EXTRA TERRITORIALITY WHETHER COMMONWEALTH HAS JURISDICTION OVER ACTS COMMITTED ON HIGH SEAS OUTSIDE TERRITORIAL WATERS : WHETHER COMMONWEALTH HAS POWER TO CREATE OFFENCE OF BRINGING SHIP INTO PORT WITH SEALS TAMPERED WITH
CONSTITUTION, covering cl.5: CUSTOMS ACT 1901, s. 192
The Consul-General for France expresses the opinion that certain provisions of the Customs Act 1901 extend the jurisdiction of the Commonwealth beyond the limits fixed by international custom, and by the Territorial Waters Jurisdiction Act 1878, and that it purports to place under the jurisdiction of the Commonwealth acts committed on board French boats (especially tampering with seals) on the high seas outside the territorial waters of the Commonwealth.
This is a misapprehension. The Federal Parliament is powerless to make its laws operate outside territorial limits, except on board British ships 'whose first port of clearance and whose port of destination are in the Commonwealth'. In the case of a foreign ship (or even a British ship voyaging to or from a port outside the Commonwealth) the Federal Parliament cannot declare anything to be an offence which is done outside its territorial jurisdiction; and there is nothing in the Act which purports to do this.
M. Biard d'Aunet seems to refer particularly to section 192 of the Act, which however does not bear the interpretation contemplated by him. Like every other section of the Act, it must be read subject to the well-understood limitation that it applies only to persons within the jurisdiction. The section creates two kinds of offences: (1) tampering with fastenings or seals after arrival at one port of the Commonwealth and while bound to another; (2) bringing a ship into a port of the Commonwealth with fastenings or seals so tampered with. The tampering is clearly not an offence unless committed within the jurisdiction; but bringing the ship into port with the fastenings or seals tampered with is necessarily an offence committed within the territorial limits of the Commonwealth, and over which the Commonwealth has full jurisdiction.
[Vol. 1, p. 129]