Opinion Number. 1847



Key Legislation

CONSTITUTION ss 51(i), (vi), (x), (xxix), (xxxix), 92, 109, 122: WHALING ACT 1935: QUEENSLAND PEARL SHELL AND BECHE-DE-MER FISHERIES ACT 1888 (Federal Council of Australasia): FEDERAL COUNCIL OF AUSTRALASIA ACT 1885 (UK) s 15

The Secretary, Department of Commerce and Agriculture; The Secretary, Department of the Treasury

The Secretary, Department of Commerce and Agriculture, has forwarded the following memorandum to me for advice:

The matter of the establishment of a Whaling industry in Australia has been receiving the attention of certain interested Commonwealth Departments for some years.

The present position is that two alternative proposals have been developed by this Department (Fisheries Division) and are at present the subject of discussion with the Treasury. Each envisages Commonwealth participation in relation to the planning and development of the project, including the provision of the necessary finance for the procurement of ships and equipment, the erection of buildings and the management and running of the enterprise for a period to be determined.

The question of the Commonwealth’s constitutional and legal position in the matter has been raised and your advice is requested on this aspect.

The proposals may be broadly stated as follows:

(1) The Commonwealth would erect and operate a shore station in Western Australia and build or buy the necessary whale chasing vessels. The vessels would catch the whales and bring them to the shore station for treatment. The processing treatment would result in the production of oil, meat meal, fertiliser, etc. which would be sold for use in Australia and/or for export (entirely for export if necessary).

The vessels would generally operate in waters outside the three mile limit.

(2) The Commonwealth would acquire and operate chaser vessels and a factory ship. The whales caught by the chaser vessels would be taken aboard the factory ship and processed there. The processing operation would normally be, and could always be, if necessary outside the three mile limit.

The processed products would be brought to an Australian port for sale for use in Australia and/or export.


(2)  The Secretary, Department of the Treasury, has forwarded to me for advice a memorandum, relating to the same subject, in the following terms:

Although the Department of Commerce and Agriculture has sought an advising on the general question of the Commonwealth’s powers to legislate for the establishment of a whaling industry to be operated by the Government, I consider it necessary to look into the specific details of these proposals from the constitutional viewpoint as well as examine the extent to which the industry would be subject to State law relating to fisheries and the operation of a shore station (if any). Probably, that Department has explained that two proposals are being considered by the Government, namely:

(a) the establishment of a shore station in Western Australia on which chasers, operating inside but more generally outside territorial waters, would be based and which would produce the whale oil and other products (it could therefore be regarded as a factory as well as a ships’ base);

(b) the working of a factory ship which would process at sea, either within or without the three mile limit, the carcases caught by chasers operating in the circumstances outlined in (a) above.

2.  Furthermore, the Government has not yet considered whether, if it is decided to proceed with the establishment of the industry, the responsibility for its operation will be placed in the hands of a government instrumentality or a company, registered under State or Commonwealth law, in which the Commonwealth would have a majority shareholding, the balance of the capital being subscribed by private interests.

3.  In my opinion, it would be difficult to argue that legislation either providing for the establishment and operation of the industry under the control of a government instrumentality or providing for the appropriation of money for this purpose or merely for the subscription of share capital could be defended on the ground that such legislation was an exercise of the defence power. It seems to me that constitutional support has to be found under some other head of power.

4.  It would be appreciated if, in furnishing your general advising on the Commonwealth’s powers in this matter, you would keep in mind, where relevant, the two alternative methods of operating the industry, namely, an ordinary company or a government instrumentality, as well as the two alternative proposals for the establishment of the industry. Would you also please include in your general advising opinions on the following specific points:

(a) whether whaling can be regarded as fishing;

(b) whether the industry would be subject to State law relating to fisheries, whaling or the operation of a shore-based factory, e.g., licences;

(I assume that such would be the case, if the Commonwealth were to join with private interests in the formation of a company registered either under State or Commonwealth law, no matter what the general constitutional position was).

