R v Bull

131 CLR 203
3 ALR 171; 1974 - 0611A - HCA

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(Judgment by: Barwick CJ)

Between: R
And: Bull

Court:

Judges:
Barwick CJMcTiernan J
Menzies J
Gibbs J
Stephen J
Mason J

Subject References:
Trade and commerce
Customs offences
Prohibited imports
Whether goods imported into Australia
Courts and judicial system
Whether admiralty jurisdiction

Legislative References:
Customs Act 1901 (Cth) - s 231; s 233A; s 233B
Northern Territory Supreme Court Act 1961 (Cth) - The Act
Judiciary Act 1903 (Cth) - s 39(2)
Supreme Court Act 1856 (SA) - The Act

Hearing date: Sydney 26 November 1973; 27 November 1973; 28 November 1973; 29 November 1973
Judgment date: 11 June 1974

Melbourne

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Judgment by:
Barwick CJ

In March 1973 the vessel Mariana made a voyage from Darwin in the Northern Territory of Australia to the Island of Bali in Indonesia.  On its return voyage towards Australia, the vessel was under the observation of Australian authorities concerned with the administration of the Australian customs.  As the vessel neared the port of Darwin, an Australian Army helicopter co-operating with those authorities began to descend over the vessel in a fashion and to a degree well calculated to alert those on the vessel to the fact that the vessel was under close surveillance.  A launch carrying customs officers was at the same time on its way from Darwin towards the vessel.  It may be, particularly having regard to the subsequent actions of those on board the vessel, that the action of the helicopter indicated to them the imminence of a boarding operation by the customs.

Joseph Corns was the master of the vessel: Barry Richard Bull, John Plithakis and Gregory James Conn were either crew members or passengers upon it.  The vessel was carrying cannabis, procured in Bali and packed in suitcases.  On the near approach of the helicopter these suitcases were jettisoned by those on board the vessel and its decks washed down so that upon the subsequent inspection of the vessel when boarded by the customs officers no cannabis was found on board.  Later, in the port of Darwin, no cannabis was found upon any of the persons who had been on the vessel other than 14.8 grams of cannabis resin which was found on Gregory James Conn. However, as the vessel after being boarded was brought into port under escort, the possession within the limits of the port of this quantity of cannabis resin was not relied upon by the Crown in connection with any of the charges subsequently laid.  Some of the contents of the jettisoned suitcases, amounting to 31,000 grams of cannabis, was recovered from the sea by officers of customs.

Joseph Corns, Barry Richard Bull, John Plithakis and Gregory James Conn (the accused) were thereafter indicted before the Supreme Court of the Northern Territory with having committed offences against the Customs Act 1901-1971 (Cth) (the Act).  In the trial on this indictment, some of the charges were withdrawn, and upon others there was either a verdict of acquittal or no verdict at all.  All four accused, however, were found guilty by the jury: 1. of importing into Australia a prohibited import, namely, cannabis, contrary to s. 233B (1)(b) of the Act; 2. of having in possession on board a ship a prohibited import, namely, cannabis, contrary to s. 233B (1)(a) of the Act; and 3. of assembling for the purpose of preventing the seizure of a prohibited import, namely, cannabis, contrary to s. 231 (1)(c) of the Act.  The assembling contrary to the Act was said to have taken place on the vessel.  Joseph Corns was also found guilty of knowingly allowing the vessel to be used in the importation of goods contrary to s. 233A of the Act.

Having regard to the course of the trial and the verdict of the jury, the act of the accused relied upon as constituting importation of the cannabis was the act of bringing the suitcases on the vessel over a line three nautical miles from the coastline of the Northern Territory.  The act of possession on which the breach of s. 233B (1)(a) was founded was possession on the vessel after it had crossed that line.  Presumably the act of assembling for the purposes of s. 231 (1)(c) was the act of co-operating on the vessel in disposing of the cannabis which, again by implication from the verdict of the jury, occurred after the vessel had crossed that line.  Further, it must be taken that the vessel was boarded by the customs officers after it had come within three nautical miles of the coast but yet not within the limits of the port of Darwin.

Before the jury was charged, the accused requested the Judge of the Supreme Court presiding over the trial to reserve certain points of law for the consideration of a Full Bench of this Court.  His Honour, however, followed the convenient course of taking the verdict of the jury with the results I have described, and thereafter postponed judgment until this Court should have answered the questions asked in a case stated by him pursuant to s. 72(3) of the Judiciary Act 1903-1969.

That case is now before us.  The questions asked are:

1.

Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment (a) if the offences were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof; and (b) if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast?

2.

If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty?

3.

If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting?

4.

Does the Customs Act 1901-1971 extend to the said offences (a) if they were committed in the area between the low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof; and (b) if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast?

5.

If prohibited imports are voluntarily brought from a point outside a line three nautical miles from the low water mark of the Australian coast adjacent to the Northern Territory to a point within the area between the said low water mark and the said line have they been imported into Australia within the meaning of s. 233B of the Customs Act 1901-1971?

Questions asked as to any of the counts numbered 2, 4, 7, 9, and 12 of the indictment being counts which were either withdrawn from the jury or in respect of which there has been a verdict of acquittal or no verdict at all, should not, in my opinion, be answered.  To enable identification of those counts, I append to these reasons a numerical list of the counts in the indictment.  Further, nothing in the case before the Supreme Court calls for an answer to questions 1(b), 4(b), or 5.  Consequently, the only questions which, in my opinion, are proper now to be answered are questions 1(a), 2, 3 and 4(a).

Cannabis is a narcotic drug within the meaning of s. 233B of the Act and is a substance the importation of which is prohibited by regulation made under s. 50.  Thus, it can fall within the expression "prohibited import" in s. 51.  Further, its importation into Australia is made unlawful and an offence by s. 233B (1)(b).  I take question 1 to involve whether the acts I have detailed did amount to offences under the Customs Act.

Consequently, the substantial questions which arise for decision in this case, in my opinion, are:

1. When under the Act is importation of goods into Australia effected?

The competing views are: on the part of the accused, when goods are landed otherwise than duly through a proclaimed port or are brought within the limits of a port with the intention of landing them there; and, on the part of the Crown, when they are brought within three nautical miles of the coast of Australia with the intention of landing at some port or place in Australia.

2. Assuming validity, what is the geographical limitation, if any, to be implied in s. 233B (1)(a)?

The opposing contentions are: on the part of the accused, that the possession to which the section relates is possession within the limits of a port or upon the land; and, on the part of the Crown, possession as well anywhere within the area bounded by a line drawn at three nautical miles of the coastline, that is to say, anywhere in "territorial waters" off the Australian coast.

3. Is the description "prohibited imports" applicable to goods which have not been imported?

The accused contend for a negative answer, whilst the Crown contends that the description is of a class of goods which are prohibited imports wherever they may be possessed, their importation not being essential to the satisfaction of the description.

4. Has the Supreme Court of the Northern Territory jurisdiction to try the indictment in this case?

The accused submit that it has none, its common law jurisdiction being limited to offences wholly committed in the Northern Territory, any Admiralty jurisdiction which it may have being limited to offences which the Admiral could try, which none of the offences here is, and the invested federal jurisdiction derived from or through s. 15 of the Northern Territory Supreme Court Act 1961-1973 (Cth) being limited to the trial of offences against federal laws committed within the Northern Territory.  That Territory by definition is limited to the land mass, not extending into the marginal sea, see s. 4, Northern Territory Acceptance Act 1910-1952 (Cth).  On the other hand, the Crown contends that the jurisdiction of the Court is not so limited but extends to the trial of offences committed on the high seas or at any rate in "territorial waters" off the Australian coast, including offences against federal laws so committed, and that, in so far as it might be necessary for the support of that proposition and the Crown's submission as to importation into Australia, Australian territory extends to include the marginal sea bounded by what is conveniently referred to as the three mile limit.

