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Thursday, 18 May 1972
Page: 2776


Mr KILLEN (Moreton) - This Bill seeks to assert Commonwealth sovereignty over the territorial sea and the continental shelf. It does nothing else. It is an assertion of sovereignty. 'Sovereignty' is a word which unhappily is susceptible to a great deal of emotional stirrings. From the conception of this legislation, looking back over the last 2 years to all of the instances which have punctuated that period of time up until today, there has been an extraordinary gathering of emotions, stirrings, prejudice and resentment. I must confess that I find this puzzling. All that the Commonwealth, all that the national Parliament, is seeking to do is to assert sovereignty. It goes no further than that. Therefore it seems to me that 2 questions must be answered. The first is: Why seek to assert sovereignty; why is there the need to do that? The second question is: Is there any measure of urgency to assert this sovereignty?

I turn to the first question. If one could say with certainty that the States did have sovereignty over the territorial sea I could understand the argument of some of my colleagues who say that it is wrong to seek to take this from them. But the simple truth is that no person can say with certainty that the States do in fact have sovereignty over the territorial sea. I am not going to weary the House with any narrative of the history of this great issue. But may I just give point to the contention that I have made. This is not an old issue - old in terms of definition by our courts. When I use the term 'our courts' I have in mind English courts which have made decisions on this issue. Indeed, it was not until the year 1876 that an English court was called upon to determine where the boundary of the realm of England finished. Did it finish at the low water mark or did it go further out to sea? This arose out of the fact that the captain of a German ship, the 'Franconia' ran down another ship within 3 miles of the port of Dover and was charged with manslaughter. The issue before the court was whether the court had jurisdiction to try him for manslaughter. If the incident occurred within the realm of England, plainly it would have jurisdiction to try him. If it was within the historical purview of the Admiralty, again there would be jurisdiction well founded.

However, the matter went to issue and was heard by 13 judges in the Court of Crown Cases Reserve. They handed down a decision which, in plain language, represents the starting point of this great controversy. The Court held by a majority, albeit narrow, that the realm of England finished at the low water mark and that there was no jurisdiction to try the German captain. The case is known as R v. Keyn and the decision was that the realm of England finished at the low water mark. The point that affects our existence about that decision is this: What was the law in England in 1876 was the law in the 6 Australian colonies in 1876. Australia in its corporate national state did not exist then, and in 1876 the realm of the colonies finished at the low water mark.

In 1878' the British Parliament passed what was known as the Territorial Waters Jurisdiction Act which, for purposes of jurisdiction alone, moved the boundary 3 miles out into the territorial sea. That Act applied to Australia. It applied to the provinces of Canada in 1878 and it applied also to the 6 Australian colonies at that time. Even though the decision in the Keyn case is not binding on Austraiian courts, in my submission it has and would have powerful persuasive influence upon Australian courts.

Sitting suspended from 12.43 to 2.15 p.m.


Mr KILLEN - Before the suspension I was dealing with the primary question whether or not the territorial sea was in fact within the limits of the States. I had adverted to the history of the territorial sea so far as our own existence is concerned; I refer there to the Australian and AngloSaxon existence. The 3-mile territorial sea limit had its origin in the writings of the 17th and 18th century jurist Binkershook who argued that 3 miles was as far as the force of arms could be asserted. The limit became known as the cannon shot rule. I have already dealt with the case in the United Kingdom where it was held that the realm of England finished at the low water mark. I had argued that if in fact that were good law and binding in Australia the boundaries of- the States, formerly the colonies, finished at low water mark.

Those persons who contend that under this Bill the Commonwealth is seeking to take something from the States carry the tremendous responsibility of showing that the territorial sea is in fact within the limits of the States. The matter was not argued at length in the convention debates and there were merely one or two distant references to the issue. Unlike Canada, Australia is unable to ask its High Court to give a decision on this matter. The High Court of Australia cannot deal with a hypothetical question; there must be an issue before the High Court can give a judgment. In passing, I observe that this is a singular limitation and if ever I were in a position to argue a case for altering our Constitution to give to the High Court power to give advisory opinions I should certainly do sp. I have no doubt that that would save a great deal of fuss such as has occurred over this matter. That is the primary question that I argue, whether or not the territorial sea is within the limits of the States.

I turn now to the second question, whether or not this matter is urgent. I excuse myself completely from agreeing with those who say there is no urgency. I shall advance argument in support of the fact that there is some measure of urgency. 1 have heard nothing to persuade me to accept the view that it is not urgent. I should like to refer to an island situated some 800 to 900 miles off the coast of Mexico and known as Clipperton Island. This island is quite barren and nobody lives there. It is under the sovereignty of France and has quite a large continental shelf. The continental shelf is the geological phenomenon of the land mass continuing out underneath the water. Throughout the world are thousands of islands each with a continental shelf. All of them, no matter how small, have a territorial sea covering the prolongation of their land mass. When the conventions on the law of the sea were drawn up in 1958, the general view was that technological progress in this field would not be rapid and therefore countries which subscribe to the conventions might exploit out to 200 metres of their continental shelf or such further distance as they might find exploitable.

