The Comptroller-General of Customs has forwarded the following minute dated 24/4/34 to me for advice:

• I forward herewith for your information some recent reports and press cuttings received at this office regarding complaints relating to Japanese sampans in Queensland waters.

2. I may mention that at the beginning of last year this Department received reports regarding a Japanese sampan which was believed to be unlawfully operating in Queensland waters. On 21/1/33 this vessel when passing Goode Island was signalled to stop by a Customs Officer but the signals were ignored. Subsequently the vessel was intercepted near Thursday Island and was brought into harbour. Proceedings were taken against the master for a breach of section 59 of the Customs Act and he was fined £10/-/- and costs.
3. Since then a number of complaints have been received regarding Japanese sampans alleged to be operating in Queensland waters.
4. It will be noted that in the Queensland Collector’s report of 13/4/34 he states that up to date there is no good reason to believe that any Japanese vessels are engaged in running contraband or prohibited immigrants, but it is thought that they are calling at unfrequented places on the coast for the purpose of replenishing with wood and water.
5. He also states that North Queensland pearlers have strong reasons to believe that Japanese crews engaged on their vessels are disposing of their shell to the master of a Japanese sampan who places the money to the men’s credit in Japan. Within cutting from the Brisbane ‘Daily Standard’ of 19/4/34 also deals with this aspect.
6. The Collector states that practically no pearl shell or trochus shell is fished inside the three mile limit.
7. ‘Fisheries in Territorial Waters’ was one of the subjects discussed at the recent Conference of Commonwealth and State Ministers on constitutional matters and it would appear that the States are sympathetic with certain proposals to amend the Constitution so as to give the Commonwealth greater powers to deal with the question.
8. At the present time the position caused by the operations of Japanese vessels in Queensland waters is rather difficult. The matter appears to be one which concerns not only this Department, but also the departments of Interior and Defence. The State Authorities are also concerned.
9. It is desired to obtain advice as to what action could be taken by the Commonwealth under present conditions, and particularly on the following points:
1. What action could be taken by the Customs or other Commonwealth Department against Japanese vessels found to be operating for a pearl or trochus shell in territorial waters;
2. What is the limit of territorial waters;
3. Could any action be taken in respect of operations outside such limit;
4. What action could be taken by this Department against Japanese vessels which call at places on the Australian coast, which are not proclaimed ports, for the purpose of replenishing with wood and water.

In order to understand more clearly the facts of the case upon which I have been asked to advise, I have had certain inquiries made as to the existing trade in trochus shell fishing, and have ascertained the following:

Truchus niloticus (known in the trade as ‘trochus’ shell) was formerly abundant on the coral reef north of Australia, but through vigorous collecting has become comparatively scarce. It is gathered by hand and the divers can only operate in shallow water near land. Trochus is used for the manufacture of buttons in Japan. I understand that the Japanese are operating around the Philippines, Dutch East Indies, New Guinea and, occasionally, along the Queensland coast. The authorities in the above places are experiencing the same difficulty in dealing with illegal fishing in their territorial waters.

For the purposes of this opinion, I do not propose to make reference to the newspaper articles–some of them perhaps highly coloured–contained in the file. I note from one article that I am stated to have advised recently upon the ownership of the Barrier Reef. This statement is not in accordance with fact.

The question arises as to whether it is the responsibility of the Commonwealth or of the States concerned to police the fishing grounds adjacent to the coast.

The Commonwealth Government has power under section 51 of the Constitution to make laws for the peace, order and good government of the Commonwealth with respect to fisheries in Australian waters beyond territorial limits (pl. X). Within territorial limits, the control of fisheries is at present a matter for the States.

As to the meaning of the expressions ‘Australian waters’ and ‘territorial limits’, attention is drawn to the memorandum on Fisheries in Territorial Waters prepared by Sir Robert Garran for the Conference on Constitutional matters held from 16th to 28th February last, and published in Appendix C to the Report of that Conference, p. 82. From this memorandum, it will be seen that the exact meaning of the expression ‘Australian waters’ is a matter of some doubt, as the expression has never been defined. As regards ‘territorial limits’, however, the opinion is therein expressed that in view of the decision of the Privy Council in Croft v. Dunphy (1933 A.C. 156, 48 T.L.R. 652), the ‘waters within territorial limits’ which by section 51(x) of the Constitution are impliedly excluded from Commonwealth legislative powers, are an undefined but considerable margin of sea adjacent to the Australian coast. In respect of this area, the power to legislate as to fisheries belongs at present to the States exclusively.