The case thus raises most substantial issues, all of importance.  The answers to the four questions I have posed will provide the material for answering questions 1(a), 2, 3 and 4(a) of the stated case.  The full details of the facts of the matter are not before us nor is the summing up of the learned trial judge.  Nor are we presently concerned with the further proceedings in the Supreme Court except that they must be conducted in conformity with the answers which the Court gives to the questions posed in the stated case, and with any necessary implications therefrom.  Thus the question whether there really was any evidence of persons having assembled for the purpose of preventing seizure is not before us; the actual purpose of the persons either in being on the ship or in co-operating thereon to dispose of the suitcases being a matter for investigation as well as the proximity of a threat of seizure of the goods as distinct from close surveillance or attempted identification.  Further, the question whether there was evidence of an attempt to import the cannabis for which the accused should be tried is a question for the consideration of the Supreme Court.  Whether or not these questions remain for consideration must depend, of course, on the outcome of the stated case: but none of these are matters with which, on this stated case, this Court, in my opinion, should concern itself.

It will be convenient to deal first with the question as to when goods are imported into Australia within the meaning of the Act.  Because the power to impose a duty of customs is exclusive to the Parliament and because continental Australia and Tasmania is each an island, there can be no importation into Australia except of goods which come from overseas.  Thus, unlike the case of a country with land boundaries shared with another country, e.g. the United States of America, there is no need to distinguish between importation by land and importation by sea.  But, of course, the possibility of landing goods otherwise than duly through a proclaimed port must be, and in the Act has been, considered.

The question is not what constitutes importation in an abstract or universal sense: the question is when, according to the provisions of the Act, are goods imported into Australia. However, in general, importation of goods, in my opinion, according to the natural meaning of the word, involves landing them, or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated.  I have not found or been referred to any reported decision, with the possible exception of Brown v  Kenyon, ^[F1] which casts any doubt on that general proposition. I may say as to this case that the report of the argument is more illuminating than the terms of the judgment.  Giving the Court's reasons full consideration, I have concluded that the seizure in that case was considered by the Judge in Vice-Admiralty to have been effected within the area of the port of New York.  On that footing the result of the case is understandable.  But, in any case, neither the conclusion nor the reasoning, in my opinion, affords colour to the proposition that importation takes place on the high seas.

In the present case, attention was drawn in argument to a difference between s. 233(1)(b) and s. 233B (1)(b).  The latter speaks of importing into Australia whereas the former contents itself with a prohibition on importing.  In my opinion, there is no significance for present purposes in the difference in expression in the two provisions, though introduced into the Act at the same time.  The word "import" will have the same significance in each place: and, if, as I think, it means in any case import into Australia, the words "into Australia" in s. 233B (1)(b) add nothing of significance.  "Importation" seems to have been treated as involving importation into Australia in Wilson v  Chambers & Co  Pty  Ltd. ^[F2]   See also Lyons v  Smart. ^[F3]   The particular subject matter of s. 233B (1)(b) and its relation to overseas trade does not afford any reason, in my opinion, for any differentiation in the construction of these provisions.

Argument was addressed to the Court as to the territorial boundaries of Australia and I shall later say something as to that matter.  But I presently observe that the meaning of the expression in the Act "import into Australia" cannot be determined by isolating "Australia" from the total expression.  The question cannot be what are the boundaries of Australia for purposes other than the present.  The question is what is involved according to the proper construction of the Act in the activity of importing into Australia.

It is necessary now to examine the Act in order to discover what meaning is required by the statute to be given to the expressions "import into Australia" or "importation into Australia".  Neither expression is the subject of definition by the Act.  In the references which I make to the Act I omit the case of goods arriving on an aircraft or through an airport in relation to which the problem posed by the submissions made in this case does not arise.

In considering the Act, both as to meaning and validity, it must be borne in mind that the constitutional powers supporting the statute are, in relation to the duties of Customs, the power to make laws with respect to taxation, s. 51(ii); and, in relation to the prohibition of importation, the power to make laws with respect to trade and commerce with other countries, s. 51(i).  Section 90, in making the power of the Parliament to impose duties of customs and excise exclusive, does not alter the constitutional basis of the imposition of those duties; their imposition is a form of taxation.  Of course, the incidence and the amount of such duties are determined not merely by the need for revenue but by the protective and fiscal policies of government. The attainment of those policies, though they may not form directly the subject  of legislative power, is a constitutionally permissible use of the power of taxation and, indeed, of the trade and commerce power.  But in considering whether any particular provision of the Act is within the power of taxation, within the trade and commerce power or within the legislative power given by s. 51(xxxix), it is taxation, trade and commerce and the execution of the laws made under those powers and not the policies which have determined the incidence and amount of the duties or the prohibition of imports to which the provision must relate or be found to be incidental.  Further, in seeking the meaning of a provision which is ambiguous or in need of construction, the same considerations must be borne in mind.

I turn now to examine the Act.  "The Customs" means the Department of Customs.  In order to secure due importation, goods are subject to the control of the customs from the time of importation until the earlier of delivery for home consumption or exportation beyond the seas, s. 30. Further, all goods on board ship from parts beyond the seas are subject to the control  of customs whilst the ship is within the limits of any port in Australia, s. 31.  This provision obviously includes goods which are not intended to be landed but which are in transit through the port.  Goods subject to the control of customs may be examined by customs and may not be moved except as authorized by the Act, ss. 32 and 33.

Entries may be made and passed for all goods subject to the customs, s. 36.  Thus, for example, goods in transit and not intended to be landed as imports may be entered for removal to a transit warehouse: see ss. 40A and 37(1c).  Imported goods must be entered for one of four named purposes, s. 68.  It would seem that on the proper construction of s. 69, the Act contemplates that the goods will be entered immediately upon  importation, "immediately" in that section being referable, in my opinion, to the time of the importation of the goods.  Section 69 allows a sight entry to be made and s. 71 requires a complete entry within a limited time.  Goods which are subject to the control of customs as provided by the Act must be entered, whether or not  they are dutiable goods.  On the passing of the entry, including a sight entry, the goods must be dealt with "forthwith" in accordance with the terms of the entry, s. 40.  There is no specification of the time within which the entry must be passed by the customs though the manner of passing an entry is specified, s. 39.  Entries are to be made of the goods unshipped.  Section 49 authorizes the customs "for the purpose of securing the due importation of goods" to board the ship, have a report of the cargo and examine the goods before being landed.  Due importation must mean importation in conformity with the Act, which imposes duties of customs according to the "Customs Tariff" as defined, s. 4(1).

Certain of the Australian ports are proclaimed as ports for the purposes of the Act. Section 15 enables their establishment - in the sense of proclamation - and the fixation of their  precise limits.  Within such ports boarding stations are appointed, s. 15.  A ship must not enter any place other than a proclaimed port except under stress of weather or other reasonable cause, s. 58.  An overseas ship shall be brought to an appointed boarding station within the port to which it is bound or at which it calls, s. 60.  Having come to the boarding station and having been boarded by an officer of customs, the ship is to be brought directly and as quickly as lawfully practicable to the proper place for mooring or unloading, s. 62. Wharves for the landing of goods and places for the examination of goods on landing may be appointed, ss. 15 and 17.  The master of a ship which has arrived from overseas shall within one day of arrival report the ship by delivering its inward manifest of goods for that port, s. 64.  In that provision, "arrival", in my opinion, means entry of the ship within the limits of the port.  The ship may not be cleared for leaving that port unless all her inward cargo according to the manifest has been duly accounted for to the satisfaction of the Collector of Customs s. 122.  When a ship is lost or wrecked upon the coast, the master must without unnecessary delay report the ship and cargo by delivery of her manifest to the customs house nearest to the place of loss or wreck, s. 65.  Dutiable goods shall be delivered without unnecessary delay to an officer: otherwise flotsam and jetsam shall not be moved without the authority of the customs, ss. 66 and 67.

