The Secretary to the Department of Defence has requested advice as to whether the application of section 72 of the Defence Act 1903-1918 extends in relation to the actions outside the three-mile limit of ships whose first port of clearance and port of destination are not in the Commonwealth.

Section 72 of the Defence Act provides as follows:

No ships boats or persons shall come or remain within the prescribed distance of any ship battery gun or person engaged in artillery or rifle practice, or shall remain in any position so as to obstruct such practice. Penalty: Fifty pounds.

Regulation 1251 of the Australian Military Regulations 1916 provides as follows:

1. For the purpose of section 72 of the Act, a ship, boat, or person shall be deemed to have come or remained within the prescribed distance of a battery or gun engaged in artillery practice, if such ship, boat, or person comes or remains within the following areas:

For all defended ports, with the exception of Port Jackson, a rectangular area measuring in length 11,000 yards from the battery or gun engaged in practice, in the direction of the line of fire, and in breadth 2 miles, being 1 mile on each side of the line of fire.

For Port Jackson, the area will be a rectangular area measuring in length 15,000 yards from the battery or gun engaged in practice, in the direction of the line of fire, and in breadth 2 miles, being 1 mile on each side of the line of fire.

2. Similarly the general arrangements for the safety of artillery practice on land ranges shall be those prescribed in "Instructions for Practice, Horse, Field, and Heavy Artillery," also published annually. The doctrine of the limitation of jurisdiction to a marine league seaward is based upon a rule of international law.

The rule is of considerable antiquity, and was fixed in relation to the extreme range of the cannon of the period. It has not been considered sufficiently binding to prevent the enactment of measures operating outside the three-mile limit.

The British 'Hovering Act' passed in 1736 (9 Geo.2 c.35) assumed for certain revenue purposes a jurisdiction of four leagues from the coasts by prohibiting foreign goods being trans-shipped within that distance without payment of duties. A similar provision was inserted in the revenue laws of the United States and both these provisions have been declared by judicial authority in each country to be consistent with the law and usage of nations.

Further it appears that the basis upon which the limit was originally fixed is, having regard to the extended range of modern artillery, a justification for the passing of enactments operating beyond that limit and providing necessary precautions for the safety of the inhabitants of the country by which those enactments are made (Wharton, Digest of International Law, Vol.1, para. 32, p. 114).

The Commonwealth Parliament is invested by the Constitution with power to make laws for the peace, order and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth.

The provision of facilities for artillery practice seaward appears to be a necessary and reasonable incident of the defence of the Commonwealth, and for this purpose a regulation operating 15,000 yards seaward from a shore battery is justified.

It is considered that the Commonwealth has the same power of legislating in regard to the territorial waters of the Commonwealth as was exercised by the Imperial Parliament in the enactment known as the 'Hovering Act'. Such power cannot be exercised generally, but only in respect of such matters as are necessarily incidental to the exercise of the Commonwealth's constitutional authority to secure the peace, order and good government of the Commonwealth.

I am, therefore, of opinion that the Commonwealth has power to pass legislation prohibiting or regulating traffic within 15,000 yards seaward from any gun or battery engaged in artillery practice. Regulation 1251 is a valid exercise of that power.

[Vol. 18, p. 329]