in the 1990 Arrangement, it covers fishing activities which are not included in the “mollusc fishery” defined in the 1990 Arrangement.

Even if it could be said that, in those circumstances, the NSW Abalone Regulation covered the capture of abalone by certain methods in particular areas which were not included in the “mollusc fishery” defined in the 1990 Arrangement, s 7(3) of the NSW Fisheries Act would apply and the State would be entitled to legislate in respect of such activities to the extent necessary for the “peace, order and good government” of New South Wales in the area defined by s 7(1)(b). The fact that an arrangement has not been made with the Commonwealth in respect of such activities is immaterial provided that there is no inconsistent Commonwealth legislation which would render the NSW Abalone Regulation inoperative to the extent of the inconsistency. Apart from the Seas and Submerged Lands Act 1973 (Cth), which is dealt with in relation to the applicants’ second proposition and which I consider has not been made out, no such legislation was identified by the applicants.

Finally, whatever else might be the case, the Cth Fisheries Act only applies in the “coastal waters” of New South Wales where an arrangement has been entered into with the State for a fishery or part of a fishery in those waters to be “managed in accordance with the law of the Commonwealth”. In the present case, the activities complained of took place within coastal waters (if not internal or inland waters) and the Cth Fisheries Act has no application so as to give rise to any potential inconsistency for the purpose of s 109 of the Constitution.

It follows that the first proposition has not been made out.

The second proposition seems to be that the NSW Fisheries Act and the NSW Abalone Regulation were inconsistent with the Seas and Submerged Lands Act 1973 (Cth) as well as the Cth Fisheries Act, and that neither the State Title Act, the State Powers Act, nor s 16 of the Seas and Submerged Lands Act 1973 (Cth) were capable of affecting this conclusion because each of the former two Acts and s 16 of the Seas and Submerged Lands Act 1973 (Cth) extended the limits of New South Wales contrary to s 123 of the Constitution. Basten JA has dealt with this proposition at [176]-[194] of his judgment. For the reasons given by him, with which I respectfully agree, this proposition has not been made out.

The third proposition is that the NSW Fisheries Act and the NSW Abalone Regulation themselves “altered” the limits of New South Wales contrary to s 123 of the Constitution because they permitted interference with the “sovereignty” of the Commonwealth over the territorial sea because abalone were analogous to “minerals” on the sea floor since they were “sedentary organisms”.

For the reasons given by Basten JA, this submission cannot be sustained. I would only add to the authorities cited by Basten JA at [197]-[199] of his judgment the decision in Ex parte Emerson (1898) 15 WN (NSW) 101 at 102, where it was stated that oysters, which are sedentary, were “in the same position as game or fish, which the law regards as ferae naturae”, and the decision of the House of Lords in Lord Provost and Magistrates of Glasgow v Farie (1888) 13 App Cas 657 at 689, where Lord Macnaghten described the word “mineral” as including “every inorganic substance forming part of the crust of the earth other than the layer of soil which sustains vegetable life”.

For these reasons, I agree with the orders proposed by Basten JA.

BEAZLEY P: I have had the advantage of reading in draft the reasons of the Chief Justice and Basten JA. In doing so, I have had careful regard to the relevant legislative schemes and to the case sought to be made by the applicants.

As will be apparent from the respective judgments of their Honours, they have identified the issues in slightly different ways. I am satisfied that there is no difference of substance in the two judgments and I agree with their Honours’ respective reasons and with the orders proposed by Basten JA.

BASTEN JA:

Pursuant to an amended summons filed in the supervisory jurisdiction of the Court, the two applicants seek to review for jurisdictional error a decision of the District Court in its criminal jurisdiction. The judgment of the District Court, Ralph Lavender and Jack Damien Lavender v Director of Fisheries Compliance, [1] delivered on 1 September 2017 by Judge Haesler SC, dismissed appeals by each applicant from convictions imposed in the Local Court.

The underlying convictions were as follows:

The notices of appeal to the District Court were not contained in the materials before this Court, but the appeals were described by Judge Haesler as being “on all grounds”. [4] Nevertheless, it is apparent from his judgment that the facts were not in dispute, nor was the application of the relevant provisions of the State legislation, if valid. The submissions before the District Court judge were limited to challenges to the constitutional validity of the State legislation.

The same approach was adopted in this Court; the applicants sought declarations that:

The applicants also sought a declaration that “officers of the Department of Industry Skills and Regional Development were not authorised persons under the Fisheries Management Act 1994, s 243(1) and for the purposes of s 247(2)”. [5] No such case was run in the District Court, but the fact that the relief was sought with respect to all members of the relevant Department, rather than the investigators or prosecuting officers responsible for the charges, suggested that it was the validity of s 243(1) of the State Act which was in issue. No specific argument was directed to that provision and the relief sought in that regard should be refused.

It was apparent from the declarations sought with respect to the legislation that the primary case being run for the applicants turned on the operation of the State laws beyond the limits of New South Wales, which was understood to mean beyond the mean low water mark.

Although the parties invited the Court to rule on the constitutional validity of the legislation referred to above, that invitation should not be accepted unless it is necessary to do so in order to dispose of the proceedings the subject of the District Court judgment. As the High Court stated in ICM Agriculture Pty Ltd v The Commonwealth, [6] “constitutional questions should not be decided unless it is necessary ‘to do justice in the given case and to determine the rights of the parties’.” This Court follows the same principle. [7] In the present case, there is a real doubt as to the necessity to address some, if not all, of the constitutional questions raised by the applicants. To explain why that is so it is necessary first to address the basis of the convictions.

Two of the four charges involved threats to fisheries officers. The conduct occurred on land in New South Wales. The charges did not involve any of the challenged provisions. The offence of threatening a fisheries officer is created by s 247(2) of the State Fisheries Management Act. It is convenient to set out the whole of that provision.

In contrast to subs (1), there is no reference in subs (2) to “the exercise of the officer’s functions under this Act”; nor is there any requirement that the person act “without reasonable excuse”. No reason was suggested in the course of argument as to why such constraints should be implied in subs (2). It is easy to see why the law would make it an offence to threaten a fisheries officer, wherever he or she might be and whatever he or she might be doing. Further, as the relief sought demonstrated, the State Fisheries Management Act was only challenged in so far as it purported to authorise the Plan.