The scheme of the Act thus seems to be to control the due importation of goods by channelling shipping through proclaimed ports having defined limits and through boarding stations within the port to appropriate wharfage.  The inward cargo is to be reported, the goods are to be entered unshipped immediately upon importation, and upon the passing of the entry, to be forthwith dealt with in accordance with the terms of the entry.  In order to secure due importation, all goods from importation until passed into home consumption or until exportation abroad are subject to customs control.  Goods in transit not intended to be landed are also subject to that control.  There is no express provision of the Act requiring that an entry be made of goods brought within the limits of a port and not intended to be landed but to be oncarried.  Section 68 confines itself to imported goods.  However, imported goods intended for transhipment must be entered, s. 68: and presumably any goods may be entered for removal to a transit warehouse.

All the provisions to which I have so far referred operate on the footing that importation takes place on entry into port of the goods intended to be discharged from the ship at that port.  The requirement of entry of imported goods unshipped necessarily denies the proposition that importation only takes place in any case when goods are landed.  It seems to me that the conclusion that entry into the port with the intention of being landed constitutes importation, is implicit throughout the reasons for decision in Wilson v  Chambers & Co  Pty  Ltd, ^[F4] and is so expressed in the reasons of individual Justices, e.g. ^[F5]

However, the submission has been made that importation of goods carried by an overseas ship takes place on the entry of the ship within the three mile limit.  This submission is based principally on the presence in the Act of s. 59 and also upon the presence of the words "into Australia" in s. 233B(1)(b), it being claimed that, for the purposes of the Act, Australian territory extends to the three mile limit.  It is therefore necessary to examine these contentions.

The conventional "three mile limit" is a line which follows at a distance of three nautical miles precisely the contours of the coast, its bays and headlands and, in some locations, is calculated from conventional or even unilaterally determined "base lines".  To determine it at any given point is a matter of considerable difficulty, depending on accuracy of charts, observations and calculations.  It is a line which rarely, if ever, needs to be determined for commercial navigation.  For example, although ships northward bound on the coast of New South Wales will steam close to the shore to avoid the southward flowing current, they have no need for that purpose to determine the location of the three mile limit.  Shipping, whether coming round the Cape of Good Hope or through the Suez Canal, may well pass within three nautical miles of Cape Leeuwin, and though passing out of territorial waters as the Australian Bight is crossed, may well pass within three miles of one or other island in Bass Strait.  I cannot think that the three mile limit is of navigational interest in such a passage.  That limit does not correspond to any fathom line or to the continental shelf or to any point upon or to any area of it.  It describes an area of the high seas in which by international comity the littoral nation state may exercise control in furtherance of its defence and its domestic welfare.  In that respect, that area of the high seas may be said to be within the dominion of the nation state, but laws operating in that area of the high seas are of an extra-territorial character.

Section 59(1) requires the master of a ship arriving within three nautical miles of the coast, if appropriately hailed or signalled by customs or service ship, to bring the ship to for boarding and, having done so, by all reasonable means to facilitate boarding by the officer of customs, s. 61.  Having thus boarded a ship, the officer may stay upon it, sleeping accommodation and food being provided by the master.  Section 59 speaks only of the ship being brought to "for boarding".  Whether, having boarded, the officer may exercise all or any of the powers given him by ss. 187, 189 and at least some of the powers given by s. 190 whilst the ship is still outside the limits of a port is a matter for consideration.  But neither s. 59 makes, nor would the possession of these powers make, the cargo or the ship subject to "customs control" as that expression is used in the Act.  Consequently, the powers given by s. 186 would not,  in my opinion, be available, to an officer who has boarded a ship pursuant to s. 59.  Further, the fact that an officer has boarded a ship pursuant to s. 59 does not relieve the master of the obligations of ss. 60 and 62.  The ship bound to a port is in any event to bring to at a boarding station within the port.  The point where the ship is brought to pursuant to s. 59 to permit and facilitate boarding is not a boarding station.

Section 59 speaks of a ship "arriving".  This may not seem an apt description of a ship which has entered the marginal seas, for example, off Gabo Island, on its way to discharge at Sydney or has come within three nautical miles of Cape Leeuwin en route for eastern Australian ports.  One could readily understand a power to board a ship within three miles of a port as facilitating the clearance of passengers and their luggage.  But, although there may be some difficulty in equating "arriving" with "being" or "coming", this case can be decided on the footing that the power given by s. 59 is not limited to boarding a ship within three miles of its port of destination but that the power is available with respect to a ship anywhere within the three mile limit around continental Australia and Tasmania.

Section 59 might be supported both by the taxation and by the trade and commerce power.  It is not prefaced as is s. 49 with the words "For the purpose of securing the due importation of goods".  Section 49 gives a boarding power which in the context of the Act must refer to the boarding of a ship which has arrived within the limits of a port.  The report of the cargo for which s. 49(2) and s. 64(a) provide, quite clearly is to take place after arrival within a port.  The power to prevent "hovering" is found in s. 185 where the power to board is expressly accompanied by the power to search.  Section 187 gives an officer power to board any ship, search any ship, or secure any goods on any ship: but the need for some limitation on the generality of the section is evident.  The searching of a ship boarded under the powers given by s. 185 would seem not to be included in the powers given by s. 187.  Again, it may be doubted whether the power to board given by that section would extend to the boarding of a ship within three nautical miles of a coast.  For that, express power has been given by s. 59.  Quite obviously, there must be a geographical limitation implied in s. 187.  In my opinion, that geographical limitation in relation to a ship is "within the limits  of a port", just as in the case of an aircraft it must be upon the land though strangely enough s. 188  requires the pilot of the aircraft to provide "sleeping accommodation in the cabin and sufficient food for the officer", something readily understood in relation to a ship but unlikely enough in the case of a landed aircraft.  The injection of the officer into the plane in the airspace near Australia is, to say the least, somewhat unlikely.   The power given by s. 186 to open packages etc., would not seem to extend to the cargo of a vessel within a three mile limit of the coast because s. 186 is limited to goods which are subject to the control of the customs, and as I have pointed out, nothing makes the goods in the cargo of a ship within three nautical miles of the coast subject to the control of the customs.

The power to board a vessel in the marginal waters is very old in the law of customs.  It is consistent with the principles of international law as expressed by Sir W. Scott in "Le Louis": ^[F6]

"Upon a principle much more just in itself and more temperately applied, maritime states have claimed a right of visitation and enquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions for various domestic purposes, and particularly for fiscal or defensive regulations more immediately affecting their safety and welfare."

This power was evidently intended as a means of preventing smuggling, that is to say, to prevent the discharge of goods to land otherwise than through a designated port.  Thus, although not prefaced with words relating to the due importation of goods, I would conclude that the purpose of s. 59 is, as was historically true, to prevent smuggling and to ensure that the goods in the cargo of the vessel are brought into port and not surreptitiously discharged.  Hence, no doubt, the power to seal the cargo.

But this provision for boarding in the territorial waters does not have any logical connection, in my opinion, with the question of when importation occurs.  Indeed, if the goods in the ship are imported so soon as the ship arrives within territorial waters, s. 59 would be otiose: s. 187 in that event could not be limited to a vessel in port and would be available in relation to goods in  the ship within territorial waters.

However, in any case, it is to my mind a completely impractical concept that  importation of goods takes place so soon as and wherever the ship carrying them enters the marginal seas, perhaps only to leave them again for navigational purposes as it moves towards the port of discharge.  In my opinion, it would not be reasonable or practicable to impose  on the owner of goods in a ship which has entered such marginal waters as from the moment of such entry the obligations which the Act places on an importer.  Such a person would be unaware of the time of such entry.  He could scarce be required immediately thereafter to enter the goods, even by a sight entry.