(c) whether the Commonwealth has power to establish a monopoly or to control entry into the industry by the refusal of licences to private interests who threaten to operate in competition with the Commonwealth’s industry;

(d) whether the Parliament has power to make an appropriation of money in a general appropriation act for the purpose of subscribing capital to an Australian company formed to operate a whaling industry.

(3)  My conclusions on the matters on which advice is asked may be stated summarily as follows:

(i) There are reasonably strong grounds for the view that the Constitution would enable the Commonwealth to expend moneys in engaging in an undertaking for catching whales in Australian waters beyond the three mile limit, for the processing of the whales on ship or on shore and for the commercial disposition of the proceeds of the processing.

(ii) Conclusion (i) is equally applicable to the expenditure of money in acquiring a controlling interest in a company to be formed to engage in an undertaking of the kind mentioned.

(iii) The Commonwealth, in conducting such an undertaking, could not regularly engage in catching whales within the three mile limit. The constitutional capacity of the Commonwealth to hold a controlling interest in a company regularly engaging in such operations within the three mile limit is also open to doubt, and it may be that a company in which the Commonwealth held such an interest could be legally restrained from regularly engaging in such operations within the three mile limit.

(iv) It cannot be asserted with confidence that the Commonwealth Parliament could exempt a shore station established in accordance with the foregoing conclusions (whether by the Commonwealth or by a company in which the Commonwealth had a controlling interest) from the operation of State laws relating to the licensing or conduct of such stations.

(v) The Commonwealth Parliament could give the Commonwealth a monopoly in whaling in Australian waters beyond the three mile limit.

(4)  I proceed to amplify, and give some of my reasons for, these conclusions.

(5)  The memorandum of the Department of Commerce and Agriculture does not state precisely in what waters the whales are to be sought, but I understand that, generally speaking, the intention is to obtain the whales in coastal waters surrounding Australia, although there is a suggestion that the vessels might be sent in odd years to the Antarctic in order to ‘rest’ coastal waters. There is also a suggestion in the Treasury memorandum that whales may possibly be taken both inside and outside territorial limits, though more generally outside.

(6)  The provision of money by the Commonwealth for the purpose of a whaling scheme, whether operated by the Commonwealth or by a company in which the Commonwealth would have a financial interest, would involve legislation appropriating money for the purpose. Unless a statutory authority is to be established to conduct the enterprise, it may very well be that no legislation beyond the appropriation would be necessary.

(7)  It is established by the Pharmaceutical Benefits Case (71 C.L.R. 237) that a Commonwealth Act appropriating moneys is valid only if the moneys are appropriated for a purpose which is indicated by the Constitution itself as being a purpose of the Commonwealth. Generally speaking, this means that it must be a purpose in respect of which the Parliament has express power to make laws, although it is plain that the Commonwealth has executive and judicial purposes as well as legislative purposes. The very existence of the Commonwealth, apart from any legislation or legislative power, creates some purposes of the Commonwealth. It is necessary, therefore, to consider whether the carrying on of an undertaking for the catching of whales in the waters mentioned, for the processing of the catch either on a factory vessel or at a shore station, and for the sale of the products is a purpose of the Commonwealth in the sense indicated.

(8)  The most obviously relevant legislative power is the power conferred by placitum (x) of section 51 of the Constitution to make laws with respect to ‘fisheries in Australian waters beyond territorial limits’.

(9)  The application of this power is dependent, in the first place, upon the scope of the expression ‘fisheries’ in relation to whales. I think it may be accepted that this expression has the same meaning in relation to whales as it has in relation to fish ordinarily so called. In opinion No. 39 of 1938, furnished to the Department of External Affairs, the late Sir George Knowles gave illustrations of Imperial Statutes in which the term ‘fisheries’ was used in relation to whaling.1

(10)  The word ‘fisheries’ has more than one meaning. The primary meaning of the word ‘fishery’ in a legal context appears to be the right to take fish (Wharton’s Law Lexicon, 14th Edition, page 420). The same lexicon indicates a secondary sense, in the following statement—‘The term is also applied to fishing grounds, or parts of the sea where at certain seasons numbers of fish are taken’. The word therefore has an abstract and a concrete meaning. The Oxford English Dictionary gives yet a third sense of the term ‘fishery’, namely, ‘the business, occupation, or industry of catching fish, or of taking other products of the sea or rivers from the water’. It should be noted that the illustrations given of the use of the word in this last sense are all illustrations of the use of the word in the singular.