I may here point out that in Croft v. Dunphy the validity of section 151 of the Canadian Customs Act, relating to vessels hovering in territorial waters, was in question. That section defines the ‘Territorial waters of Canada’ as including ‘the waters adjacent to the Dominion within three miles thereof in the case of any vessel and within twelve miles thereof in the case of any vessel registered in Canada’. No question of international law was involved in that case as the provision impugned had no application to foreign vessels.

The existing legislation of the States and Territories concerned, as to pearl and trochus fishing, is as follows:

Queensland:

The Pearl-shell and Beche-de-mer Fishery Acts 1881 to 1931 regulates fisheries in the Colony (now State) of Queensland.

The Amending Act of 1913 prohibits any person who has not obtained a certificate of having passed the dictation test from holding a licence to engage in fishing.

In 1931, the provisions of the Act were extended to the taking of trochus shell.

Western Australia:

Fisheries Act 1905–1921

This Act requires all boats to be licensed. ‘Fish’ includes ‘marine animal life’ and ‘Western Australian waters’ are defined as including the sea to three miles from the high water mark and every tidal river, etc.

Pearling Act 1912–1932

Under this Act the State includes its territorial waters, and all boats engaged in pearling must be licensed.

New Guinea:

Fisheries Ordinance 1922–1932

This Ordinance covers pearl-shell, trochus shell, beche-de-mere, etc., and requires all boats to be licensed.

Northern Territory:

Pearling Ordinance 1930–1931

This Ordinance defines ‘North Australia’ as including the territorial waters thereof and requires all ships engaged in pearling to be licensed.

Fisheries Ordinance 1911–1924

This Ordinance provides for the regulation of fisheries in the Northern Territory and covers trepang fishing, but fishing for trochus shell is, apparently, not covered. All boats and persons engaged in trepang fishing must be licensed.

It therefore appears that the States and Territories concerned have the necessary legislation to prohibit illegal fishing in their territorial waters. The meaning of ‘territorial waters’ in this legislation has not been defined, except in the Western Australian Fisheries Act 1905–1921; and, in the absence of any evidence of an attempt on the part of the States to extend the area beyond three miles from the coast, I am of opinion that that distance must be interpreted as marking the limits of the existing State legislation.

It appears that difficulty is being experienced by the States in enforcing their legislation. The enforcement of the laws of the States is primarily a matter for the States to deal with. So far as New Guinea is concerned, I understand that the use of sea-planes for policing the fishing grounds is at present under consideration.

I do not think that there is any power under the Customs Act to deal with the operations of Japanese sampans engaged in illegal fishing in territorial waters. Outside territorial waters, neither the Commonwealth nor a State has at present any powers at all.

The answers to your questions are as follows:

1. The matter is one for the State or Territory within whose territorial waters the vessel is found.
2. I assume this question relates to the meaning of ‘territorial waters’ for the purpose of legislation relating to fisheries. The expression ‘territorial waters’ is usually taken to mean the waters within three marine miles seaward from low water mark, and in the absence of any claim on the part of the States to exercise, as regards ships registered in Australia, jurisdiction over a larger area, the distance of three miles should, in my view, be regarded as the limit of State jurisdiction under existing legislation;
3. As to operations outside the territorial waters, it is not possible for either the Commonwealth or a State to take action. If, however, the Commonwealth legislated upon the subject under the power conferred by section 51(x) of the Constitution, it would be possible for action to be taken by the Commonwealth in accordance with the legislation. The uncertainty of the exact meaning of the expression ‘Australian waters beyond territorial limits’ would create some doubt as to the exact scope of the legislation, not only as to the extreme external limits of the area covered by the legislation, but also as to the internal limits of the area so covered at least as regards ships registered in Australia. This latter fact provides an additional reason for the whole of the sea-fisheries legislation of Australia being in the hands of the Commonwealth;
4. It is an offence for a master of a ship to enter any place other than a port unless from stress of weather or other reasonable cause. (Customs Act section 58). The question as to whether the shipping of wood and water by a vessel at a place other than a port would constitute a ‘reasonable cause’ within the meaning of section 59 is one of fact on which I am unable to advise generally. If the supply of fresh water on a vessel was running low, no offence would, in my view, be committed by the master in replenishing his supply at any suitable place, provided there was not in the immediate vicinity a proclaimed port to which he could resort. Each alleged contravention of section 59 must be considered in light of the circumstances surrounding the particular case. Action might also be taken under the Quarantine Act 1908–1924, s. 20.

Although the matter of the position of the Great Barrier Reef is not specifically referred to in the request for advice, I propose, as the matter is mentioned in the file, to advise in a later opinion on the position of the Reef in relation to questions of legislation concerning fisheries.

[Vol. 27, p. 234]