But it is said that "Australia" as a territorial description stretches to the line of the three mile limit and is not a description merely expressive of the land mass of the continent and of Tasmania above sea level.  What I have already said about importation would make it improper to so regard Australia for the purposes of the Act: in other words, to import into Australia, in my opinion, is to bring goods within the limits of a port or to land them in breach of the Act.  In reaching this conclusion of the construction of the Act, I have found no need to rely upon Reg. v  Keyn. ^[F7]   The question in construing the statutory expression "import into Australia" is not whether "the realm" extends beyond low water mark.  If it were, I would regard that question as settled by Reg. v  Keyn .  If it were an open question I would myself feel convinced by the reasons of the majority, particularly those of Cockburn L.C.J. ^[F8]

But, in any case, I am unable to accept the proposition that the limit of Australian territory is co-extensive with the three mile limit.  I have already expressed my opinion that the submerged land of the continent to the point where it meets the ocean floor, referred to as the continental shelf, at least to the extent to which it can be used or exploited, is within the sovereignty of the nation, both as regards other nations and as regards the Australian States.  But that does not mean that a reference to Australia in a statute of the Parliament is a reference to Australia as if bounded territorially  by that continental shelf.  Nor does it mean that the waters superincumbent on that shelf are within the territory of Australia.  The question whether the waters within the line three nautical miles from the coastline known as "territorial waters" are under the dominion of the nation, absolute or limited, is yet another and a different question.  I have already referred to the extent of the control of them which is comformable to international comity.  Quite clearly, there is an international right of innocent passage through them.  It is an odd concept that a foreign ship exercising this right of passage is traversing the territory of Australia.  I had occasion in Bonser v  La Macchia, ^[F9] to consider the meaning of the constitutional expression "beyond territorial limits".  But again the question of the meaning of "Australia" in a Parliamentary enactment was not involved: nor does a conclusion as to the meaning of the expression "territorial limits" in the Constitution necessarily determine the meaning of "Australia" or the extent of Australian territory.

In my opinion, in the phrase "import into Australia" the reference is to the unsubmerged land mass of the continent and of Tasmania which does not include the marginal waters or, for that matter, any part of the continental shelf.  The question is what is involved according to the Act in importation into Australia.  On that I have expressed my firm conclusion. Accordingly, I am of opinion that, in order to commit the offence of importing created by s. 233B(1)(b), the goods in question must have been brought within the limits of a port with the intention of landing them or must have been landed in Australia.

The next question is whether any, and if so what, geographical limitation is implicit in s. 233B(1)(a).  If to be prohibited imports the goods must have been imported, then the possession which offends must be possession in a port or on the land.  Thus, the meaning of the provision as to importation will decide the identification of prohibited imports.

However, I will first essay the construction of the section as to the place where possession is to be had.  At the outset, the section cannot be referring to possession anywhere in the world.  Some geographical limitation is essential to make the section relevant to the Act and its purposes. Here the Act may be regarded as dealing with a matter of trade.  The prohibition of import is not a matter of taxation: nor, in my opinion, incidental to that subject matter or to the execution of a revenue law.  The offence created by s. 233B(1)(b) is, in my opinion, incidental to a prohibition on trade:  it is a means of rendering the prohibition of importation effective.  It seems to me that a principal purpose of s. 233B(1)(a) is to enable the prosecution of a person found in possession of the goods where it cannot be established who the actual importer of the goods was, though its application may not be limited to such a case. It can be used to embrace accomplices after an importation in breach of the Act.  To construe the section as referring to possession on land or in a port of imported goods the importation of which is prohibited would give it a wide and effective operation.

But it was argued that because an officer might board a ship arriving within three nautical miles of the coast the section must include possession within the marginal waters of the coast.  I am unable to see any logical connection between the two sections.  Applying the section to the foreign trade by sea, the possession of the cargo is in the master of the vessel, the right to possession, absolute or conditional as the case may be, being either in consignor or consignee as the circumstances require.  Knowledge of the nature of the thing possessed is not essential to the commission of the offence under s. 233B(1)(a); however much ignorance of it may exculpate: see Maher v  Musson. ^[F10]   It would, in my opinion, be absurd to construe the section as making it an offence in the master to be in possession in the marginal seas of any goods the importation of which is prohibited.  One might well ask, why the marginal seas?  What relevance to the matter in hand, trade and commerce, have they? I can find no logical reason connected with the regulation of foreign trade or, for that matter, with the collection of the revenue, which would suggest that the implied geographical limitation was that the ship should be in territorial waters.

Section 59, even if it be thought that it renders available to the boarding officer all the powers of ss. 187, 189 and 190, does not give the officer any power of the search of person.  Section 59 would thus scarcely be relevant to the possession by a person on a ship on the high seas of narcotic goods or other goods the importation of which was prohibited, not being a part of the cargo but held by him on his person or in some personal luggage.

It is noticeable that the term in the section is "has in his possession", not "having had" but "has" in his possession.  It is not equivalent to a common form of provision, namely, "is found" with goods in possession.  The reference "has in his possession" cannot mean "has" when the officer boards the vessel or at some other time.  The only relation the "having possession" seems to me to have is to the period when the ship is in a port and not to any period when it is one the high seas.  The possession thus is relevant to importation.

In this connection, I may say I would not read par. (c) of s. 233B(1) as excluding possession on a ship in port, though the contrast between pars. (a) and (c) is that (a) contemplates that the goods are in possession on board the ship and (c) deals principally with the case of possession otherwise than in a ship.

I  should point out that I am not here concerned with questions of validity, not am I concerned to discuss whether the Parliament could by appropriate language create an offence in relation to possession of goods on a ship within territorial waters or, for that matter, on a ship carrying cargo to Australia.  My concern is with the section as it now is.  As I have pointed out, it obviously needs some implication to make good sense of the provision.  I have indicated what in my opinion is the implication which should be made.

Section 233B(1)(a), in my opinion, does not apply to a case where narcotic goods are in possession of a person on a ship which is not within the limits of a port in Australia and, in particular, that it does not apply to a person who has the goods in possession on a ship which happens to be, at some point of time during his possession, within the three mile limit.

I turn then to consider what are prohibited imports.  By definition through s. 51 they are goods the importation of which is prohibited.  But are they prohibited imports before they are imported?  The actual importer of such goods is caught by s. 233B(1)(b).  Persons holding them either for him or from him, in my opinion, are reached by s. 233B(1)(a) or 233B(1)(c), usually depending on whether or not the goods have been landed.  Section 233B(1)(ca) covers the case of possession in Australia where actual importation cannot be established but is reasonably suspected.

It is of interest to notice in passing that in the application of s. 233(1)(d) smuggled goods must be goods which have been imported.

It is convenient at this point to refer to the mechanism for prohibiting the importation of goods as a regulation of overseas trade and commerce.  It is observable that the manner of excluding goods in the exercise of the control of overseas trade and commerce is to authorize the specification of goods which may not be imported.  This has introduced into the regulation of trade and commerce the concept of importation as used in connection with the recovery of duties of customs.  A convenient drafting device has been adopted in the use of the description "prohibited imports" for goods the importation of which is forbidden.  The principal substantive provisions in the regulation of trade in goods are s. 233(1)(b) and s. 231(1)(a), which make it an offence to import any prohibited imports, that is to say, to import any goods the importation of which is prohibited.

Section 50(1) empowers the Governor-General, by regulation, to prohibit the importation of goods.  Under this power he may prohibit the importation of all goods except under licence.  He is not limited to prohibiting the importation of specific goods or of goods of a class.  The width of the power to proclaim the prohibition of importation may be seen in the decisions of this Court in Radio Corporation Pty  Ltd  v  The Commonwealth; ^[F11] Poole v  Wah Min Chan ^[F12] and Reg. v  McLennan; Ex parte Carr. ^[F13] Thus, the importation of all goods could be prohibited as the result of a regulation made under s. 50. In that case, all goods would be prohibited imports.

