The Secretary to the Department of the Navy has forwarded for advice the following memorandum:

I am commanded by the Naval Board to inform you that occasions may arise in which it is desired, by State or Federal Authorities, to employ H.M.A. Ships on other than military duties, for example, the arrest of alleged fishery poachers in waters adjacent to the Australian Coast or Islands, Islets, Rocks, etc., lying off the Australian Coast, and it is desired to determine what powers Naval Officers have for the arrest of:

1. British Subjects,
2. Foreign Subjects,

who may be considered to be engaged in illicit practices on the open sea.

2. In regard to officers of the Royal Navy, certain powers are conferred upon them by British legislation, for example, the Slave Trade (Consolidation) Act of 1873 and Sea Fishers’ Act of 1868): also the position in regard to indictable offences is dealt with in the Territorial Waters Jurisdiction Act of 1878.
3. The Naval Board would therefore be glad if an opinion could be given on the following points:

Generally:

1. Are there really any Australian Territorial Waters, or are the waters adjacent to the Australian Coast ‘British’, i.e. under the jurisdiction of the Government of Great Britain (and so the British Admiralty).
2. If there are Australian Territorial Waters, who has jurisdiction, the Federal or the State Authorities?
3. If the waters adjacent to the Australian Coast are Federal Territorial Waters, what powers of arrest are vested in Officers or other persons belonging to the Royal Australian Navy.

Particularly:

1. What Islands, Islets, Rocks, etc., beyond the three-mile distance from the Australian Coast are territory of the several States and which are Federal Territory.
2. What State or Federal Laws are in existence dealing with fishing, pearling, etc., in waters adjacent to the Mainland, and/or such Islands, Islets, Rocks, etc.
3. If such laws are State laws, how far can Federal Naval Officers exercise powers of arrest, etc., in connection with breaches of any such laws.
4. In regard to the use of force, if such is permissible in any circumstances, the Naval Board desire that the powers of Naval Officers may be clearly demonstrated in order that they may not be jeopardised personally in the carrying out of any duty for which they may be detailed. As an example of the risks which Naval Officers might incur, attention is directed to a recent case in which a policeman was convicted of manslaughter in the Tasmanian Courts, as a result of shooting a man in a motor boat which was alleged to have been engaged in illicit fishing.

I will deal with the questions asked in paragraph 3 of the Secretary’s memorandum in the order in which they are there set out.

Generally:

1. The term ‘territorial waters’ is not one which, apart from particular statutes, has any precise definition.

By the common law of England, as laid down in R v. Keyn (1876) 2 Exch. D., 63, the high seas below low-water mark are not part of the ‘realm’, and therefore (apart from Statute) foreigners cannot be tried for offences committed there. The same principle would apply to Australian waters.

But it is recognised there is a right of ‘dominion’, or jurisdiction over the high seas adjacent to the coast, which enables Parliament to make laws having effect in such waters; and international law recognises this jurisdiction at least up to a limit of 3 miles, and subject to the right of ‘innocent passage’ for ships.

The preamble of the Territorial Waters Jurisdiction Act 1878 recites that ‘the rightful jurisdiction of Her Majesty, her heirs and successors, extends and always has extended over the open seas adjacent to coasts of the United Kingdom and all other parts of Her Majesty’s dominions, to such a distance as is necessary for the defence and security of such dominions.’

Accordingly, that Act provides that an offence committed by any person, whether a British subject or not, and although committed on board a foreign ship, on the open sea within ‘the territorial waters of Her Majesty’s dominions’ as defined by the Act, is an offence within the jurisdiction of the admiral, and the offender may be arrested, tried and punished accordingly. ‘The territorial waters of Her Majesty’s Dominions’ are defined, for the purposes of the Act, as meaning ‘such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty; and for the purpose of any offence declared by this Act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within ‘the territorial waters of
Her Majesty’s Dominions’.

It is clear, therefore, that the waters within three miles of the Australian coast are ‘territorial waters of His Majesty’s Dominions’ within the meaning of the Territorial Waters Jurisdiction Act 1878.

The Commonwealth Parliament and the Parliament of each State, have power to make laws, within their respective spheres, for the peace, order and good government of the Commonwealth and the State respectively; and their legislative power would undoubtedly extend to the territorial waters, as defined in the above Act, adjacent to their coasts. In that sense, those waters may be called territorial waters of the Commonwealth and of the State respectively.

2. The Commonwealth would have jurisdiction within the sphere of Commonwealth legislation, and the State within the sphere of State legislation.
3. I am not aware of any powers of arrest conferred on members of the Royal Australian Navy in respect of offences committed in territorial waters.

Particularly:

1. The boundaries of the several States of the Commonwealth are set out in Royal Letters Patents or other documents, which define with more or less particularity what islands adjoining the State form part of it. Most of these documents are set out in Volume III of the official edition of Commonwealth Statutory Rules 1901—1914, p. 1839 et seq.

