Opinion Number. 523

Subject

FISHERIES IN AUSTRALIAN WATERS BEYOND TERRITORIAL LIMITS EXTENT OF COMMONWEALTH POWER OVER ALIENS ENGAGED IN : WHETHER POWER DELEGABLE TO STATES : WHETHER PARTICULAR DELEGATION AMOUNTS TO PREFERENCE TO ONE STATE OVER ANOTHER STATE

Key Legislation

CONSTITUTION, ss. 51 (i), fx), (xix), (xxxix), 99

Date
Client
The Minister for External Affairs

The Minister for External Affairs desires to be advised whether the Common-wealth Parliament has power to legislate in the manner desired in the following com-munication from the Premier of Western Australia:

I beg to draw your attention to the fact that last year the Parliament of this State, by Act No. 45 of 1912, amended and consolidated the Statutes relating to the Pearl Shell Fisheries. This Act (known as the Pearling Act 1912) came into force on 1 April 1913. A copy is attached hereto.

By an act of the Federal Council of Australasia (52 Vic. No. 1), known as The West-ern Australian Pearl Shell and Beche-de-mer Fisheries (Extra-Territorial) Act of 1889, the Statutes consolidated in the Pearling Act 1912 were given exterritorial operation. The Act of the Federal Council will be found printed in Vol. VII of the Victorian Statutes(1),page 1005.

The Crown Law Officers advise me that the new Act is an Act amending the Pearl Shell Fishery Acts within the meaning of the Federal Council Act, and has, therefore, ex-territorial operation; but it appears that the terms of the Federal Council Act are not wide enough to give the Government of this State an effective control over the whole of the Western Australian pearl shell industry.

It will be observed that the Federal Council Act applies only to British ships and boats attached to British ships. Therefore any person, whether a British subject or an alien,might use the port of Broome as his base, and fish for pearl shell outside the three-mile limit without being in any way bound by the Western Australian pearling legislation, pro-vided only he took care not to use a British ship.

Year by year the industry is being carried on more and more in exterritorial waters: consequently an easy means of evading the Act is open, and it is in order that this opening may be closed that I am now communicating with you.

It is considered by this Government that every person, whether a British subject or not, who uses a Western Australian port as the base of pearling operations, should be sub-ject to the Western Australian law. At present the alien, though debarred by our Act from obtaining a licence, is in a better position than the British subject, for he can fish without any licence outside the three-mile limit, whereas the British subject has to obtain one. The curious result follows that if a British subject wishes to place himself on an equality with the alien he must hire a foreign ship for the purpose.

A remedy for this state of things is needed urgently. I beg to request, therefore, that you will cause legislation to be introduced into the Federal Parliament to give the Govern-ment of this State full control over the pearling industry carried on in waters adjacent to Western Australia beyond the three-mile limit.

In making this request I conceive that I am not asking for anything beyond the powers of the Commonwealth Parliament. Those powers would appear to be ample for the pur-pose, and even aliens using our territory might, I am advised, be rendered subject to the local law by legislation framed on lines somewhat similar to those which were approved by the Privy Council in the case of Peninsular and Oriental Steam Navigation Company v. Kingston [1903] A.C. 471.

Should the Commonwealth Government decide to entertain the proposal made, I should esteem it a great favour if you could transmit me a copy of the draft of the Bill which will be introduced to carry your decision into effect.

Under section 51 (x) of the Constitution the Commonwealth Parliament has power to legislate with regard to fisheries in Australian waters beyond territorial limits.

Though section 51 (x) of the Constitution is not limited in terms to British ships, and a law relating to exterritorial fisheries and extending in terms to foreign ships and foreign subjects would be enforceable in British courts, yet other nations, under the rules of international law, would not recognise the power of the Parliament of the United Kingdom to legislate, or to empower the Commonwealth to legislate with re-gard to foreign ships and foreign subjects on the high seas, and any such attempt would lead to international complications.

I think however that Parliament has power, incidentally to its power over fisheries in Australian waters beyond territorial limits, to impose conditions upon all ships, Bri-tish or foreign, as to the use of Australian ports as a base of operation for such fisheries. Moreover, the Commonwealth Parliament has power to legislate regarding aliens who come into the Commonwealth.

Under this power the Parliament could prevent aliens from using our ports for any purpose or may allow them to use the ports, subject to such conditions and restrictions as it may impose. It is, therefore, competent for the Commonwealth Parliament to pro-vide that such aliens shall not use Australian ports for the purpose of engaging in fisheries in Australian waters beyond territorial limits unless they comply with the con-ditions imposed upon British subjects engaged in those fisheries.

I think therefore that the Commonwealth Parliament has power, in the way men-tioned, to exercise some control over the fisheries, even as regards foreign subjects and ships, so far as Australian ports are used as a base.

What the Premier of Western Australia asks for, however, is Federal legislation 'to give the Government of this State full control over the pearling industry carried on in waters adjacent to Western Australia beyond the three-mile limit'.

Probably the Commonwealth Parliament could, if it thought fit to do so, delegate to the Western Australian Parliament the power to make any law with regard to these fisheries which the Commonwealth Parliament could itself make.

It appears to me however that, unless this were specially guarded against, such a delegation might easily lead to difficulties in regard to section 99 of the Constitution, which forbids the Commonwealth to give any preference, by any law or regulation of trade, commerce, or revenue, to one State or part of the Commonwealth over another State or part of the Commonwealth. The actual operation of catching fish is not trade or commerce, but the operations of a fishing enterprise may touch trade and commerce at many points; and if the delegation of power covered any of these, the State legis-lation in pursuance of the delegated power might lead to difficulties of the kind sug-gested above.(2)

[Vol. 11, p. 475]

(1)Published in 1890.

(2)In response to this openion the Minister for External affairs submitted the following minute:

it is clear that the state has not power to regulate the use of its ports by vessels for purposes not connected with trade and commerce with other countries or among the states?

if yes, the reply might be that, as the excercise of the power, unless very clear and limited, would involve the difficulties suggested in the openion, it would be unexpedient to delegate it'.

Mr. Garran,secretary,Attorney-General's Department, on 25 November 1913[Vol. II, p.494],replied,
'in my openion it is not clear that the State has not power to legislate in the direction indicated'.