The first charge against Ralph Lavender involved threats made in 2013 on the shores of Lake Illawarra. The judge noted, by way of background, the following circumstances:

The activities in which the applicants had been engaged shortly before they were spoken to by fisheries officers occurred on Lake Illawarra, which, although tidal, is within the boundaries of New South Wales. It appeared the applicants had been collecting cockles. When the threats were made, all parties were on dry land. This offence had nothing to do directly with the validity or otherwise of the Plan, nor with any aspect of the Commonwealth regime for the management of fisheries in Australian waters.

The second charge against Ralph Lavender involved threats made at the Hanging Rock boat ramp on Batemans Bay, near where the applicants had “hung” abalone. (Abalone are “hung” when they are placed in crates and stored in the sea.) The applicants had been observed by fisheries officers earlier in the day taking abalone in a boat off Little Oaky Beach, between Batemans Bay and South Durras. The material before this Court did not reveal whether the abalone were taken on the landward or seaward side of the closing line of Little Oaky Bay.

Two propositions were implicit in the challenges to the validity of the State laws. The first was the proposition that at the time the threats were made the fisheries officers were carrying out functions related to the enforcement of State law in waters seaward of the mean low water mark. The second was that an offence of threatening a fisheries officer was only committed if the fisheries officer was seeking to enforce a valid State law. The correctness of both assumptions may be doubted; however, they were not challenged by the respondent, which defended the case on the basis that the State laws were valid and applied to waters below the mean low water mark and within the territorial waters of the State.

The Plan required that the weight and number of abalone had to be recorded, together with the place where they were hung, [8] following which the records had to be provided to the nearest office of the Department of Primary Industries. [9] Neither of these steps was taken.

The two charges against Jack Lavender arose under the Plan and concerned the abalone which had been hung in the waters of Batemans Bay. The charges alleged that he had contravened cll 30(1) and (4) and 38 of the Plan. At the time of the offences, cl 30 relevantly provided:

Clause 38 made it an offence for an endorsement holder to contravene a provision of the Plan designated as “an endorsement holder offence”.

These offences both occurred after Mr Lavender had come ashore and therefore occurred within New South Wales. It is true that the offences arose from the hanging of abalone, but that occurred in the waters of Batemans Bay which, for reasons which will be explained below, is within the limits of New South Wales. There was no constitutional issue as to the application of the Fisheries Management Act in relation to waters within the limits of the State. Accordingly, no constitutional issue arose directly with respect to commission of those offences either.

One way in which a constitutional issue could potentially arise was if the offences under cl 30 of the Plan required that the abalone being hung had been taken within the waters covered by the Plan and beyond the limits of the State. The evidence did not establish where the abalone in question had been taken. Nor was any submission directed to the scope of cl 30, which did not, in terms, require that the abalone had been taken from any particular location. However, it was arguable that the scheme of the Plan was directed to managing the fishery identified in Sch 1 to the Act, [10] and that, unless the Plan operates with respect to the whole of the fishery as contemplated in the Schedule, the Plan must be entirely invalid. Thus, as a practical matter, the operation of the Plan would be ineffective if it was valid only with respect to the internal waters of the State.

These propositions (not clearly articulated in the parties’ submissions) provide a tenable basis for the challenge to the validity of at least aspects of the legislative regime, which must therefore be addressed.

Although there had been Commonwealth legislation on specific topics, such as fisheries and off-shore petroleum exploration, before 1973, the Seas and Submerged Lands Act was the first legislative attempt to provide a settled basis for Commonwealth regulation of coastal seas. Because one purpose of the Act was to resolve uncertainties, relevant provisions are difficult to interpret without an understanding of the areas of uncertainty. Accordingly, the following discussion commences with an overview of the common law when New South Wales was established as a British colony, and as at Federation. Secondly, it addresses pre-1973 legislation applying to coastal waters, and, thirdly, the terms of the 1973 Act.

The earliest history, commencing in the pre-Stuart period in England, may be found in a most readable account by Geoffrey Marston, The Marginal Seabed: United Kingdom Legal Practice. [11] For present purposes it is sufficient to take note of three cases, namely (a) Attorney-General v Sir John Constable, [12] (b) the Cornish mines arbitration, and (c) R v Keyn. [13]

The 1575 case of Attorney General v Constable involved a wreck found in the intertidal zone. Constable’s counsel, Plowden, stated that “we ought to consider to what place the bounds of England extend, and then to whom the property of the sea and the land under the sea belongs, and to whom belongs the property of the land between the greensward and the low-water mark, and within what county and parish the said soil is …”. [14] Further, Plowden drew a distinction between jurisdiction and property, contending:

Constable was successful, but the questions raised by Plowden were for the most part not addressed. [15] Nevertheless, the importance of his distinction between jurisdiction (or dominion) and property has not been doubted. On the one hand, a proprietary interest is not needed to make laws regulating fisheries. [16] On the other hand, as explained by Barwick CJ in Bonser v La Macchia: [17]

In the mid-nineteenth century, disputes arose in relation to the tin and copper mines in Cornwall, which, from the end of the eighteenth century, had extended under the sea. [18] There was a contest as to whether the mines and minerals under the sea, the seashores and the shores of tidal estuaries and rivers were owned by the Duchy of Cornwall, or by the Crown. These issues were originally submitted to arbitration before Sir John Patteson who ruled in 1858: [19]

There followed the Cornwall Submarine Mines Act 1858. [20] By that Act all mines and minerals lying below the low water mark under the open sea “adjacent to but not being Part of the County of Cornwall” were vested in the Queen. [21] Not to be deterred, the Duchy claimed that the “maritime territories of the Realm … extend to three geographical miles off the shores of the Kingdom generally, except in the case of bays or indentations not exceeding ten geographical miles across, when the distance of three miles would be reckoned from a line drawn, from low water mark off one headland, to low water-mark off another headland”. [22] Further, the Duchy submitted that whatever was within the territorial ownership of the Crown was also within some county (in this case Cornwall) as was the rest of England. [23] An arbitration by Sir John Coleridge in October 1869 accepted that there should be closing lines across estuaries and tidal rivers, but that otherwise the land seaward from the low water mark was vested in the Crown and not the Duchy. [24]