(11)  In ascertaining the meaning of ‘fishery’ for present purposes, it is relevant to consider the meaning which was attributed to the word in Australia before federation. The terms of placitum (x) are clearly founded on section 15(c) of the Federal Council of Australasia Act, 1885, an Act of the Imperial Parliament establishing the Federal Council of Australasia. That section gave the Council legislative authority in respect of ‘fisheries in Australasian waters beyond territorial limits’. In pursuance of this power the Council passed the Queensland Pearl Shell and Beche-de-Mer Fisheries (Extra-territorial) Act of 1888. That Act contained the following definition: ‘“Pearl Shell and Beche-de-Mer Fishery” or “The Fishery”—The business of diving for, collecting, preparing, storing, or carrying to or from any place within the Colony of Queensland or its dependencies, pearl oysters or pearl oyster shells, or the sea-slug commonly called beche-de-mer …’. An Act of 1889 contained a similar definition in relation to the Colony of Western Australia.

(12)  It would appear, therefore, that the term ‘fishery’ was understood at the time the Constitution was framed as being wide enough to cover the business of fishing. It is not so clear, however, whether the plural word ‘fisheries’ was understood in a corresponding sense. It would appear also that it related to sea products other than fish in the primary biological sense.

(13)  The principles to be applied in considering the question whether the power with respect to fisheries would enable the Commonwealth to pass a law authorizing the Commonwealth itself or an authority established by it to engage in fishing on a commercial basis are to be found in the Airlines Case (71 C.L.R. 29). In that case the High Court held unanimously that, under its power with respect to trade and commerce, the Commonwealth could establish an authority to engage in trade and commerce. The Court rejected the view that the power was confined to regulating existing trade and commerce.

(14)  Latham C.J. said (at pp. 57–58) that, in the case of some of the subjects with respect to which the Commonwealth Parliament is given power to legislate under section 51, it is plain that the power is a power to make laws with respect to the conduct of persons other than the Commonwealth or any agency of the Commonwealth, but that, in the case of other subjects, it is plain that the nature of the subject is such as to entitle the Commonwealth (by itself, or by a Commonwealth agency) taking part in the very subject matter itself. His Honour gave a number of illustrations of both categories of powers, but did not mention placitum (x) in either category.

(15)  Dixon J., at page 81, in rejecting the argument that the trade and commerce power extended only to the regulation of independently existing trade and commerce, said that the argument ‘plainly ignores the fact that it is a Constitution we are interpreting, an instrument of government made to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances.’. His Honour continued in relation to this rejected argument—‘It confuses the unexpressed assumptions upon which the framers of the instrument supposedly proceeded with the expressed meaning of the power. A law authorising the government to conduct a transport service for interstate trade, whether as a monopoly or not, appears to me to answer the description, a law with respect to trade and commerce amongst the states.’.

(16)  The question, therefore, is whether a law authorizing the Commonwealth or a Commonwealth authority to engage in whaling would be ‘a law with respect to fisheries’. If the word ‘fisheries’ is used in the Constitution in one or more of its abstract senses, as denoting rights or activities in connexion with fishing, the reasoning of the High Court in the Airlines Case appears to be applicable. If, however, the word is confined to its concrete meaning as donating fishing grounds, the reasoning is not so clearly applicable, but on the other hand, is not in my opinion, clearly inapplicable. In my opinion, the answer to the question mentioned in the first sentence of this paragraph cannot be said to be free from doubt, but the Commonwealth would be justified in acting on the view that the answer to the question is in the affirmative. It follows that the establishment of whaling operations in Australian waters beyond territorial limits by the Commonwealth itself is a ‘purpose of the Commonwealth’ for which moneys can validly be appropriated, and, in my opinion, investment in a company formed to conduct similar operations would equally be a purpose of the Commonwealth.

