Opinion Number. 66

Subject

QUEENSLAND'S TERRITORIAL WATERS
EXTENT : WHETHER COMMONWEALTH HAS CONTROL OVER FISHING IN AND BEYOND

Author
Key Legislation

CONSTITUTION, covering cl. 5; s. 51 (x) : THE QUEENSLAND COAST ISLANDS ACT OF 1879 (QLD) : COLONIAL BOUNDARIES ACT 1895 (IMP.)

Date
Client
The Ministerfor External Affairs

In connection with Mr Salter's letter referring to the pearl fisheries of Thursday Island, the Minister for External Affairs asks to be advised on the following points:

  1. Has the extension of the boundaries of Queensland to include these fishing grounds (in many cases beyond the limit of three miles from the shore so often called the 'territorial limit') been so made by the Imperial Government that the Commonwealth may safely treat everything within these boundaries as included within the Commonwealth?
  2. What legislative power has the Commonwealth to control the issue of licenses within such boundaries, if the Attorney-General answers question (1) in the affirmative? These waters would then be within territorial limits.
  3. If the Attorney-General considers such waters to be 'beyond territorial limits' (Constitution, section 51 (x)), in what way can the Commonwealth Government or Parliament control the issue of licenses to pearling vessels? See Federal Council Act(1) on the subject.
  1. The facts with regard to the boundaries of Queensland are as follows:

    By Letters Patent of 6 June 1859 the boundaries of Queensland were defined as including 'all the adjacent islands their members and appurtenances in the Pacific Ocean'.

    By Letters Patent of 30 May 1872 the Governor of Queensland was appointed to be Governor of all islands within 60 miles from the coast of the Colony, with power to surrender the said islands to the Colony; and by proclamation and deed of transfer dated 22 August 1872, under the hand and seal of the Governor, the said islands were annexed to the Colony of Queensland.

    By Letters Patent of 10 October 1878 Her Majesty authorized the Governor of Queensland to declare by proclamation that certain islands in Torres Straits, and lying between Australia and New Guinea (i.e. all islands included within a line drawn as therein described from Sandy Cape to the meridian of 138 E. long.) should be annexed to and form a part of the Colony of Queensland; but it was provided that the Governor should not issue such proclamation until the legislature of Queensland had passed a law providing that the said islands should on the day to be proclaimed become part of the Colony and subject to its laws.

    Accordingly the Parliament of Queensland by Act 43 Vic. No. 1(2), provided that from and after such day as the Governor should appoint the islands included within the line so drawn should be annexed to and become part of the Colony of Queensland and be subject to the laws in force therein; and by proclamation in the Queensland Gazette of 21 July 1879 the Governor declared that the islands should be so annexed from 1 August 1879.

    Mention may also be made of two Orders in Council, dated 29 July 1896 and 19 May 1898, under the Colonial Boundaries Act 1895, ordering that so soon as the Colony of Queensland shall through its legislature have consented to the alteration of the boundary of the Colony as therein described, the boundary of Queensland to the northward shall be as therein stated and the islands and reefs lying to the northward of the boundary as thus altered shall thenceforth become and be part of British New Guinea. No such consent, however, appears to have been yet given by the Parliament of Queensland.

    From the above statement it will be seen that it is not accurate to say that the line drawn as above is part of the 'boundary of Queensland'. The fact is that the islands within that line are part of the territory of Queensland. The question remains-What part of the waters within that line are' territorial waters' of Queensland?

    The rules of international law on the subject of the precise extent of territorial waters are not very definite. It is universally recognized, however, that the territorial waters extend to at least a marine league from the coast, and this rule has several corollaries:

    1. That the waters enclosed by the headlands of narrow bays and gulfs, and three miles out to sea from the line joining such headlands, are territorial. Authorities differ as to the definition of these bays and gulfs; but the application of the rule to bays with a width of ten sea miles from headland to headland seems to be conceded.
    2. That the waters of narrow straits may be territorial, though the straits are more than six miles wide-subject however to the right of innocent navigation (Hall, International Law, 4th edn, p. 161)-the test being whether effective control is possible, and territorial jurisdiction necessary for the purposes of the state.
    3. That the coast of a country includes the natural appendages to the territory which rise out of the water-though not sunken shoals perpetually covered with water (Wheaton, International Law, 3rd edn, p. 271).

    In accordance with these principles, I am of opinion:

    1. That the waters within three miles from the mainland of Queensland or any of the islands above mentioned, or from a line joining the headlands of any narrow bay or gulf, are territorial waters of Queensland.
    2. That there is a strong case for holding that the waters between and among any closely connected groups of islands, or between the mainland and any land or groups of islands which form a natural appendage to the mainland- though outside the three-mile limit-are territorial waters.
    3. That there is a strong case for holding that the waters within the Great Barrier Reef are territorial waters of Queensland-subject to the right of innocent navigation.
    4. That, except as above, the open waters within the line denned by the Letters Patent of 10 October 1878 are not territorial waters of Queensland.
  2. I am of opinion that within the territorial limits of Queensland the Commonwealth has no power to control the issue of licenses for fisheries.
  3. Within such part of the waters denned by the Letters Patent as are outside the territorial waters of Queensland, the power conferred by the Imperial Parliament under section 51 (x) of the Constitution would extend to the control of the issue of licenses so far as British subjects and British ships are concerned; but the rules of international law do not recognize any such right of control, outside territorial waters, apart from treaty, as regards the subjects and ships of other nations, and the claim to exercise such control would probably be disputed. See Lawrence, Principles of International Law (1900), p. 106, and the case of the Bering Sea Seal Fisheries there discussed.

[Vol. 1, p. 477]

(1) The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888 (Fed. Coun. A/asia).
(2) The Queensland Coast Islands Act of1879 (Qld).