On 17 February 1876 a German steamship collided with a British steamship off the port of Dover. A coroner’s jury returned a verdict of manslaughter against Ferdinand Keyn, the master of the German ship, who was duly indicted for manslaughter. The indictment alleged that the offence was committed “upon the high seas within the jurisdiction of the Admiralty of England and within the jurisdiction of the Central Criminal Court”. [25] The accused was duly convicted by a jury, but the trial judge (Pollock B) stated a case to the Court for Crown Cases Reserved on the question of jurisdiction. The case was ultimately heard by an augmented court of 14 judges, one of whom died prior to delivery of judgment. Seven judges held that the Central Criminal Court had no jurisdiction; six concluded that the sea within three miles of the coast of England was part of the territory of England and that English criminal law extended over those seas. The dissenters said that the Admiral formerly had, and the Central Criminal Court then had, jurisdiction to try offences committed there, although they occurred on board a foreign ship. [26]

As explained in the joint judgment in Commonwealth v Yarmirr: [27]

The joint reasons quoted with apparent approval the following passage from the judgment of Lush J in Keyn: [28]

The regulation of fisheries in New South Wales has occurred entirely by statute. The first State statute appears to have been Fisheries Act of 1865. It was replaced in due course by the Fisheries Act of 1881 and then by the Fisheries Act 1902 (NSW), which required that commercial fishermen and their boats be licensed. The Act applied to “inland waters” which were not tidal and to “tidal waters” which covered waters subject to the influence of the tide “over Crown land [and] over lands in the possession or under the control of the Crown … within the territorial jurisdiction of the Crown in New South Wales”. [30] The territorial limits were not otherwise defined. Similar language was used in the Fisheries and Oyster Farms Act 1935 (NSW). That Act remained in force in New South Wales until replaced by the Fisheries Management Act 1994 (NSW), which commenced on 16 January 1995.

Prior to the repeal of the 1935 Act, the Commonwealth had entered the field, enacting the Fisheries Act 1952. In fact, the Fisheries Act was not the first legislative attempt to regulate fishing in Australian waters. The short lived Federal Council of Australasia had been given legislative authority in terms identical to s 51(x) of the Constitution. It had passed two laws regulating certain fisheries in waters adjacent to Queensland and Western Australia, the operation of which was preserved by s 7 of the Commonwealth of Australia Constitution Act. [31]

At its commencement the 1952 Act operated in Australian waters beyond territorial limits (and waters adjacent to a territory within territorial limits), in reliance upon the power conferred by s 51(x) of the Constitution, permitting legislation with respect to “fisheries in Australian waters beyond territorial limits”. In Bonser v La Macchia the High Court upheld the validity of the Act so far as it regulated fishing in an area six nautical miles off the New South Wales coast. However, as recognised in a number of the judgments, there were doubts as to the operation of the Act within the three nautical mile territorial sea. Barwick CJ, who considered that the Commonwealth had no power under s 51(x) with respect to fisheries within three nautical miles of the seashore, added that “the exclusion of the first three nautical miles of coastal water from the Commonwealth legislative power with respect to fisheries as granted by s 51(x) is pregnant with practical difficulties particularly if there is at any time any diversity between Commonwealth and State laws with respect to fishing on the high seas.” [32]

In 1973 the Commonwealth enacted the Seas and Submerged Lands Act, conferring sovereignty on it over the territorial seas.

The Seas and Submerged Lands Act 1973 (Cth) incorporated into domestic law the Convention on the Territorial Sea and the Contiguous Zone, and the accompanying Convention on the Continental Shelf, both done at Geneva on 29 April 1958. The Convention on the Territorial Sea is relevant for present purposes. Articles 1 and 2 provided that “[t]he 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” and extends to “the air space over the territorial sea as well as to its bed and subsoil.” Articles 3-8 provided a mechanism for determining the limits of the territorial sea by reference to a “baseline”. The baseline followed the low water mark along the coast (Art 3) but, “where the coastline is deeply indented and cut into”, joined appropriate points from the low water mark of the headlands on either side of the bay or indentation (Art 4). Pursuant to Art 5, “[w]aters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.”

The operative provisions of the Act appeared in Pt II which (as originally enacted) had three divisions, dealing with “The Territorial Sea” (Div 1), “The Continental Shelf” (Div 2), and “Savings” (Div 3). This case is not concerned with Div 2. In Div 1, s 6 declared 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 Crown in right of the Commonwealth.” Further, s 10 provided:

Taken in isolation, s 10 would have purported to vest sovereignty in the Commonwealth over parts of the States. However, there was a saving provision in Div 3 in relation to waters within State limits:

The explanation for the declaration (s 10) and the exclusion from the declaration (s 14) is almost certainly found in uncertainty as to the limits of the States at Federation. Certainly the Minister dealt with the two clauses of the bill together in the Second Reading Speech. [33] Many of the earlier cases which had discussed the limits of the State did so by reference to “the low-water mark”, with no reference to indentations or the waters of bays, gulfs and estuaries. Keyn’s case was an illustration of this approach; the point of refinement was simply not relevant to the case.

Although it is not directly in issue in the present case, because the applicants’ challenge was to an amended version of s 16, it is convenient to set out s 16 as originally enacted.

The States challenged the validity of the Seas and Submerged Lands Act, which they saw as inconsistent with a widely held view that the territorial limits of each State extended to include coastal waters within three nautical miles of the seashore. In New South Wales v The Commonwealth (“Seas and Submerged Lands Case”) [34] the High Court upheld the Act as a valid exercise of the external affairs power. Because the decision led to the subsequent legislative regime which is under challenge in the present proceedings, it is necessary to identify the principles it established, a task which can be done selectively by reference to the judgments of Mason J and Jacobs J.