It was submitted that the expression "prohibited imports" described a class of goods identified by their proscription by regulation.  Thus it is said, wherever they may be,  if they fall within the description of the relevant regulation, they are prohibited imports, whether they are in fact imported or intended to be imported.  I am quite unable to accept this submission.  To my mind, it cannot have been the intention of the legislature in enacting s. 50 and s. 51 to so provide.  Apart from perhaps providing a ground to question the validity of provisions so construed, the result of that view indicates its unacceptability.  I have already pointed out the possibility of the prohibition of importation of all goods, e.g. without a licence to import.  It could scarcely be contemplated that possession anywhere of any goods was being proscribed.  But, further, marihuana grown in a suburban back-yard in an Australian city would on such a construction fulfil the description of the regulation made in respect of narcotic goods pursuant to s. 50.  Yet, obviously, it cannot have been intended to include the home-grown production in the expression "prohibited import".  Again, a locally printed text of a book the importation of which is prohibited cannot have been intended to fall within the provisions of the Customs Act.  Nor could a provision making possession of such a product or such a book an offence be within the competence of the Parliament.  In other words, in my opinion, to satisfy the expression "prohibited imports" the goods must be imports, they must have been imported.  Section 51 does no more than by a convenient drafting device describe goods which being imported will be prohibited imports, goods imported in breach of the prohibition of their import.  In my opinion, prohibited imports are imports the importation of which is prohibited.

The views I have so far expressed would be sufficient to dispose of the indictments and verdicts to which I earlier referred and which are the subject of question 1 (a) with the exception of the charge against Joseph Corns of knowingly allowing the vessel to be used in the importation of goods contrary to s. 233A.

The process of importation as distinct from the act of importation is not confined to what occurs at the actual time or place when and where the goods are imported.  The Court observed upon this circumstance in Forbes v  Traders Finance Corporation Ltd, ^[F14] when it decided that a motor vehicle used to carry goods away from the airport when they were prohibited imports was used in the importation of those goods.  It seems to me that a ship which is carrying goods for the purpose of their importation contrary to s. 233A may be used in the process of the importation of the goods though because of official intervention they are not, in the result, imported.  Close proximity of the vessel to the port of intended discharge at the time of official intervention will be a factor in deciding whether, there being in fact no importation, the vessel was so used.  It seems to be clear on the facts of the stated case that the master of the ship had knowledge of what he was carrying.  It could be concluded that he knew that the goods were to be imported into Australia and that, because of their nature, their importation was prohibited.  It could be inferred that to his knowledge it was through the port of Darwin by the same or another vessel that the cannabis was to be landed.  Thus, given the proximity of the vessel to the port, it could be held that he was knowingly allowing his ship to be used in the process of importation of the cannabis.  In my opinion, there was evidence to support a conviction of the master of the vessel under s. 233A of the Act by a competent court even though, due to the boarding of the vessel, the cannabis was not imported.

It becomes necessary therefore to consider and decide whether the Supreme Court of the Northern Territory had jurisdiction to try the master of the vessel for the breach of s. 233A of the Customs Act by an act not committed in the Northern Territory.  That Court's jurisdiction is entirely statutory and derives from s. 15 of the Northern Territory Supreme Court Act, which is in the following terms:

"(1)

The Supreme Court-

(a)

has, subject to this and any other Act and to any Ordinance, in relation to the Territory, the same original jurisdiction, both civil and criminal, as the Supreme Court of South Australia had in relation to the State of South Australia immediately before the first day of January, One thousand nine hundred and eleven;

(b)

has such jurisdiction, whether civil or criminal, as is from time to time vested in or conferred on the Supreme Court by Act or by Ordinance (including an Act or Ordinance passed or made before the commencement of this Act, as affected by sub-section (5) of section four of this Act);

(c)

has jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, being matters arising in, or under the laws in force in the Territory; and

(d)

has jurisdiction, with such exceptions and subject to such conditions as are provided by Act or by Ordinance, to hear and determine appeals from all judgments of inferior courts in the Territory given or pronounced after the commencement of this Act.

(2)

The jurisdiction of the Supreme Court of South Australia referred to in paragraph (a) of the last preceding sub-section includes jurisdiction that that Court had as federal jurisdiction.

(3)

The jurisdiction of the Supreme Court referred to in sub-section (1) of this section is in addition to the jurisdiction that the Court has under any Imperial Act."

I shall deal with the possibilities of jurisdiction, first, as equivalent in the Territory to that which the Supreme Court of South Australia had in relation to that State on 1st January 1911, other than federal jurisdiction vested in that Court by the Judiciary Act 1903-1910 and, second, as equivalent in the Northern Territory to that federal jurisdiction enjoyed by the Supreme Court of South Australia.  No suggestion has been made of any jurisdiction deriving from par. (b) of s. 15 (1).

We are concerned throughout this discussion with jurisdiction of the Supreme Court to try persons present within the colony or State as the case may be for acts committed on the high seas, which undoubtedly commence at low water mark.  We are not concerned with the powers of the legislature of the colony or State to pass extra-territorial laws.  Nor are we concerned with the question whether colonial or State legislatures had power to increase the jurisdiction of the courts locally administering the jurisdiction of the Admiral, cf. Prince v  Duncan: ^[F15]   or with the question whether a local legislature could empower its courts to try persons for acts committed on the high seas or some particular part of it against the laws of the State or colony.

The colony of South Australia was erected by letters patent issued pursuant to 4 & 5 Wm IV c. 95.  The letters patent were dated 19th February 1836 and were proclaimed in Holdfast Bay, South Australia, on 28th December 1836.  The letters described the boundaries of the land to be included in the colony.  It was over that area of land that Governor Hindmarsh was appointed Governor.  That area quite clearly, according to the description in the letters patent, was bounded in the south by the sea.  The colony, though graduating to self-government in relation to domestic as distinct from foreign affairs, remained a colony within the British Empire.  Its territorial boundaries did not alter when upon federation it became a State of the Commonwealth, though still within the Empire.  Thus a reference to the colony or State of South Australia was and is, in my opinion, a reference to a land territory bounded by the coastline, i.e. by low water mark on the shore, offshore islands and estuaries or water inter fauces apart.

It is, to my mind, abundantly clear that the Imperial Parliament throughout considered the waters within a marine league of the coasts of the colonies of the Empire as Imperial territorial waters and to be, so far as concerned the trial and punishment of offenders, within the jurisdiction of the Admiral.  Such offences are properly described as extra-territorial offences.  The very terms of the Territorial Waters Jurisdiction Act 1878 (Imp.) make those conclusions abundantly clear.

It is fundamental to a discussion of the jurisdiction of the Supreme Court of South Australia to bear in mind that the distinction between the jurisdiction of the courts of common law and that of the Admiral in criminal matters has never been eliminated.  The land and the high seas which begin at low water mark, so far as crime is concerned, remain in contrast.  What has occurred, historically, is that the judges of the courts of common law have been endowed with the capacity to exercise the jurisdiction of the Admiral in criminal matters and allowed in time to apply in its administration common law procedures rather than those of the civil law.  In this sense, as Holdsworth says, History of English Law, vol. 1, p. 551, "the criminal jurisdiction of the Admiralty was transferred to the judges of the courts of common law" and "the criminal jurisdiction of the Admiralty has thus for almost four centuries been exercised by the judges of the courts of common law".  The authority so exercised was with respect to offences committed by British subjects anywhere on the high seas  and by any person on a British ship on the high seas, and after the Act of 1878 by anybody in Imperial territorial waters, i.e. including foreigners on non-British ships.  The jurisdiction of the Admiral was not limited to any class of offence but extended to all offences, including those created by statute.  This authority, exercised by those who were judges of the common law courts, did not become part of the jurisdiction of the common law courts themselves.  But this distinction ceased to have any practical significance in England.  However, where, as was the case of the colonial courts, jurisdiction was given by reference to the jurisdiction of the common law courts, the distinction could be crucial, as indeed I think it is in the instant case.

