Opinion Number. 1667



Key Legislation

Air Force Regulations 1927 regs 160, 439: Defence Act 1903 s 72: Offences Against Customs and Excise Laws Act 1735 (U.K.) (9 Geo. II c. 35): Constitution covering cl 5, s 51(vi): Australian Military Regulations reg 1251: Air Force Act 1923

The Secretary, Department of Air

The Secretary, Department of Air, has forwarded the following memorandum to me for advice:

  • Air Force Regulation 439 prescribes as follows:
  • A ship, boat, aircraft or person shall not come or remain within any area declared by proclamation to be an air fighting, gunnery, bombing or similar practice area whilst any such practice is in progress, or remain in any position so as to obscure such practice.

  1. It is desired to provide Air Gunnery and Bombing Ranges over land and sea areas in the vicinity of Evans Head, on the coast of New South Wales, and, to enable the necessary practices to be carried out, extensive sea areas should be included in the Ranges. The sea areas proposed and considered necessary for that purpose extend for a distance of approximately ten miles eastwards from the coast. A plan showing the proposed areas is attached for your information (and return).
  2. As such an area includes waters outside the territorial limits, advice is desired as to whether the Proclamation to be issued can include such waters and at the same time be effective as to the whole area.
  3. If the reply is in the negative, may advice be furnished, please, as to what action (if any) might be taken to ensure that, as far as possible, the Commonwealth will be protected in the use of the Ranges which are considered necessary for the purposes of the practices which it is desired to undertake.
  4. Action would be taken by means of Notices to Mariners to notify the sea areas over which the practices would be carried out, but this Department is in doubt as to the effectiveness of such notice which covers any area which is outside territorial waters.
  5. As the proclamation of the areas is urgently necessary to enable training to be carried out, it would be appreciated if early advice in the above matters can be furnished.

In order to advise upon this matter, reference is necessary to regulations 160 and 439 of the Air Force Regulations, which read as follows:

160. Any person who contravenes any provision of these Regulations shall, when no other penalty is provided, be liable to a penalty not exceeding Ten pounds for each offence.

439. A ship, boat, aircraft or person shall not come or remain within any area declared by proclamation to be an air fighting, gunnery, bombing or similar practice area whilst any such practice is in progress, or remain in any position so as to obscure (sic) such practice.

Regulation 439 is in similar terms to section 72 of the Defence Act 1903–1939 and in Opinion 46 of 19221 my predecessor advised as follows:

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 3 mile limit of ships whose first port of clearance and port of destination are not in the Commonwealth.

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.II Cap.35) assumed for certain revenue purposes a jurisdiction of four leagues from the coasts by prohibiting foreign goods being transhipped 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 Int. Law Dig.i. 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 legislation 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.

The power of the Commonwealth Parliament to enact laws having extra-territorial effect is undoubted but the question whether the Air Force Act 1923 and the Regulations thereunder are intended to have extra-territorial effect is not clear. Having regard to the Opinion quoted above, I think it may be assumed that a valid proclamation may be issued under regulation 439 in respect of an area beyond the territorial limits of the Commonwealth. A convenient opportunity should, however, be taken to amend regulation 439 so as to put the matter beyond doubt.

A further question arises as to the persons who are required to comply with regulation 439. In this connexion covering clause 5 of the Commonwealth of Australia Constitution Act is relevant; it reads as follows:

5. This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

Although, therefore, the operation of regulation 439 may extend beyond the territorial limits, the only persons who are bound to obey it are the people of the Commonwealth and persons on board the ships on which the laws of the Commonwealth are in force. Persons on board other ships are not bound to comply with the regulation.

I desire to add that where a ship, boat or aircraft acts in contravention of regulation 439, it is not clear who has been guilty of an offence. It is suggested that this should also be made clear by a suitable amendment.

The penalty provided by regulation 160 appears to be light in comparison with the penalty provided under section 72 of the Defence Act.

[Vol. 33, p. 249]

(1) Opinion No. 1209.