Mason J identified the States’ case for invalidity in the following terms: [35]

In rejecting the States’ case, Mason J noted another factor, which was raised in argument before this Court as demonstrating the invalidity of subsequent legislation: [37]

With respect to s 6, which vested “sovereignty in respect of the territorial sea” in the Crown in right of the Commonwealth, Mason J stated: [38]

So far as the inland waters of a State were concerned, Mason J read ss 10 and 14 together, stating: [39]

Jacobs J dealt somewhat differently with the intertidal zone on the landward side of the baseline, concluding that the waters in that zone were not “waters of the sea” for the purposes of s 10. [40] Jacobs J continued: [41]

Jacobs J held that the limits of the colony, as defined in the letters patent, limited New South Wales to an area of “land”, but, understood in accordance with the common law, included “[t]he foreshore between high and low water and the beds of all waters intra fauces terrae over which tidal waters flowed”. [42]

Jacobs J also addressed the effect of the exercise of a sovereignty over the territorial sea, asking: [43]

Jacobs J did not return to the question of s 10, but it may be inferred that he was satisfied that there was no intrusion on State sovereignty because the saving provision of s 14, together with the exclusion of the intertidal zone from the description “waters of the sea” prevented such an intrusion. Neither Barwick CJ nor Murphy J made any reference to s 10; McTiernan J referred to it, but did not discuss the scope of its operation. [44] Gibbs and Stephen JJ dissented.

As both Mason J and Jacobs J noted, the letters patent identifying the extent of the colonies were imprecise as to the waters in the intertidal zone, and the final step relied upon in identifying the limits of the States required reference to common law principles regarding bays, gulfs and estuaries. When the Act was being prepared, there was a real possibility that the use of baselines would leave waters on the landward side of the territorial sea boundary which were not within the limits of the States. If, on the approach adopted by Jacobs J, there were no such waters, that conclusion would not affect the construction of the legislation. Further, the explanation is supported by reference to the Coastal Waters (State Powers) Act 1980 (Cth) discussed below.

It is not entirely clear why, in giving effect to an international Convention, pursuant to the external affairs power, the Parliament might not enact legislation which impinges on the “sovereignty” of a State, in the sense of legislating with respect to parts of its territory. While the validity of the whole Act was at stake, the reasoning focused upon the respective cases raised by the States and the Commonwealth, noted above. Nevertheless, if one took a broader view of the external affairs power than appeared to underlie the reasoning in that case, it would not assist the present applicants.

There was further exploration of the extraterritorial reach of State laws in Yarmirr, the joint reasons stating: [45]

The same idea was more colourfully expressed by the Chief Justice in the course of argument: [46]

The second important case in this period was Pearce v Florenca, [47] decided a year after the Seas and Submerged Lands Case. The Court unanimously upheld a Western Australian law prohibiting the possession of undersized fish in Western Australian waters, defined as the sea from the high water mark to three nautical miles. As explained by Barwick CJ (in terms echoed in each of the other judgments other than that of Murphy J): [48]

The effect of the unanimous decision of the Court was that (a) the States had power to legislate extraterritorially, and in particular with respect to the territorial seas; (b) the statutory declaration of Commonwealth sovereignty over the territorial seas did not deny the power of the States to legislate with respect to the territorial seas and, therefore, (c) the power of the Commonwealth in exercise of its sovereignty was not an exclusive power.

The real significance of the Seas and Submerged Lands Act was the assertion of power to legislate to give effect to the Conventions and not merely, as s 51(x) provided, to legislate for fisheries beyond the territorial limits. State fisheries legislation was vulnerable to inconsistent Commonwealth legislation.

The current offshore legal regime was established following the Seas and Submerged Lands Case, as explained in Yarmirr: [49]

The legislation which followed, relevantly for present purposes, was the Coastal Waters (State Powers) Act 1980 (Cth) (“State Powers Act”) and the Coastal Waters (State Title) Act 1980 (Cth) (“State Title Act”). The State Powers Act defines the phrase “coastal waters of the State” in the following terms:

The extent of the territorial sea and coastal waters is identified in s 4 which provides as follows:

The point of ss 10 and 14 of the Seas and Submerged Lands Act is reflected in the definition of “coastal waters of the State”, paragraph (b) of which expressly envisages that there may be sea on the landward side of the territorial sea as defined by baselines that is not in fact within the limits of the State. That definition reflects the intention of the Seas and Submerged Lands Act to exclude any exercise of sovereignty by the Commonwealth over waters which are within the limits of a State.

The key operative provision of the State Powers Act is s 5, which relevantly provides:

Finally, it is necessary to note the terms of s 7:

It is also necessary to note two features of the State Title Act. That Act adopts the same definition of “coastal waters of the State” as appears in the State Powers Act. The relevant operative provision is s 4(1) which is in the following terms:

There are qualifications to s 4(1) not presently relevant, but the savings in s 8 are relevant:

It is necessary to retrace the chronological steps set out above to note three further matters.

First, s 5(a) of the State Powers Act conferred legislative power on the State without limitation in relation to the “coastal waters of the State”. By contrast, s 5(c), dealing specifically with laws of the State with respect to fisheries, extended to (and only to) “Australian waters beyond the outer limits of the coastal waters of the State”. The latter powers were qualified by the need for “an arrangement” between the Commonwealth and the State that the fisheries were to be managed in accordance with the laws of the State. The “arrangements” referred to in s 5(c) were not relevant in this case, and generally will not be relevant in relation to abalone, which are taken in coastal waters. However, the unlimited powers conferred on the State under s 5(a) did not preclude a valid law of the Commonwealth operating within coastal waters of the State in which event, pursuant to s 109 of the Constitution, the Commonwealth law would prevail to the extent of any inconsistency. By an amendment in 1980, new provisions were added to the Fisheries Act 1952 (Cth) to allow for arrangements to be made with the States with respect to the management of particular fisheries.

The Fisheries Amendment Act 1980 (Cth) introduced a new definition of coastal waters of a State, which reflected the definition in the State Powers Act. Curiously, however, for an Act which was assented to on the same day at the State Powers Act and the State Title Act, instead of referring to “any sea” on the landward side of the territorial sea, the Fisheries Amendment Act referred to “any marine or tidal waters” on the landward side of the territorial sea. (Nothing turns on this variation for present purposes, although it might have affected one aspect of the reasoning of Jacobs J in the Seas and Submerged Lands Case.)

Importantly for present purposes, the Fisheries Amendment Act 1980 introduced into the Fisheries Act 1952 a new s 12H which contained two limbs. Section 12H(1) provided for an arrangement between the Commonwealth and a State or States for a particular fishery to be managed by a “Joint Authority” established under the Act. (That provision was not engaged in the present case.) Separately, s 12H(4) read as follows:

Secondly, on 25 July 1990, less than two months after the legislative scheme came into force, the Commonwealth and New South Wales entered into an Arrangement pursuant to s 12H(4)(b) with respect to a mollusc fishery, providing that the fishery be managed in accordance with the law of New South Wales. [52] (As explained in Harper v Minister for Sea Fisheries, [53] abalone is a mollusc.)