There is no need for me to trace this progressive assignment of the administration of the jurisdiction of the Admiral to the judges of the common law courts in England or the procedural devices by which it was effected.  The criminal as distinct from the instance aspect of that jurisdiction ultimately came to rest with the Central Criminal Court in 1834 in respect of certain English counties, see 4 & 5 Wm IV c. 36:  and in 1844 with Justices of Assize holding commissions of oyer and terminer in other parts of England by virtue of 7 Vict. c. 2.  But it is necessary to trace the course by which the courts of general jurisdiction in the Australian colonies came to have authority to exercise the jurisdiction of the Admiral in respect of crimes committed on the high seas.

It was early felt in the colony of New South Wales that there should be a Supreme Court with power to try crimes, principally thought of as piracies, murders and conspiracies, committed on the high seas, particularly in the Pacific and the Tasman.  Accordingly, an exceptional course was taken by s. 4 of 9 Geo.  IV c. 83, by enacting that the Supreme Courts of New South Wales and of Van Diemen's Land, set up by charters under 4 Geo. IV c. 96, should have jurisdiction to hear and determine crimes committed by master or crew of a British ship or by a British subject upon the sea or elsewhere within the jurisdiction of the Admiral or in the islands of New Zealand, Otaheite or any other island in the Indian or Pacific Oceans not subject to the British Throne or to any European power.  This jurisdiction was that of the Supreme Court and not merely that of the Admiral exercised by the Supreme Court:  but it was clear that the crimes were to be such according to Imperial law and the punishments were fixed by Imperial law.  However, this course was not taken in connection with any other Australian colony.

Upon the creation of the colony of South Australia legislative power was given to the Governor by and with the advice of the Legislative Council of the colony to "erect, create, constitute and establish" a Court of Judicature.

Accordingly, by an Act of 1837, 7 Wm IV c. 5, the Supreme Court of the Province of South Australia was created.  Its jurisdiction was expressed by s. VII to be "cognizance of all pleas civil criminal and mixed and jurisdiction in all cases whatsoever as fully and amply in this Province and its dependencies as His Majesty's Courts of Kings Bench Common Pleas and Exchequer at Westminster or either of them lawfully have or hath in England".  The court was to be at all times a court of oyer and terminer and gaol delivery in and for the Province and its dependencies.  It was also made a court of equity and of ecclesiastical jurisdiction.  The jurisdiction of oyer and terminer here, in my opinion, was jurisdiction with respect to offences committed within the province.  Quite clearly, the Supreme Court was here given none of the jurisdiction of the Admiral instance or criminal.  Also, it did not obtain the authority to administer the criminal jurisdiction of the Admiral which was given to the Central Criminal Court in 1834 or to the Judges of Assize under the authority of 7 Vict. c. 2 (1844).

However, by 12 & 13 Vict. c. 96 (1849), the colonial courts with criminal jurisdiction were given jurisdiction to try persons charged with criminal acts within the jurisdiction of the Admiral.  It is plain from the terms of the Act that the crimes were such as the Admiral could try, that is to say, acts deemed criminal by Imperial law and the punishments were to be those for which that law provided.  This Act expressly preserved the special jurisdiction of the Supreme Courts of New South Wales and Van Diemen's Land given by the Act of 1828.  The Supreme Court of South Australia thus and to this extent obtained jurisdiction to try British subjects for crimes committed anywhere on the high seas and any person for crimes committed on British ships anywhere on the high seas, not limited in any case to crimes committed in or on British ships in Imperial territorial waters.  Incidentally, the passing of this Act makes it clear that a submission by the Crown that a jurisdiction equivalent to that of the Admiral came to the Supreme Court of South Australia by its constitution as a court of oyer and terminer in 1837 is unacceptable.  The distinction between the commission of oyer and terminer to try offences committed on the land and the commission of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiral is also plainly seen in the terms in which s. 1 of the Act of 1844 is expressed.  I need not further deal with that submission.

In 1874 the Imperial Parliament passed an Act 37 & 38 Vict. c. 27 "to regulate the Sentences imposed by Colonial Courts where jurisdiction to try is conferred by Imperial Acts".  Its preamble is in the following terms:

"WHEREAS by certain Acts of Parliament jurisdiction is conferred on courts in Her Majesty's colonies to try persons charged with certain crimes or offences, and doubts have arisen as to the proper sentences to be imposed upon conviction of such persons; and it is expedient to remove such doubts."

Its operative provision, s. 3, provided:

"3.

When, by virtue of any Act of Parliament now or hereafter to be passed, a person is tried in a court of any colony for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court, or if committed within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court, and to no other, anything in any Act to the contrary notwithstanding:  Provided always, that if the crime or offence is a crime or offence not punishable by the law of the colony in which the trial takes place, the person shall, on conviction, be liable to such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England."

It is quite plain from the terms of this section, first, that the crime or offence to which the section relates remains, as under the Act of 1849, a crime or offence by or against Imperial law and, second, that the high seas are wholly outside the territorial limits of the colony.  All that the statute did, in my opinion, was to authorize the imposition for an Imperial offence of what I might call the appropriate colonial penalty for a like offence committed within the limits of the colony, or if there should be no like offence under colonial law, the most appropriate English penalty.  It was submitted that this Act repealed the Act of 1849 in toto and gave to the colonial court authority to try persons for acts committed on the high seas declared by the colonial legislature to be punishable as crimes or offences.  But, in my opinion, such a submission is untenable.  After the passing of the Act of 1874 the extra-territorial jurisdiction of the Supreme Court, in my opinion, remained limited to the trial of persons for Imperial offences committed on the high seas.

The Territorial Waters Jurisdiction Act of 1878 (41 & 42 Vict. c. 73) made it clear that the particular offences specified by that Act (s. 4) committed by foreigners within territorial waters were triable within the jurisdiction of the Admiral subject to the certificate or leave mentioned in s. 3 of the Act.  Thus the Supreme Court of South Australia obtained jurisdiction with respect to the trial of the said offences committed by foreigners within Imperial territorial waters, not limited of course to waters within a marine league of the coast of South Australia.

Special provision was made by 23 & 24 Vict. c. 122 in 1860 for colonial legislatures to enact that where death resulting from a felonious act committed within the colony should take place on the high seas, the person guilty of the felonious act might be dealt with as if the entire offence, i.e. including the death, had taken place within the colony.  The Act is presently of interest only as indicating the limited capacity it was then considered a colonial legislature to have to make acts or events on the high seas criminal and triable in the colony.

It might here be observed that the views expressed by Lord Halsbury in Macleod v  Attorney-General (N.S.W.) ^[F16] in 1891 were founded at least in part on what was said by Parke B. in Jefferys v  Boosey, ^[F17] a case decided in 1854.

These Imperial statutes were not repealed or affected by the Colonial Courts of Admiralty Act, 1890 (53 & 54 Vict. c. 27) which created or made provision for the creation of colonial courts of Admiralty with a like jurisdiction in Admiralty to that of the High Court in England.

In 1856 the South Australian Act of 1837 and its amendments were consolidated by The Supreme Court Act, 19 Vict. 1855-1856, No. 31.  This Act did not relevently enlarge the jurisdiction of the Supreme Court.  It was the jurisdiction of the common law courts at Westminster which was the subject matter of s. 7 of that Act.  The jurisdiction of the judges there given was such as was necessary for carrying into effect those common law jurisdictions.