New South Wales, according to Letters Patent of 29 Oct., 1900, comprises all the islands adjacent in the Pacific Ocean and westward of 154o E. long., and also including Lord Howe Island (see Vol. above referred to, p. 1840).

Victoria: No Islands mentioned, but the description of the boundaries of the Mainland is followed by the words ‘and its dependencies’ (see Vol. above referred to, p. 1843).

Queensland: By Letters Patent of 30th May, 1872, the Governor of Queensland was appointed Governor of all islands within 60 miles from the coast of Queensland, with power to surrender them to the colony of Queensland, and by Proclamation and Deed of Transfer dated 22 August, 1872, such islands were annexed to and now form part of Queensland (see Vol. above referred to, p. 1847).

Moreover, by Letters Patent of 10th October, 1878, the Governor of Queensland was authorised (after the Legislature of Queensland should have passed a law providing for the annexation) to declare that the following islands should be annexed to and form part of Queensland, namely:

Certain Islands in Torres Straits and lying between the Continent of Australia and Island of New Guinea that is to say all Islands included within a line drawn from Sandy Cape northward to the south-eastern limit of Great Barrier Reefs thence following the line of the Great Barrier Reefs to their north-eastern extremity near the latitude of nine and a half degrees south thence in a north-westerly direction embracing East Anchor and Bramble Cays thence from Bramble Cays in a line west by south (south seventy-nine degrees west) true embracing Warrior Reef Saibai and Tuan Islands thence diverging in a north-westerly direction so as to embrace the group known as the Talbot Islands thence to and embracing the Deliverance Islands and onwards in a west by south direction (true) to the meridian of one hundred and thirty-eight degrees of east longitude.

By the Queensland Coast Islands Act of 1879 and proclamation of 21 July 1879 in the Queensland Gazette, these islands were annexed accordingly.

South Australia: includes ‘all and every the gulfs, bays, creeks, rivers, and islands (including Kangaroo Island) adjacent to any part of the mainland’ (see Vol. referred to, p. 1851).

Western Australia: includes ‘all the islands adjacent in the Indian and Southern Oceans’ within the latitudes 13 ° 30’ south, and 35 ° 8’ south, and within the longitudes 112 ° 52’ east and 129 ° east (see Vol. referred to, pp. 1854—5).

Tasmania: includes all islands or territories lying between the latitude of Wilsons’ Promontory (39° 12’ south) and latitude 45° south, and between longitude 140° and 150° east. (see Vol. referred to, p. 1858).

Northern Territory: includes ‘the bays and gulfs therein and all and every the islands adjacent to any part of the mainland’ (Northern Territory Acceptance Act 1910, schedule).

Federal Territory: The only island which is Federal Territory, apart from Papua and New Guinea, is Norfolk Island (see Norfolk Island Act 1913, and Imperial Order in Council of 30th March, 1914; Volume above referred to, p. 1894).

The boundaries of Papua are set out in Letters Patent of 8th June, 1888 (Vol. above referred to, p. 1897).

The Territory of New Guinea is defined in the New Guinea Act 1920.

2. There are no Commonwealth Laws with respect to fisheries, etc., but by Order-in-Council made by the Governor-General on the 12th December, 1913, and by Imperial Order-in-Council of the 11th April, 1913 (see Commonwealth Statutory Rules 1901—1914, Vol. III, pp.1802 and 1804) sections 3 and 4 of the Seal Fisheries’ (North Pacific) Act 1912 (Imperial) were extended to the Commonwealth.

There are also the following Acts of the Federal Council of Australasia which are still in force, namely:

Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888;

Western Australian Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1889.

The Principal State Acts relating to Fisheries are as follows:

• New South Wales
• Fisheries’ Act 1902 (No. 119 of 1902);
• Fisheries’ Amendment Act 1910 (No. 14 of 1910);
• Net-fishing (Port Hacking) Act 1901 (No. 18 of 1901).
• Victoria
• Fisheries Act 1915 (No. 2654).
• Queensland
• Fish and Oyster Act of 1914 (No. 23 of 1914);
• Fish and Oyster Act Amendment Act of 1918 (No. 14 of 1918);
• Pearl-shell and Beche-de-mer Fishery Acts of 1881—1913.
• South Australia
• Fisheries’ Act 1917 (No. 1293);
• Criminal Law Consolidation Act 1876 (39 and 40 Vict. No. 38) s. 148;
• Whale Fisheries (No. 7 of 1844).
• Western Australia
• Fisheries’ Act 1905—1913;
• Oyster Fisheries Act 1881 (45 Vict. No. 4);
• Whaling &c. by Foreigners (24 Vict. No. 12 (1860));
• Pearling Act 1912 (No. 45 of 1912).
• Tasmania
• Fisheries Act 1889 (53 Vict. No. 11).
3. None of the above Acts appears to give any power to members of the Naval Forces to enforce, by arrest or otherwise, the provisions of the Act.

Generally, I think it may be said that unless expressly authorized by or under Statute members of the Naval Forces have no power to arrest persons for offences in territorial waters, against Commonwealth or State laws.

[Vol. 19, p. 338]