Opinion No. 1596
CUSTOMS: WATERS BEYOND ORDINARY LIMITS OF TERRITORY: CHASE OF FOREIGN VESSEL: OPERATION OF CUSTOMS ACT: DISCONTINUANCE OF CHASE AT THREE MILE LIMIT
CUSTOMS ACT 1901 s 184
12 June 1936
Comptroller-General of Customs, Department of Trade and Custom
The Comptroller-General of Customs has forwarded the following memorandum for advice:
A memorandum in the following terms has been received from the Collector, Queensland:
Section 184 of the Customs Act provides that if a vessel refuses to bring to when properly hailed by the officer in charge of a Customs boat, the said officer may chase the ship and fire at or into her.
In the initial stage of the patrol service about to be established on the northern coast it is not intended that aggressive action of this nature should be taken, but it is quite possible that when a permanent patrol is in force occasion may arise when an officer feels justified in chasing a defiant vessel.
It is presumed that even if the chase of a foreign vessel starts within the 3 mile limit, the vessel would be immune from attack once she had passed the international boundary.
I should be glad to be favoured with advice on the point raised.
The laws of the Commonwealth, generally speaking, have effect only within the territory, including the territorial waters, of the Commonwealth.
It was held, however, by the Privy Council in Croft v. Dunphy (1933 A.C. 156) that for certain purposes (including police and revenue) a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory, and that the Dominion of Canada might enact laws for the purposes mentioned having effect beyond the ordinary limits of its territorial waters.
The Canadian Act under consideration in that case applied to vessels registered in Canada and hovering within twelve miles of the Canadian coast.
In the absence, however, of any provision in section 184 of the Customs Act expressing that the section should have effect beyond the usual limits of the territorial waters, I am of opinion that the operation of the section is confined to those limits.
The chase of a vessel–whether foreign or not–under that section should, therefore, be discontinued at the three-mile limit.
[Vol. 29, p. 248]