However, by the Supreme Court Procedure Act (No. 7 of 1866) the Supreme Court was given the powers of the Court of Exchequer on the revenue side and by the Supreme Court Act (No. 8 of 1867) s. 27, the Supreme Court "on the Crown side" was given a like jurisdiction in the colony to that which the Queens Bench at Westminster had on the Crown side and the Chief Justice and Judges of the Supreme Court were given the like jurisdiction, power and authority in the Supreme Court on its Crown side as the Chief Justice and the Judges of the Queens Bench had on the Crown side.

The passage of the 1867 Act was evidently prompted by the controversy as to the powers of the Supreme Court to issue the prerogative judicial writ of scire facias which was a central point in the case of Reg. v  Hughes ^[F18] decided in the Supreme Court of South Australia in August 1864 and in the Judicial Committee in February 1866.  The Act, by its reference to "the Crown side" was evidently concerned to confirm the power of the Supreme Court and its judges to issue prerogative writs in connection with matters occurring within the colony.

I have not found, nor have I been referred to, any statute of South Australia the terms of which are the equivalent of a grant of jurisdiction to the Supreme Court to try persons for acts done on the high seas which if done on the land would offend provisions of the local law.  Nor is there an Act of an extra-territorial nature which makes acts on the high seas offences against the local law punishable by the Supreme Court.  I refer to the high seas, for in this connection there is no significance in the territorial seas.  A law of the former kind would be necessary, in my opinion, to create the general jurisdiction in the Supreme Court of South Australia which the Crown claims the Supreme Court of the Northern Territory to have.

The situation therefore at the time of federation was that by virtue of Imperial law the Supreme Court of South Australia had jurisdiction to try Imperial crimes and offences, which included common law offences such as murder and manslaughter, committed anywhere on the high seas by British subjects, by any persons anywhere on British ships on the high seas and by any persons on any ship in Imperial territorial waters, and to inflict what I have called appropriate colonial punishments therefor.  Without repetition, I include in the high seas all those places where the Admiral had jurisdiction.  But it had no jurisdiction to try persons for acts done on the high seas of a kind which had only been made criminal in South Australia by South Australian statute.

As I have indicated, I am not here concerned with the extent of colonial legislative power to enact laws having extra-territorial effect, including the power to create offences as incidental to such laws and their execution, and to give jurisdiction to courts to try persons for such offences.  Having regard to the decision in Croft v  Dunphy, ^[F19] such a legislative power exercised for the peace, order and good government of the colony may be held to exist.  But a particular exercise of such a power, including the vesting of jurisdiction in the Supreme Court to try offences against such laws does not, in my opinion, affect the general jurisdiction of the Supreme Court relevant to s. 15 of the Northern Territory Supreme Court Act 1961-1973.  For example, a power to punish offences under a colonial Customs Act committed within a marine league of the coast does not create a general jurisdiction to try persons for all acts done extra-territorially which if done on the land would be offences criminally punishable.  To digress to mention an aspect of the invested federal jurisdiction derived from the Judiciary Act, to which I will later refer, the power to punish extra-territorial acts in breach of a colonial customs law does not support the conclusion that for that reason the State court derives jurisdiction from the Judiciary Act to try persons for breaches of the federal Customs Act committed extra-territorially.

Nothing occurred between 1900 and 1911 to increase the jurisdiction of the Supreme Court of South Australia in any relevant respect.  Thus, in my opinion, no general jurisdiction existed in 1911 in South Australia to try persons for acts not being Imperial offences within the jurisdiction of the Admiral and not committed in South Australia, whether as a result of the creation of the Supreme Court or of any colonial legislation giving jurisdiction or as a result of Imperial legislation.

It is appropriate here to refer to the decision of the Supreme Court of South Australia in Giles v  Tumminello. ^[F20]   A defendant was charged before a magistrate with larceny of some fishing gear contrary to s. 131 of the Criminal Law Consolidation Act 1935-1956 (S.A.) on the high seas some four and a half miles from the coastline of South Australia.  It was held that the magistrate had jurisdiction under the Justices Act, 1921-1960 (S.A.) to hear the charge and convict the defendant.

Upon the argument of a case stated by the magistrate for the opinion of the Supreme Court, it was submitted for the defendant that the only court in South Australia which had jurisdiction to hear and determine the charge, being jurisdiction derived from an Imperial statute, namely 12 & 13 Vict. c. 96, was the Supreme Court.  The Court did not express "any final opinion upon" that question but saw no reason why, if it were necessary to rely upon that Act, "it should not apply to enable a minor offence to be tried by a court of summary jurisdiction in the manner prescribed by the laws of the State".  But the Court expressed the view that "the jurisdiction given to the courts of the province was the jurisdiction of the English courts as it was in 1836, long after crimes committed on the sea had been made justiciable by the courts in England in the ordinary course of the administration of criminal justice, and, as the only venue was South Australia, the ground upon which the jurisdiction was originally restricted to dry land was inapplicable".  But the distinction between the jurisdiction of the Admiral and that of the courts of common law was fully maintained in England in 1836, and indeed, as I have pointed out, is still maintained.  What I have already written would indicate that I consider this conclusion of the Supreme Court to be mistaken.

It is not possible, in my opinion, to treat the grant of power to exercise the jurisdiction of the Admiral as a grant of jurisdiction to try offences created by the local legislature.  The grant of jurisdiction equivalent to that of the common law courts did not itself carry authority to try crimes extra-territorially committed.  I am unable to accept the reasoning of the Supreme Court or the conclusion that the Justices Act gave to the magistrate jurisdiction to try persons for acts done on the high seas which, if done in South Australia, would be in breach of the Criminal Law Consolidation Act.  In my opinion, Giles v  Tumminello ^[F21] was not correctly decided.

I turn now to the question whether the Judiciary Act 1903-1910 gave to the Supreme Court of South Australia a jurisdiction to try persons for acts committed on the high seas in breach of federal law.  Again, the discussion does not involve any question of constitutional power to vest such a jurisdiction in State courts. But no specific and express exercise of such an undoubted power has been made in the case of the Supreme Court of South Australia or of the Supreme Court of the Northern Territory.

Part X of the Judiciary Act deals specifically with the jurisdiction of State courts to try persons for federal offences.  To the extent that any effect of the general investiture of jurisdiction by s. 39(2) is not inconsistent with the specific provisions of Pt X, that section is operative to confer jurisdiction on State courts: see Adams v  Cleeve. ^[F22]   But s. 68(2) is express in its limitation of the investiture of State courts with respect to the trial and conviction on indictment of persons charged with offences against laws of the Parliament to the trial and conviction of such persons who have committed such offences within the State unless by State law they may be tried in the State for offences committed elsewhere.  This last condition refers, in my opinion, to the general jurisdiction of the State courts.  As I have already indicated, there is, in my opinion, no such jurisdiction in the Supreme Court of South Australia.  In my opinion, s. 39(2) of the Judiciary Act cannot operate to confer upon a State court jurisdiction to try a person for a federal offence not committed within the State.  Nothing in Adams v  Cleeve, ^[F23] in my opinion, lends any colour to such a proposition.  That case was concerned with rights of appeal to this Court and in no sense with the jurisdiction of a State court to try a person for a federal offence.  To construe s. 39(2) as giving the State courts jurisdiction to try persons for breaches of Acts of the Parliament not committed within the State would be to make it clearly inconsistent with s. 68(2).  In my opinion, by no process of construction is such a course warranted.

But, in any case, s. 39(2) in its express terms accommodates its operation to s. 68(2).  It invests the State courts with federal jurisdiction within the limits of their several jurisdictions, whether such limits are as to locality, subject matter or otherwise.  In my opinion, two matters are basic to the operation of the sub-section.  First, there is, in my opinion, the fact that the territory of South Australia, offshore islands and water inter fauces apart, is bounded on the south by low water mark of the coast and does not include the sea contained within the three mile limit.  Second, the principle that crime is local: the jurisdiction to try a person for crime depends on the commission of all the elements of the crime within the territory.  The Imperial Act of 1860 to which I have referred is indicative of the basic principle.