Today more than 1,000 companies and corporations are associated with the construction of submersibles - submarines - to explore and exploit the resources of the world's oceans. Oceans comprise fivesevenths of the world's surface - fivesevenths, the major portion. The world now stands on the threshold of a completely new frontier, the exploitation of the mineral and food resources of the oceans. At the some time the world faces what I might describe as the new colonialism: Who can command the resources? Will it be the mighty and the strong? Surely it has been the experience of all of us in this Parliament that the bitterness of the 20th century lies in the fact that man has been unable to find an accommodation with his fellow man. Does any person seriously suggest that there is nothing urgent about determining who. is to control and who is to have the use of these resources? Some may ask: Are these resources of any significance? I have extracted some figures relating only to the Pacific Ocean and they give some idea of the enormous mineral resources available from the sea. It is estimated that in the Pacific Ocean there are 17 times 10 to the 11th power tons of minerals. It is said that nodules of minerals form in the Pacific Ocean at a far greate rate than the total world consumption in 1960. It has been estimated that there are approximately 360 billion tons of manganese and approximately 15 billion tons of nickel under the Pacific Ocean. These figures are astounding but I shall not continue with them.

It is essential to determine, particularly in relation to the continental shelf, who has sovereignty. Surely no person with normal cerebal processes would contend that any other body than the national Parliament should speak for this country? We are one nation and I resent the temptation, the disposition of some who want to harken back to the colonial days. The mood of this country is to establish a national character and identity and surely this is to be determined by the national Parliament. As time is against me I must truncate my speech. Last year when I was Minister for the Navy a Naval legal seminar was held. Officers who serve the Royal Australian Navy in a legal capacity, together with captains of a number of ships were set 2 problems to consider. I ask for leave of the House to have them incorporated in Hansard.


Mr SPEAKER -Is leave granted? There being no objection, leave is granted.

FISHERIES PROTECTION PROBLEMS PROBLEM No. 1

HMAS 'Aware' finds the Formosan fishing trawler 'Ping Pong' within 12 miles, but more than 3 miles, of the Queensland coast, making 5 knots parallel to the coast. The trawler is visited and the crew are found cutting up fish and packing it in ice. 'Aware's' Captain arrests Ping Pong' and orders it to port He places on board a petty officer and an able sailor as a boarding party. The two vessels make for port Darkness falls. The boarding party is seized by the crew of 'Ping Pong', which then turns at speed towards the open sea. The change of course is observed on 'Aware's' radar display, and 'Aware' alters course accordingly and interrogates 'Ping Pong*. There is no answer. Owing to darkness it is difficult to ascertain what has happened and 'Aware's' Captain delays taking action other than interrogation until 'Ping Pong crosses the 12-mile exclusive fishery boundary. What action should 'Aware' take?

Consider particularly:

(a)   Whether 'Ping Pong' has committed an offence warranting its being arrested;

(b)   Whether the offence, if any, is covered by the Geneva Convention;

(c)   Whether a boarding party could legally have been put aboard; (d> What action 'Aware' should have taken before 'Ping Pong' reached the 12-mile limit:

(e)   What action 'Aware' should now take. In particular is there a right of hot pursuit? (Tj Should 'Aware' open fire?

(g)   Are the Procedures for Patrolling the Declared Fisheries Zone sufficient direction to captains in this situation?

PROBLEM No. 2

HMAS 'Aware* finds the Formosan fishing trawler 'Ping Pong' with gear unstowed and nets wet. When first sighted on 'Aware's' radar at a range of 14 miles Ting Pong' was reckoned by Aware's' Captain to be 11 miles from the base of the territorial sea measured from islands and cays in the Barrier Reef by him.

When boarded, Ting Pong's' Captain contends he was not fishing, was at all times more than 12 miles from any land, and had been fishing more than 12 miles from any land. 'Aware's' Captain decides to arrest. What evidence of Ting Pong's' position when sighted should be made available to the Court? In particular:

(a)   Is he justified in using the baseline of 5.9 miles, beginning 1.4 miles north of Island No. I and terminating on the tip of a drying reef half a mile from another drying reef 1 mile from Island No. 2 or should he use a baseline between Island No. 1 and the drying reef?

(b)   Could he use a baseline between the outer reefs of Islands Nos 1 and 2? lc) What checks for errors in compass and radar should he prove?

(d)   What visual sights should be taken to supplement radar sights, and how accurate are they likely to be, assuming Island No. 1 to be 20 feet above the water at high water, and Island No. 2 to be IS feet?