Thirdly, the Fisheries Act 1952 has been replaced by the Fisheries Management Act 1991. Pursuant to the Fisheries Legislation (Consequential Provisions) Act 1991 (Cth), s 7(4)(b), the 1990 Arrangement continues in force as if it had been made under Pt 5 of the Fisheries Management Act 1991. There is no challenge to the validity of the 1990 Arrangement, nor to its continued operation. Accordingly, the mollusc fishery is to be managed according to New South Wales law.

The State legislative response to the off-shore constitutional settlement was essentially three-fold. First, New South Wales enacted the Application of Laws (Coastal Sea) Act 1980 (NSW) (“Coastal Sea Act”), which came into force on 23 February 1981. It defined the term “coastal sea” to mean the territorial sea adjacent to the State and the sea on the landward side of the territorial sea that is not within the limits of the State. [54] Its principal operative provision, s 4, stated that “the laws in force in the State … other than criminal laws and laws of the Commonwealth, apply to and in relation to the coastal sea, and so apply as if the coastal sea were part of the State.” The generality of the provision did not apply to other laws which expressly indicated a contrary operation. [55] The language of deeming (“as if”) was inconsistent with any suggestion that the limits of the State were affected.

Secondly, New South Wales later included Pt 10 in the Interpretation Act 1987 (NSW). The principal operative provision, s 59 provides:

Thirdly, in 1982 s 4H was inserted in the Fisheries and Oyster Farms Act, authorising the State to make arrangements with the Commonwealth for the management of a particular fishery, as provided for in s 12H of the Commonwealth Fisheries Act. [56]

The applicants’ challenge in this case concerned the operation of the State Fisheries Management Act 1994 and the State Regulation giving effect to the Plan. The 1994 Act defines the scope of its operation in s 7, which relevantly provides:

The Fisheries Management Act 1994, s 42, provides for the creation of “share management fisheries” by the proclamation of amendments to Sch 1 to the Act. The Governor’s proclamation of 15 February 1995 [57] identified an abalone fishery contained as Item 4 in Sch 1, in the following terms, as in force at the time of the relevant offences:

The Act, s 60, provides for the making of a management plan for a fishery by regulation, and thus, relevantly, the Plan.

Pursuant to s 102 of the Act, a person is not entitled to take fish for sale from waters to which the Act applies unless authorised to do so by a commercial fishing licence. Further, s 112 provides that a commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by an endorsement on the licence. In the case of a fishery subject to a share management plan, the commercial fishing licence holder must hold shares in the fishery or be nominated by a person who holds such shares. [58] The applicant Ralph Lavender was an endorsement holder in the abalone fishery and hence entitled to take abalone; Jack Lavender was a nominated person.

In 1989 the High Court considered a challenge to a South Australian law with respect to a rock lobster fishery in an area extending 200 nautical miles seaward from the coast of South Australia. The law in question in Port MacDonnell Professional Fishermen’s Association Inc v State of South Australia [59] was made pursuant to an arrangement with the Commonwealth under s 12H(4) of the Fisheries Act 1952.

Port MacDonnell resolved an issue of no materiality for present purposes. The areas of the territorial sea “adjacent to” each State were identified by reference to boundaries established under the Petroleum (Submerged Lands) Act 1967 (Cth). As between South Australia and Victoria, the fishery included a wedge-shaped area of some 2000 square kilometres lying on the Victorian side of the line of equidistance drawn perpendicular to the coastline at the South Australian-Victorian border. The Court held that the area did not form part of the waters “adjacent” to South Australia.

Relevantly for present purposes, the Court addressed the validity of the State Fisheries Act more generally. With respect to the operation of the law outside the State’s coastal waters, the Court noted that validity rested upon two bases, namely, “first, that the legislative power of the State of South Australia, unaided by any power conferred by the Coastal Waters (State Powers) Act, is sufficient to give to the State Act extra-territorial operation within the arrangement area; and, second, that s 5(c) of the Coastal Waters (State Powers) Act confers power on the Parliament of South Australia to give that extra-territorial operation to the State Act.” [60] Expanding the holding in Pearce v Florenca, the Court accepted that there was a sufficient nexus between South Australia and the waters to the 200 nautical mile line to allow for valid extraterritorial State fisheries legislation throughout the Australian fishing zone. [61] The State law would not have been valid if there had been an inconsistency with a Commonwealth law, potentially the Fisheries Act 1952. However, it was the arrangement under s 12H(4) which withdrew the operation of that Act from the particular fishery and therefore removed any possible inconsistency. [62]

The last conclusion rendered it unnecessary to determine the validity of s 5(c) of the State Powers Act. Nonetheless, the Court stated that, having “heard full argument on the question of the validity of s 5(c) … it is appropriate that we express the views which we have formed in relation to it.” The Court upheld the validity of s 5(c) by reference to the State request power, s 51(xxxviii) of the Constitution. Section 5(c) relates to laws of the State with respect to fisheries “beyond the outer limits of the coastal waters of the State”; no issue as to the operation of s 5(c) arises in the present case. However, the Court expressly upheld the operation of s 51(xxxviii), resolving differing views as to its scope. [63]

On the same day that the judgment was delivered in Port MacDonnell, the High Court handed down judgment in Harper v Minister of Sea Fisheries. [64] Although Harper dealt with an abalone fishery in Tasmanian waters, the critical issue was whether the licence fees paid by those entitled to take abalone were a form of excise and therefore invalid under s 90 of the Constitution. That argument was rejected. So far as the case considered the nature of an abalone fishery, the relevant passages are extracted below in dealing with an assumed ground of challenge raised by the applicants.

Finally, some at least of the points of challenge in this case had been raised in separate proceedings in the Federal Court and determined adversely to the applicants in those proceedings by the Full Court in Babington v Commonwealth. [65] One of the present applicants was a party to those proceedings. There is no reason to doubt the correctness of the conclusions or the reasoning in that decision, nor repeat them here, merely to determine the extent to which the applicants were able to distinguish Babington, as they sought to do.

