CONTINENTAL SHELF
RIGHTS IN RELATION TO CONTINENTAL SHELF: POSSIBLE CLAIM BY AUSTRALIA TO CERTAIN RIGHTS IN RELATION TO CONTINENTAL SHELF: WHETHER WATERS COVERING CONTINENTAL SHELF CORRESPOND TO ‘AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS’: MEANING OF ‘AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS’
CONSTITUTION s 51(x)
I refer to your memoranda dated 16 February, 1949, and 26 June, 1950, concerning the abovementioned Bill.1 My comments are sought on the suggestion that Australia should, by Proclamation, assume rights over the continental shelf, as has been done by the United States.
(2) This suggestion raises questions of validity both from domestic constitutional and from the international point of view. I do not think, for instance, that it can be assumed that the waters covering the continental shelf correspond necessarily with the ‘Australian waters beyond the territorial limits’, in respect of the fisheries within which the Parliament of the Commonwealth may make laws by virtue of paragraph (x) of section 51 of the Constitution. That is to say, in some places the waters of the continental shelf may extend beyond Australian waters, in the constitutional sense while in other places Australian waters in the constitutional sense may extend beyond the waters which cover the continental shelf.
(3) It is by no means clear that the analogy to the United States is valid. The action taken by the United States may have been taken for the purposes of obtaining jurisdiction which would not otherwise have existed (compare the third recital in the Proclamation). In Australia, the Constitution gives the Commonwealth legislative power with respect to fisheries in Australian waters beyond the territorial limits and it is not clear that the issue of a Proclamation assuming rights over the continental shelf would either add to or detract from that power.
(4) The question whether Australia should assume rights over the continental shelf is an important one of policy which, I think, requires further consideration by the Commonwealth before it could properly be discussed at a Commonwealth–State conference such as that referred to in the last paragraph of your memorandum dated 26 June, 1950.
(5) I am attaching a copy of a memorandum written to the Secretary, Department of External Affairs, proposing the formation of an inter-department committee to consider the whole question of the continental shelf.2
[Vol. 39, p. 302]