(e)   What evidence should be given to establish that any visual sights taken were accurate?

(f)   What evidence should be given of 'Ping Pong's' course and speed to establish that it had been fishing within 12 miles?

(g)   Are the Procedures for Patrolling the Declared Fisheries Zone sufficient direction to captains in these respects?


Mr KILLEN - These problems will give members some idea of the difficult field in which naval officers work. The first problem concerns an Australian patrol boat, HMAS 'Aware' finding a Formosan fishing trawler rejoicing under the name of 'Ping Pong' within 12 miles but more than 3 miles off the coast of Queensland and making 5 knots parallel to the coast. The trawler is visited and the crew is found cutting up fish. The problem poses the question: What should the captain of the patrol boat do? The problem then goes on to analyse whether he should give a warning and so forth. This is the sort of practical problem that is encountered where one has young naval officers dealing with this type of question, not every day of the week but constantly. Some may say that a Formosan fishing vessel found in these circumstances is not very important.

I recall when the Russian vessel 'Van Gogh' was in the Gulf of Carpentaria people said it should not be there. I can understand that. But it was on the high seas and entitled to be there. One character in Queensland with a rather robust sense of humour suggested that the local police sergeant should open fire on the 'Van Gogh' with a .303 rifle. This is the sort of problem that is encountered. It has its note of hilarity but it can lead to very ugly incidents. I hope, that honourable gentlemen will look at these problems. I do not say this offensively but I would welcome the response of those who argue that there is no urgency about this situation. I am tempted to say that in some instances probably they would get 3 marks for neat writing. If one makes the assumption that there is a territorial sea of 3 miles belonging to Queensland the Commonwealth purports to legislate out to 12 miles, that is, over the 9 mile belt, the problem then is for those involved in the fishing industry to know at any one time in whose waters they are. This is a practical problem. Take the case of a vessel moving out of the territorial sea alleged to belong to Queensland into Commonwealth waters and a man on board catches a fish. The bow is in Commonwealth waters and the fish is caught from the stern of the boat. Where does the fish come from, Commonwealth or State waters? These are practical problems and those in the fishing industry to whom I have spoken are baffled by them.

This is particularly the case when we are dealing with Queensland, with hundreds of islands off the coast. State waters, Commonwealth waters and State waters again. This is not good enough for the nation. Whatever difficulties may be involved in determining what money should flow from the exploitation of fishing resources or mineral resources is a matter for another day. All this Bill seeks to do is to determine the question of sovereignty and to settle the matter. At last count there were 135 nations in the world, 109 of them having some coastline of some description. Australia is the only nation which has not made up its mind on this question. I find this offensive and quite needless. I do not know why people get fussed about it. I am not in the habit of disclosing private conversations in public controversy but I hope that the Minister for Foreign Affairs will indulge me to this extent because I think his remark was a classic. He said to me on some occasion when we were discussing it: 'You would almost think the stuff was Scotch whisky', and that is perfectly true.

The next matter to which I want to move to illustrate what I regard it as the urgency of the problem, is that the Commonwealth has legislated in respect of fishing between the 3-mile and 12-mile limits on the basis that it is the contiguous zone to the territorial sea. I have the gravest doubts whether the legislation is valid because under the conventions to which we are a party the contiguous zone does not refer to fishing. It refers to fiscal, customs and sanitation - I forget what the other one is but I could find it in a moment - but there is no mention of fishing at all. At least Sir Gerald Fitzmaurice who for many years was the legal adviser to the British Foreign Office and now is President of the International Court of Justice takes the same view. Writing in the 'International and Comparative Law Quarterly' he said:

Under general international law, and despite certain recent claims and attempts, there is no warrant for the establishment by coastal states of exclusive fishery limits separated from the proper limits of territorial waters, or for the assertion of exclusive fishing rights in areas going beyond these.