(17)  In my Opinion, therefore, the Commonwealth could validly appropriate moneys or pass other legislation for the purpose of enabling the Commonwealth to engage in, or to acquire, a financial interest in a company formed to engage in, the catching of whales in Australian waters beyond territorial limits. I am further of opinion that the scope of the enterprise (whether conducted by the Commonwealth or by a company) could validly extend to the treatment of the catch and the sale of the products of the treatment, irrespective of whether the treatment were carried out at sea or on shore and whether the products were sold in interstate or overseas transactions or otherwise.

(18)  In arriving at the conclusions stated in the last preceding sentence, I have taken into consideration the decision of the Privy Council in Attorney-General for Canada v. Attorney-General for British Columbia (1930 A.C.111).

(19)  In that case the Privy Council held that the power of the Dominion to make laws in relation to ‘sea coast and inland fisheries’ did not authorise a law for the licensing of fish canneries. Their lordships were of opinion that trade processes for the treatment of fish when caught could not be brought within the scope of the subject ‘sea coast and inland fisheries’, nor were they satisfied that the licensing of canneries was ‘necessarily incidental to effective legislation’ under the subject ‘sea coast and inland fisheries’. It is not necessary, however, for present purposes to consider whether the Commonwealth’s power in respect of fisheries would cover legislation for the general regulation of factories, whether established by the Commonwealth or not, for the processing of whales obtained in Australian waters outside the three mile limit. It is sufficient to say that, on the basis of the view that the fisheries power covers legislation authorizing the Commonwealth to engage in whaling in these waters, legislation authorizing the treatment and sale of the catch would, in my opinion, be covered either by the fisheries power itself or as being legislation incidental to the enactment under that power of the legislation relating to the whaling itself. The judgement of the Privy Council in the Canadian case referred to is not, in my opinion, inconsistent with this view. The question of exemption from State law is, however, another question which I will consider later (paragraphs 27 and 28 below).

20.  The above advice refers to whaling ‘in Australian waters beyond territorial limits’. The definition of these waters involves an inner and an outer limit. As regards the inner limit, the three mile limit should, in my view, be regarded as the limit of the territorial waters on the coast of the States for present purposes.

(21)  I do not think that the Commonwealth could validly engage in regular whaling operations within the three mile limit. (Whether a legal challenge would be likely is another question). This does not mean that there would be anything unconstitutional in occasional incursions, in pursuit of whales, inside the three mile limit. The question whether the Commonwealth could validly hold shares in a company formed for the purpose of engaging in whaling both inside and outside territorial limits is more difficult. Assuming that the whaling within territorial limits was of a substantial character, I could not confidently answer this question in the affirmative.

(22)  As regards the outer limit of ‘Australian waters’, nothing definite can be laid down, as there are no authorities on the question. It seems clear, however, that ‘Australian waters’ extend for many miles from the coast, and that this limit will not prevent any practical difficulty to whaling in coastal waters only. In my opinion, there would be nothing unconstitutional in an occasional operation in Antarctic waters if such operations were merely incidental to the main undertaking. Operations in waters of Australian Territory in the Antarctic would, I think, be authorised under the power to make laws for the government of Territories (section 122).

(23)  I should, perhaps, add that I do not think the Commonwealth’s power with respect to trade and commerce with other countries and among the States is of any substantial assistance. Production of goods for the purpose of their sale is not part of the concept of trade and commerce (Hammer v. Daganhart, 247. U.S. 251;2 Matthews v. Chicory Marketing Board (Victoria) 60 C.L.R. 263), nor could it, in my opinion, be successfully argued that the catching and treatment of the whales was a matter incidental to engaging in interstate and overseas trade in the products thereof. From the constitutional point of view, the trade would, I think, be incidental to the catching and treatment. As Rich J. said in Attorney-General for Victoria v. the Commonwealth (52 C.L.R. 533 at page 563) ‘In all cases where incidental powers are relied upon there is a danger of the cart being harnessed before the horse.’.