Before identifying certain specific challenges raised by the applicants, it is convenient to address an underlying theme, namely the authority of the State to legislate with extraterritorial effect, which in turn renders it necessary to identify the limits of the states.

The coastal boundaries of the States were given consideration in both Bonser v La Macchia and the Seas and Submerged Lands Case. In Port MacDonnell the joint judgment of the whole Court said that the Seas and Submerged Lands Case had “decided that the boundaries of the States ended at the low water mark and at the closing lines of bays and gulfs”. [66] There is no dispute that this principle applied when the colony was established and defined in the second commission issued to Governor Phillip on 2 April 1787. [67]

From this it would appear that s 14 of the Seas and Submerged Lands Act effectively removed the whole of the operation of s 10.

It follows that the waters of Lake Illawarra and Batemans Bay, on the landward side of the closing lines from the mean low water mark on opposite headlands, are within the limits of the State. The State Fisheries Management Act will apply to them pursuant to s 7(1)(a), unless there is a Commonwealth law which is inconsistent with the State Act.

Just as a claim of “sovereignty” over a land mass involved a claim to be entitled to legislate with respect to the land, so a claim of sovereignty over a territorial sea involved a claim as of right to legislate with respect to the seas and the seabed. As further explained in the joint reasons in Yarmirr: [68]

In Meyer Heine Pty Ltd v China Navigation Co Ltd [69] Windeyer J described the effect of Macleod v Attorney General for New South Wales [70] as having “cast an uncertain shadow upon the competence of the Australian Parliament to pass an Act having extra-territorial operation.” That shadow has long since been lifted, not least by the express acknowledgement of the power in s 2(1) of the Australia Act 1986, both (UK) and (Cth). [71] However, it may be assumed that, absent a clear expression of legislative intent, it will be assumed not to do so; a presumption as to local operation now found in s 12(1)(b) of the Interpretation Act. Taylor J in Meyer Heine referred to the principle of statutory interpretation that “the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdiction”, [72] continuing “it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according the comity of nations, the jurisdiction properly belongs to some other sovereign or state”. [73]

Any constraint on the power of a State to legislate with extraterritorial effect appears to derive, somewhat curiously, from the conferral in the State Constitution of powers “to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever”. [74] While the power to legislate extraterritorially has long been accepted, there remains an intangible condition based on a “connection” or “nexus” with the State. Satisfaction of the condition is a matter for the court to determine, not the parliament. That remains true after the enactment of the Australia Acts. Thus, in Union Steamship Co of Australia Pty Ltd v King [75] the full High Court stated:

The State legislative response to the offshore constitutional settlement expressly stated that State laws generally did apply to the coastal seas; the Fisheries Management Act validly stated in express terms the circumstances in which it so applied in s 7(1)(c). No further nexus or connection is required.

In Babington, the Full Court of the Federal Court upheld the State Fisheries Management Act as a valid exercise of legislative power, but found it unnecessary to answer questions as to the validity of the State Powers Act (and the State Title Act). Consistently with the reasoning in Pearce v Florenca and Port MacDonnell, the Full Court held that the State law was valid State legislation with extraterritorial effect and there was no need to rely upon s 5 of the State Powers Act. The same reasoning must apply in the present case.

The grounds in the amended summons did not clearly particularise the matters of challenge raised in the written and oral submissions. Nor, indeed, did the submissions do so with any great clarity. Further, the applicants read three affidavits, much of the contents being relied on as submissions. Where specific challenges can be identified they will be addressed.

The applicants pursued a global challenge to the validity of the State legislation, including the purported conferral on the State of Commonwealth power, pursuant to the State Powers Act. The basis of the challenge was that control of the territorial sea lay within the exclusive power of the Commonwealth.

That argument was fundamentally misconceived. The applicants pointed to no head of Commonwealth legislative power beyond s 51 of the Constitution; no reliance was placed on the exclusive powers under s 52. To the extent that the argument denied the existence of a State extraterritorial legislative power, it was untenable as a matter of principle and authority. To the extent that the argument was based on the declaration of sovereignty over the territorial sea in the Seas and Submerged Lands Act, the High Court in 1975, 1976 and 1989 rejected the proposition that that Act had created some form of dominion over the territorial sea inconsistent with any exercise of State legislative power.

The applicants relied on statements from two sources, neither precisely identified. First, there was said to be a statement by the Right Hon Joseph Chamberlain, Colonial Secretary, describing the effect of the Commonwealth of Australia Constitution Bill 1900 (Imp), in the course of which he was said to have described the power with respect to offshore fisheries as an exclusive power of the Commonwealth. Secondly, the applicants asserted there was a comment to similar effect by Quick and Garran in their Annotated Constitution, [77] but no reference was provided and none is apparent.

In short, neither source supports any such submission; the Colonial Secretary’s only reference to fisheries was in the following terms: [78]

No person familiar with the scheme of the Constitution could have overlooked the fact that the legislative power with respect to “fisheries in Australian waters beyond territorial limits” was to be found in s 51 of the Constitution, not s 52 dealing with the exclusive powers of the Parliament. Any opinion that the fisheries power was an exclusive power must be based on practical effect and on two assumptions, namely that the Australian colonies, prior to Federation, (a) did not extend beyond the low water mark of their respective coastlines and (b) had no power to legislate with extraterritorial effect.

The first of these assumptions was upheld in the Seas and Submerged Lands Case, but the second has been rejected more than once by the High Court, a position which is now reflected in the Australia Act 1986 (UK), s 2(1). The legislative power of the Commonwealth with respect to fisheries is not an exclusive power.

It is possible that a somewhat different submission was intended, to the effect that the Commonwealth did not have legislative power to confer legislative power on the States over the territorial sea beyond the limits of the States, if the States did not otherwise have such power. However, such a submission is untenable in light of the holdings in Port MacDonnell.

There was a separate challenge to the validity of the Plan. Abalone generally live (and are hung) below the mean low water mark. They will frequently be taken from coastal waters beyond the limits of the State. However, especially where there are indentations of the coast which involving closing lines, they may also be taken (and hung) in internal waters of the State. Those waters will be within the limits of the State and therefore not part of the territorial sea of Australia.

