Opinion Number. 1530



Key Legislation

CONVENTION FOR THE REGULATION OF WHALING done at Geneva on 24 September 1931 arts 1, 2, 4, 5, 6, 7, 8, 9: CONSTITUTION s 51(x), (xxxvii)

The Secretary, Prime Minister

The Secretary, Prime Minister’s Department, has forwarded to me for advice the following memorandum:

  • With reference to previous communications on the subject of the Convention for the Regulation of Whaling, I enclose herewith copy of the Convention as adopted at the last Assembly of the League of Nations, and signed by the Commonwealth Delegate. The Convention has not yet been ratified by the Commonwealth Government, nor has it come into force.
  1. When the Convention has been ratified, and has come into force the question will arise of its enforcement as far as Australia is concerned. I am directed to ask for your advice as to what action, legislative or otherwise, will be necessary to give effect to it in Australia.
  2. It is proposed to send copies of the Convention to the several State Governments with a request for advice as to what steps they propose to take to give effect to it; I am, therefore, directed to ask your advice as to any proposals which you consider should be made to the States in this connection.

By Article 1 of the Convention for the Regulation of Whaling which was signed at Geneva on 24th September, 1931, the High Contracting Parties agree to take, within the limits of their respective jurisdictions, appropriate measures to ensure the application of the provisions of the Convention and the punishment of infractions of such provisions. Article 2 provides that the Convention applies only to baleens or whalebone whales. Article 4 provides that the taking or killing of certain kinds of whales is prohibited and by Article 5 the taking or killing of calves or suckling whales, immature whales and female whales accompanied by calves or suckling whales is prohibited.

Articles 6, 7, 8 and 9 read as follows:

Article 6. The fullest possible use shall be made of the carcases of whales taken. In particular:

  1. There shall be extracted by boiling or otherwise the oil from all blubber and from the head and the tongue and, in addition, from the tail as far forward as the outer opening of the lower intestine.
  2. The provisions of this sub-paragraph shall apply only to such carcases or parts of carcases as are not intended to be used for human food.

  3. Every factory, whether on shore or afloat, used for treating the carcases of whales shall be equipped with adequate apparatus for the extraction of oil from the blubber, flesh and bones.
  4. In the case of whales brought on shore, adequate arrangements shall be made for utilising the residues after the oil has been extracted.

Article 7. Gunners and crews of whaling vessels shall be engaged on terms such that their remuneration shall depend to a considerable extent upon such factors as the size, species, value and yield of oil of whales taken, and not merely upon the number of whales taken, in so far as payment is made dependent on results.

Article 8. No vessel of any of the High Contracting Parties shall engage in taking or treating whales unless a licence authorising such vessel to engage therein shall have been granted in respect of such vessel by the High Contracting Party, whose flag she flies, or unless her owner or charterer has notified the Government of the said High Contracting Party of his intention to employ her in whaling and has received a certificate of notification from the said Government.

Nothing in this article shall prejudice the right of any High Contracting Party to require that, in addition, a licence shall be required from his own authorities by every vessel desirous of using his territory or territorial waters for the purposes of taking, landing or treating whales, and such licence may be refused or may be made subject to such conditions as may be deemed by such High Contracting Party to be necessary or desirable, whatever the nationality of the vessel may be.

Article 9. The geographical limits within which the articles of this Convention are to be applied shall include all the waters of the world, including both the high seas and territorial and national waters.

By section 51(x) of the Constitution the Commonwealth Parliament may make laws for the peace, order and good government of the Commonwealth with respect to fisheries in Australian waters beyond territorial limits. I think, therefore, that the Commonwealth could, in pursuance of the power given by section 51(x), enact laws relating to fisheries which exist in waters beyond such waters as are within the territorial limits of the Commonwealth.

In Croft v. Dunphy (48 T.L.R. 652) the Privy Council stated, at p. 653, ‘Whatever be the limits of territorial waters in the international sense it has long been recognised that for certain purposes, notably those of police revenue, public health and fisheries, a State may enact laws affecting the seas surrounding its coasts to a distance seaward which exceeds the ordinary limits of its territory’.(1)

In Responsible Government in the Dominions (Keith) Vol. 1, page 331, it is stated that the right of extra-territorial legislation to some extent must be regarded as inherent in the Parliaments of the Dominions, though it cannot be said that this extent is capable of exact definition. Reference is made to the powers conferred by the Commonwealth Constitution to legislate with respect to fisheries, lighthouses, light-ships, beacons and buoys, external affairs, immigration, emigration and influx of criminals.

Placitum (x) of section 51, it will be noted, limits the powers of the Commonwealth Parliament to legislate on the subject of fisheries to fisheries in Australian waters.

No exact definition has been given of the expression ‘Australian waters’, and the area in respect of which legislation on the subject of fisheries would be effective is a matter of some doubt.

In this connection, consideration should be given to the position which has arisen out of the declaration of British sovereignty over certain islands and territories in the Antarctic seas, and the handing over of those islands and territories to the Commonwealth.

Upon the acceptance of these islands and territories as a territory under the authority of the Commonwealth, the Commonwealth will have power to legislate not only as regards these islands and territories and the territorial waters thereof–using the expression ‘territorial waters’ in the narrow sense–but probably also in water adjacent thereto and outside the three-mile limit.

In view, however, of the fact that the territory in question is distant at least 2,000 miles from Australia, I do not think it could be contended that the Commonwealth has, or will, when it accepts the territory, have power to legislate as to fisheries in the whole of the waters between the territorial waters of Australia and those of the Antarctic Islands and Territories.

In expressing this opinion I have not overlooked the fact that the Parliament of the Commonwealth has power to legislate with respect to ‘External Affairs’. The extent of that power is, however, at the present time, somewhat uncertain.

The question as to how far from the coast of Australia Commonwealth legislation concerning whaling would operate seems to be a matter which can be definitely determined only upon a decision of some competent judicial authority.

In view of the limitation contained in placitum (x) to waters beyond territorial limits, it seems that any legislation required to deal with whale fishing within the territorial limits of the Commonwealth must be enacted by the States.

At the same time, I suggest that this is a matter which the States might fairly be asked to refer to the Commonwealth under section 51(xxxvii) of the Constitution. The subject is in its nature one which cannot be adequately dealt with except by one authority, especially as, in certain cases, doubt may arise as to whether a particular act has been done within or beyond territorial waters.

I suggest, therefore, that before the States are asked to legislate on any particular lines, they should be approached in order that it may be ascertained whether they are prepared to refer this power to the Commonwealth.

[Vol. 26, p. 110]

(1) [1933] AC 156 at 162.