What is the position? Is the Commonwealth legislation valid or not? The conference which is in view will deal with one of the most complex fields of law known to man. The paradox in it all is that for centuries the law of the sea has had a sense of regulation about it. It goes back to the old Rhodian sea law three or four centuries before Christ, the Hanseatic code and the Rules of Oleron and so forth. Today the world is on the threshold of being plunged into immense chaos. Some nations have a 3-mile limit while others have a limit of 5 miles, 6 miles, 9 miles or 12 miles. Some South American countries claim a territorial sea of 200 miles. So this question must be settled. The arbitraments of force cannot be allowed to be the determining factor in this. The question must be settled by reason and that is why I have argued all through this unfortunate and needless debate that reason must be the dominant quality to be displayed. The Commonwealth will have discussions with the States. I welcome these discussions but ultimately the decision must be one for the High Court of Australia. That is why I agreed wilh the right honourable member for Higgins (Mr Gorton) that there must be some time limit put on the determination of this question. (Extension of rime granted.) If the Commonwealth and States can litigate in a friendly fashion, as was suggested by Sir Percy Spender, rather than hissing at each other and litigating at arms length, so be it. But the matter must be decided by the High Court. As a further illustration of what I would describe as the urgency of the case I take the position that Australia has got itself into regarding the Gulf of Carpentaria. Some people - I understand their concern - have suggested that we should shut off by unilateral action the whole of the Gulf of Carpentaria. As the law of the sea now stands in my view that is not possible. That does not mean to say that some time in the future it will not be shown to be practicable. But I am attracted to the view that it is possible for the Commonwealth, by using the existing conventions on the law of the sea, to shut off substantial parts of the Gulf of Carpentaria. For example, I believe that straight base lines could be drawn from the Wellesley Islands eastward to the coast of Queensland. If this is to be done it must be done by the national Parliament. Similarly I believe that on the western side straight lines can be drawn from Cape Wessel down to the Sir Edward Pellew group of islands and the area shut off could be for the exclusive fishing rights of Australia. The difficulty in it is that where the States are involved no person knows who has sovereignty with respect to taking and that is why it is urgent in my view to have the matter determined.

I earnestly press upon the Government the need to establish a law of the sea institute to deal with these problems and to study them because there is nothing settled. It is an incredibly complex field of law. It is a great pity that we in Australia have not availed ourselves of a very distinguished

Australian, Professor O'Connell of Adelaide University, with and under whom I have had the pleasure of working. Amongst other things he occupies the Chichele Chair of International Law at Oxford. He is a man of great charm and of immense capacity. He is the sort of person I would have in mind to deal with all of these problems. Unless this nation takes some initiative in the field it will see confusion worse confounded.

May I give another illustration of the confusion which has occurred? Australia has accepted the compulsory jurisdiction of the International Court, pursuant to section 36 of the statute which set up the International Court. But when we signed that, we reserved certain matters. For example, we reserved that we would not accept the compulsory jurisdiction with respect to the continental shelf. We reserved matters dealing with the natural resources of the sea-bed and sub-soil of the continental shelf. We also reserved matters under the Australian Pearl Fisheries Act. But when we signed the conventions dealing with the law of the sea, we accepted the compulsory jurisdiction of the International Court for all matters. With respect to the declaration of the International Court lodged in 1953, Japan, for example, has accepted that compulsory jurisdiction of the court, but Japan has not signed the optional protocol to the Geneva Convention. The Japanese, in a literal sense, have us over the barrel. This is something that has just drifted by. We have never settled the matter.

The difficulty can be apprehended more cogently with respect to New Guinea. Australia has an immense continental shelf. It is quite unbroken between the Australian coast line and New Guinea. What would happen with an independent New Guinea which did not accept, for example, any convention dealing with the law of the sea? The Internationa] Court has held that you cannot use the median line with respect to the continental shelf because it is not a customary rule of international law, but you can invoke H where there is an agreement to do so pursuant to a convention. Is it seriously to be said with respect to an independent nation that the State of Queensland should argue the case? It has no locus standi before a court. It is an exquisite absurdity, and I do not know why we tolerate it. Here is the need to determine who has sovereignty over the continental shelf for the purposes of seeking to protect a right.

The last illustration that I want to give with respect to this question of urgency is that under the 4 conventions dealing with the law of the sea and under the Bill, the Commonwealth Parliament seeks to assert sovereignty over the territorial sea and the continental shelf. But certain things are excepted from it. Clause 11 of the Bill states:

The application of this Act does not extend to or in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river. . . .

Under the convention dealing with the territorial sea you can rule off a mark in a bay. You can draw a straight base line of 24 miles across a bay and say that all waters within that are internal waters. The American Supreme Court has held that if you approbate the convention for the purposes of dealing with other nations and therefore accept this 24 miles mark you cannot in terms of the components or the elements of the federation reject it. While our High Court would in no way be bound by that, it would have immense persuasion and influence upon it. We would have the extraordinary situation of bays around the Australian coastline being ruled off. Inside the line they would be internal waters, and outside the Commonwealth would have sovereignty. Who would draw the lines? I ask honourable members to think of the immense task involved in drawing the lines. 1 come back to the point: People would inquire whether they were in the State waters or in Commonwealth waters. That is why I believe that this matter should be settled, lt can be settled amicably and should be settled pleasantly.

In my judgment there is urgency about this matter. This world has been wracked with dissension and great strains. We are now, as I have argued, on the threshhold of being threatened with a new colonialism, and the immense resources of the sea should not go to the strong; they should go to the corporate welfare of humanity. That is why I believe that this Parliament, if it seeks to assert sovereignty and to settle the matter, is contributing to that extent, to the common welfare of mankind.







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