As a practical matter, the regulation of the abalone fishery required the application of one set of laws and, as they almost certainly live within the limits of the State, it was clearly practical that the fishery be governed by State law. That was the consequence of the 1990 Arrangement. Nevertheless, that Arrangement did not confer on the State a power which it did not otherwise have to legislate for the abalone fishery.

In its terms the State Fisheries Management Act does not operate beyond State limits unless there is an arrangement of the kind referred to in ss 135 and 136, which includes one deemed to have been entered into by the Commonwealth pursuant to s 74 of the Fisheries Management Act 1991. Although s 7(1)(c) of the State Act recognises that the State may legislate pursuant to s 5 of the State Powers Act, it conditions the application of the State Act on a State-Commonwealth arrangement. It therefore depended on the 1990 Arrangement.

While the 1990 Arrangement was not a source of legislative power, by withdrawing the operation of the Commonwealth fisheries legislation in respect of the particular fishery, it identified an area within which State regulation could operate without inconsistency with a Commonwealth law. The mollusc fishery was defined by reference to the three nautical mile territorial sea measured from the baseline along the coast of New South Wales. At its northern and southern extremities it was defined (subject to the need for the waters to be “adjacent to” New South Wales) by the boundaries identified in the Petroleum (Submerged Lands) Act. In other words, the Arrangement related to a precisely defined area of waters. By contrast, the applicants submitted, the definition of the fishery in Sch 1, item 4 of the State Fisheries Management Act spoke of abalone taken by any method “from any waters.” There was, they submitted, a lack of conformity between the fishery so defined and the fishery the subject of the Arrangement.

As a matter of principle, that submission failed to address basic principles of statutory interpretation. First, the phrase “from any waters” should not be read in isolation. It should be read in the context of the Fisheries Management Act as a whole, and in particular s 7 which identifies the waters to which the Act applies. Those waters include all waters that are within the limits of the State (with respect to which no Commonwealth authority is required) and, in relation to a fishery managed in accordance with the law of the State pursuant to the 1990 Arrangement, extend to waters to which the Arrangement applies.

This reasoning is consistent with that adopted by Mason J in Pearce v Florenca. The Western Australian Act in that case had defined the expression “Western Australian waters” to include the sea from the high water mark to three nautical miles offshore from low water mark and included what may be described as internal waters of the State. The prohibition, however, applied to undersized fish “whether taken within Western Australian waters or elsewhere”. Mason J noted that this language departed from the legislative policy of protecting fisheries in Western Australian waters, if the section were given a literal application. Noting the “evident difficulty of relating the possession of undersized fish to their place of capture”, Mason J saw the section as “so designed that the place of capture of the fish is not an element in the offence.” He continued: [79]

In the present case, the limitation need not be implied; it is expressly stated in s 7. The purpose of s 7 is to avoid the need to restate the scope of a variable geographical application in relation to each provision.

The same result is achieved by having regard to the Interpretation Act 1987. Section 12(1)(b) provides that in any Act or instrument “a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.” Thus, the phrase “any waters” is to be read as a reference to “any waters in and of New South Wales.” That language is elucidated by s 59 of the Interpretation Act [80] requiring that State laws apply with respect to the coastal waters of the State “as if the coastal waters of the State… were within the limits of the State.”

The definition of “coastal waters of the State”, as set out in s 58 of the Interpretation Act, mirrors the definition of the same phrase in the State Powers Act. Section 58 also expressly picks up the boundaries of the “adjacent area” in the same terms as the State Powers Act, by reference to a schedule to the Petroleum (Submerged Lands) Act. [81] So far as the evidence went in this case, that is precisely the same area as appears in the schedule to the Arrangement with respect to the mollusc fishery. Accordingly, there is no disconformity between the area covered by the fishery the subject of the arrangement and the abalone fishery identified in Sch 1 to the State Fisheries Management Act.

Because the applicants sought to challenge the validity of s 16(2)(b) of the Seas and Submerged Lands Act, it is necessary to refer to amendments which took effect on 1 January 1982, with the State Powers Act. (The State Title Act did not commence until 14 February 1983.)

Section 16 as originally enacted, set out at [106] above, is now subs 16(1). One purpose of s 16(a) was to preserve the operation of legislation such as the Fisheries Act 1952 which regulated fishing activity in Australian waters. The apparent purpose of par (b) was to maintain the operation of a State law which might otherwise be affected by the declaration of sovereignty over the territorial sea (and indeed Australian waters generally), which would include State laws which were not inconsistent with the operation of the Fisheries Act 1952. There was an exception, namely with respect to any law “expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part.” The purpose of that provision was, no doubt, to avoid any potential derogation from the operation of the Seas and Submerged Lands Act, which might, itself, not engage the operation of s 109 of the Constitution so as to enjoy paramountcy. However, its operation as an exception to the savings provision was somewhat obscure. An Act regulating fisheries would clearly give effect to a sovereign right to legislate with respect to fisheries; would it be expressed to “make exercisable” such a sovereign right?

Section 16(2) was, in part, designed to clarify that uncertainty, but also to give effect to the offshore constitutional settlement. The provision states:

Subsection (2) appears to assume that a law with respect to the seabed or subsoil could be a law within the exception in (1)(b). Paragraph (a) states that subsection (1)(b) does not apply to such laws, but only if proprietary rights have been vested in the State by a law of the Commonwealth; that would not touch the exercise of the power of the State to legislate extraterritorially. However, the exception is extended by par (b) to cover laws not covered by (a) if the law is otherwise “within powers with respect to particular matters that are conferred on the legislature of the State” by the State Powers Act.

The applicants sought to challenge the operation of s 16(2)(b) on the assumption that the operation of the State Fisheries Management Act in the territorial sea beyond the limits of the State depended on powers conferred by the State Powers Act. As that was not the case, s 16(2)(b) has no relevant operation for present purposes.

It is appropriate, however, to consider how the provision would operate if it were necessary to maintain the validity of the Fisheries Management Act by reference to the State Powers Act. The statement in s 5(a) of the State Powers Act that the legislative powers of the State extend to making such laws as could be made if the coastal waters were within the limits of the State is unqualified in its operation. The result is that the effect of s 16, saving the operation of laws of the State, is not subject to any relevant exception, so far as those laws apply with respect to coastal waters.