But where a court exercises the jurisdiction of the Admiral or has the benefit by local legislation of the provisions of the Act of 1860, no particular attention need be paid to questions of jurisdiction in the case of a common law offence wholly or partly committed below low water mark.  Thus, in the case of Plomp v  The Queen, ^[F24] to which reference was made in argument, attention was not paid, and had no need to be paid, to any question of jurisdiction.  The crime of murder committed on the high seas is a crime within the cognizance of the Admiral.  State Supreme Courts thus can try such a case by virtue of the Imperial Acts to which I have referred.

Section 39(2) recognizes that there are territorial limits to the jurisdiction of the State courts, including of course the Supreme Courts.  In my opinion, in the case of the trial of criminal offences, there is the definite limit to the Supreme Court's jurisdiction, namely, that the offence be committed within the territory of the State.  Accordingly, in my opinion, and apart from the clearly express and inconsistent provision of s. 68(2), the Supreme Court of South Australia did not by virtue of s. 39(2) of the Judiciary Act have jurisdiction to try a person for a federal crime not committed in the territory of South Australia.  Further, in my opinion, the expression "in relation to" in s. 15 of the Northern Territory Supreme Court Act is used definitively and not merely as a contrasting phrase.  It does introduce the territorial limitation of the jurisdiction granted.

This result is, to my mind, conformable to the public interest and convenience in the prosecution and trial of federal offences.  A notable feature of the Judiciary Act is the absence of any general power of remission of a case to some more convenient forum.  Consequently, if State courts had jurisdiction to try federal offences committed in another State the power would reside in the executive to choose its own venue: and the court chosen as the place of prosecution would have no means of protecting the accused by the remission of the case to the court of the place where the offence was committed.  When, in the Matrimonial Causes Act, 1959-1966, it was found desirable, because of the creation of a national domicile, to vest jurisdiction in all the Supreme Courts of the States to hear petitions, it was necessary to provide a power of remission to avoid injustice: see s. 26(2) of the Matrimonial Causes Act.  There is nothing incongruous in the conclusion that in respect of the trial of federal offences, the jurisdiction of the State courts is limited to offences committed within the State in question.

In my opinion, therefore, the Supreme Court of the Northern Territory had no jurisdiction to try the indictments in this case.

It is apparent, however, from this discussion and whatever the order of the Court in this case, that there is room for a more specific investiture of State courts with a jurisdiction to try federal offences committed on the high seas.  Perhaps some demarcation of an area of those seas might be made so as to correspond in some part with prolongations of the "lateral" boundaries of the States so as to localise any jurisdiction with respect to federal offences committed on the high seas: and in any case a power of remission to a more convenient venue might well be given. Further, the circumstances of this case point up the need for the Parliament to exercise its legislative power under s. 76(iii) and s. 77(iii) of the Constitution.  It is anomalous that the distinction between the jurisdiction of the Admiral in respect of the high seas and that of the courts of law should be maintained as it is at present.  It is highly inconvenient that in a matter of criminal jurisdiction the complexities disclosed in this case should remain.  It is also inappropriate at this time that, on the one hand, the power of a court in Australia to try extra-territorial offences should be derived from and be limited by Imperial legislation, and on the other hand, that such a court should have jurisdiction to try persons for Imperial offences committed anywhere on the high seas or where the Admiral has jurisdiction.

In my opinion, the questions to be answered in the stated case should be answered: 1.(a) No. 2. Unnecessary to answer. 3. Unnecessary to answer. 4.(a) None of the offences, except that with which the master Joseph Corns was charged were capable of being committed in the area between low water mark of the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof.

SUMMARY OF INDICTMENT

Count 1

Statement of Offence

Importing prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(b) of the Customs Act 1901-1971.

Particulars

Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on or about 1st March 1973 near Charles Point did import into Australia prohibited imports namely about 31,000 grams of cannabis.

Count 2

Statement of Offence

Attempt to import prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(b) of the said Act.

Particulars

Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on or about 1st March 1973 did attempt to import into Australia a prohibited import namely about 31,000 grams of cannabis.

Count 3

Statement of Offence

Possession on a ship of prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(a) of the said Act.

Particulars

Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on or about 1st March 1973 near Charles Point did without reasonable excuse have in their possession on board a ship namely the vessel Mariana a prohibited import namely about 31,000 grams of cannabis.

Count 4

Statement of Offence

Possession of prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(c) of the said Act.

Particulars

Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on or about 1st March 1973 near Charles Point without reasonable excuse had in their possession prohibited imports namely about 31,000 grams of cannabis which had been imported into Australia in contravention of the said Act.

Count 5

Statement of Offence

Assembling to prevent the seizure of prohibited imports to which s. 231 (1) of the Customs Act 1901-1971 applies: contrary to s. 231(1)(c) of the said Act.

Particulars

Barry Richard Bull, John Plithakis, Joseph Corns and Gregory James Conn on or about 1st March 1973 did assemble on the vessel Mariana for the purpose of preventing the seizure of a prohibited import namely 31,000 grams of cannabis in contravention of the said Act.

Count 6

Statement of Offence

Importing a prohibited import to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(d) of the said Act.

Particulars

Gregory James Conn on or about 1st March 1973 did import into Australia a prohibited import namely about 14.8 grams of cannabis resin in contravention of the said Act.

Count 7

Statement of Offence

Attempt to import prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(b) of the said Act.

Particulars

Gregory James Conn on or about 1st March 1973 did attempt to import into Australia a prohibited import namely about 14.8 grams of cannabis resin.

Count 8

Statement of Offence

Possession on a ship of a prohibited import to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(a) of the said Act.

Particulars

Gregory James Conn on or about 1st March 1973 did without reasonable excuse have in his possession on board a ship namely the vessel Mariana a prohibited import namely about 14.8 grams of cannabis resin.

Count 9

Statement of Offence

Possession of prohibited imports to which s. 233B of the Customs Act 1901-1971 applies: contrary to s. 233B (1)(c) of the said Act.

Particulars

Gregory James Conn on or about 1st March 1973 near Charles Point without reasonable excuse did have in his possession a prohibited import namely about 14.8 grams of cannabis resin.

Count 10

Statement of Offence

Assemble to import prohibited imports to which s. 231(1) of the Customs Act 1901-1971 applies: contrary to s. 231(1)(a) of the said Act.

Particulars

Joseph Corns on 15th February 1973 at Darwin did assemble with Barry Richard Bull and John Plithakis for the purpose of importing prohibited imports being narcotic goods namely an undetermined quantity of cannabis.

Count 11

Statement of Offence

Being the master of a ship, knowingly suffered her to be used in the importation of goods in contravention of the Customs Act 1901-1971: contrary to s. 233A of the said Act.

Particulars

Joseph Corns on 1st March 1973 near Charles Point in the Northern Territory of Australia being the master of a ship, namely the vessel Mariana, knowingly suffered the said ship to be used in the importation of goods in contravention of the Customs Act 1901-1971, namely about 31,000 grams of cannabis which are narcotic goods.

Count 12

Statement of Offence

Conspiracy to commit an offence against a law of the Commonwealth: contrary to s. 86(1) of the Crimes Act 1914-1973.

Particulars

Barry Richard Bull, John Plithakis, Gregory James Conn and Joseph Corns on divers days between 23rd January 1973 and 2nd March 1973 at Darwin in the Northern Territory of Australia and elsewhere conspired together and with John David Belment Wholagan and with other persons unknown to commit an offence against s. 233B of the Customs Act 1901-1971 that is to say to import into Australia prohibited imports to which that section applies namely a quantity of cannabis.