(24)  Other conceivable sources of power are the ‘defence’ power (section 51(vi)) and the ‘external affairs’ power (section 51(xxix)). However, in the absence of information as to the possible connexion of whaling with the subject matter of these powers, I do not propose to examine their relevance for present purposes.

(25)  Advice is also desired as to whether the industry would be subject to ‘State laws relating to fisheries, whaling or the operation of a shore-based factory, e.g. licences’.

(26)  In the first place a State law would not extend to the Commonwealth itself unless on its true construction it purported to bind the Crown in right of the Commonwealth. (This principle would not apply in relation to a company in which the Commonwealth was merely a shareholder).

(27)  Subject to what I have said in the last preceding paragraph, an enterprise for catching and treating whales and selling the products would, within the territorial jurisdiction of a State, be subject to the laws of the State except to the extent (if any) to which those laws were inconsistent with a valid Commonwealth law (section 109 of the Constitution).

(28)  The Commonwealth Parliament could not, in my view, override the laws of a State relating to whaling within the territorial waters of the State and the treatment of the products of such whaling. But as regards a shore station to be established in the State as a base and factory in connexion with whaling beyond territorial limits (being a station operated by the Commonwealth or by a company in which the Commonwealth had a controlling interest), I am unable to state positively that Commonwealth law could validly make unlimited provision for and in relation to the establishment and conduct of the station, with the result that State laws otherwise applicable would be overridden. This difficulty arises from the possibility of its being held that, as the shore station itself is merely incidental to whaling outside territorial limits, any provision exempting it from State licensing and other laws would, in effect, be a provision incidental to something which is itself incidental and, therefore, beyond power. But I do not think that the Commonwealth would, in all cases, be powerless to protect itself against laws which a State may choose to enact. For instance, a State law preventing the bringing into State territorial waters of whales caught by a Commonwealth undertaking in Australian waters outside the three mile limit could be overridden by a Commonwealth law—such a Commonwealth law being incidental to the enactment of a law authorising the Commonwealth to engage in whaling in those Australian Waters.

(29)  Another question asked is ‘whether the Commonwealth has power to establish a monopoly or to control entry into the industry by the refusal of licences to private interests who threaten to operate in competition with the Commonwealth’s industry’. In my opinion, so far as whaling in Australian waters beyond territorial limits is concerned, the Commonwealth Parliament could exclude all or any persons subject to its jurisdiction, other than itself, from engaging in whaling. Section 92 of the Constitution (which was successfully invoked before the High Court against the monopoly aspects of the Australian National Airlines Act and the Banking Act) would not be relevant to an Act which did not deal with inter-State trade except in the remote sense that it prevented persons from obtaining commodities with which they might engage in inter-State trade. In Matthews v. Chicory Marketing Board (Victoria) (60 C.L.R. at page 271), Latham C.J. said: ‘But there is no inter-State element in growing an article in primary industry or manufacturing an article in secondary industry, and legislation which deals only with producing or manufacturing is not in itself legislation of a character which restricts or limits the freedom of inter-State trade.’.

(30)  For the purposes of the principle stated in this passage, the catching of whales is, in my opinion, indistinguishable from primary production.

(31)  It may well be that the legal means of creating such a monopoly already exists in the licensing provisions of the Whaling Act 1935, but I do not think it necessary to express a definite view on that point at this stage.

(32)  I have advised as far as I think proper at this stage having regard to the fact that the circumstances set out in the memoranda for advice are largely hypothetical and I have endeavoured to set out my views, upon the basis of the information supplied, on some of the legal matters to which attention would need to be given in considering the question of the establishment of a whaling undertaking as proposed.

[Vol. 38, p. 245]

1 Opinion No. 1627.

2 A handwritten notice in margin of original opinion is as follows: ‘This case has now been overruled. See US v Darby 312 U.S. 100’.