As noted above, the High Court held in Port MacDonnell that s 5(c) of the State Powers Act was a valid exercise of Commonwealth power. The applicants sought to distinguish Port MacDonnell on the basis that there was, in that case, an arrangement to which the Commonwealth and the State were parties that the fishery be managed in accordance with the laws of the State. The respondent noted that there was a similar Arrangement in place in the present case, so that there was no point of distinction. However, there is a point of distinction, in that s 5(c) requires that there be such an arrangement; the conferral of legislative power under s 5(a) contains no such precondition. It follows that the conclusion in Port MacDonnell (albeit unnecessary to the result in that case) affirms the validity of s 5(a) of the State Powers Act. It is not open to the applicants to submit in this Court that the provision is invalid. However, if the relevant parts of s 5 of the State Powers Act are valid, there is no basis upon which to contend that the purely ancillary provision in s 16(2)(b) of the Seas and Submerged Lands Act is invalid. The applicants’ submissions in this respect must be rejected.

The applicants submitted that the effect of the State Title Act and the State Powers Act, operating in tandem, was to extend the territory of the State. This, the submission continued, rendered them invalid absent compliance with s 123 of the Constitution. That section provides:

It may be accepted that the only means of altering the limits of a State is in accordance with the terms of s 123. It may also be accepted that the requirement for the approval of the majority of the electors of the State was not sought or obtained. Nevertheless, the submission fails because that was not the effect of the State Title Act, whether taken alone or in combination with the State Powers Act. The key provision is s 4(1) of the State Title Act:

There are a number of reasons why s 4(1) does not extend the limits of the State. First, it does not purport to do so; rather it expressly abjures any such effect. The vesting achieved by s 4(1) is expressly stated to be “subject to this Act”; that must include the savings provisions in s 8 which is in the following terms:

Secondly, there is no inconsistency between these provisions: the language of s 4(1) of the State Title Act does not contradict s 8(a). Far from purporting to extend the limits of the State, s 4(1) vests “the same right and title to the property in the sea-bed … as would belong to the State if that sea-bed were … within the limits of the State.” A description of the effect of the vesting in the form of a deeming provision (“as … if”) would be entirely inappropriate if the limits of the State were being extended to include the seabed.

Thirdly, the concept of “right and title to property” is subject to the qualifications expressed in the joint reasons of four members of the Court in Yanner v Eaton: [82]

Further, as stated by Gummow J in the same case: [90]

In Commonwealth v WMC Resources Ltd [91] the High Court considered the effect of the cancellation of petroleum exploration rights which had been granted to the respondent under the Petroleum (Submerged Lands) Act over a number of areas on the continental shelf. Brennan CJ referred to the observations of Stephen J in the Seas and Submerged Lands Case to the following effect: [92]

Brennan CJ reasoned in WMC Recources: [93]

It is true, as this reasoning acknowledged, that there was distinction to be drawn between the territorial sea and the continental shelf. The Seas and Submerged Land Act itself drew such a distinction in that s 6 “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 Crown in right of the Commonwealth.” The equivalent declaration in respect of the continental shelf (in s 11) merely “declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.” Nevertheless, the Act did not purport to vest “title” in respect of the territorial sea in the Commonwealth. It appears that the sovereign rights vested in the Commonwealth with respect to the territorial sea were seen to be sufficient to vest title to the seabed in the States. Although it is no doubt true that the radical title of the State in the seabed provides a conceptual basis for the grant of leases and other titles over the seabed, it does not follow that the seabed beyond the limits of the State has become part of the State any more than a place owned by the Commonwealth within a State is excised from the State, or the site of an embassy in another country becomes part of the Commonwealth.

Indeed, it is clear that the right and title vested in the State was not full title, in the sense of a beneficial fee simple estate. Dealing with similar legislation in the Northern Territory, the joint judgment in Yarmirr stated:

It follows that neither the State Title Act nor the State Powers Act (taken alone or in combination) expand the limits of New South Wales. However, it may be accepted that there are arguments to the contrary. For example, the savings provision in s 8 of the State Title Act (and s 7 of the State Powers Act) may not be effective if the title conferred on the State has the legal effect of expanding the limits of the State. Conceding, in other words, that the State Title Act in particular may extend the limits of the State, what follows? The answer must be that the Act is, at least to that extent, invalid. But that is of no present consequence; as already explained the State fisheries legislation was a valid exercise of State power to legislate with extraterritorial effect, so long as there was no inconsistent Commonwealth legislation in existence. That power did not depend upon the State having any proprietary interest in the seabed. As explained by Brennan CJ in WMC Resources, addressing a permit granted by the Commonwealth to drill for oil on the continental shelf north-west of Australia: [96]

In other words, the applicants arguments as to invalidity based on a failure to comply with s 123 of the Constitution must be rejected, but it would not matter if they had been upheld.

The applicants submitted that, because abalone was a sedentary organism, “it is treated as if it was a mineral” and was therefore “part of the seabed”. [97] The submission continued, “that such a fishery involves the exercise of possession or sovereignty with respect to the seabed and requires title and couldn't otherwise be done except by a change in the limits to the State approved by the people”. [98]

Whether this submission constituted another basis for invalidity of the Plan, arising from an invalid extension to the limits of the State, or whether it constituted some separate basis for claiming that the Plan was invalid, is unclear. The submission is, in any event, founded upon an erroneous premise.

Whatever the degree of attachment to the seabed, abalone is not a mineral and is not treated as such by the law. The 1882 case of Goodman v Mayor of Saltash [99] concerned a claimed public right to dredge for oysters, even if the exercise of the public right were to exhaust the fishery. In upholding the right, Lord Selborne LC stated: [100]

The issue in Harper was whether the licence fees paid by those entitled to exploit the fishery were duties of excise. As Brennan J further explained: [102]

Brennan J concluded, relevantly for present purposes: [103]

It follows that, on any view of the applicants’ submissions, they must fail.

For these reasons, the applicants’ challenge to the validity of the State legislation under which they were prosecuted must be rejected. The amended summons seeking to set aside the judgment in the District Court rejecting their appeal from their convictions in the Local Court must be dismissed. The applicants should pay the respondent’s costs of the proceedings in this Court.