Between: R
And: Bull

Judges: Barwick CJ
McTiernan 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

Melbourne

Judgment by:
Mason J

I have had the advantage of reading the reasons for judgment prepared by Gibbs J. I agree with the answers which he proposes to the questions of law which have been reserved for the consideration of this Court by the learned trial judge under s. 72 of the Judiciary Act 1903 (Cth) (as amended) and with the orders which he proposes.

I shall state my reasons for concluding that the Supreme Court of the Northern Territory had jurisdiction to hear and determine the charges upon which the accused were convicted; in other respects I agree with the reasons for judgment prepared by Gibbs J.

In my view jurisdiction to hear and determine the charges upon which the accused were convicted was conferred by s. 15(1) and (2) of the Northern Territory Supreme Court Act 1961-1966. By sub-s. (1) of s. 15 the Supreme Court of the Territory was given "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" 1st January 1911. By sub-s. (2) this grant of jurisdiction was expressed to include the jurisdiction that the Supreme Court of South Australia had as federal jurisdiction.

The Supreme Court of South Australia was established by an Act or Ordinance, 7 Wm IV. No. 5, of the Colony (then called "the Province") of South Australia. The original Act or Ordinance and those which amended it were consolidated by Act No. 31 of 1855-1856, assented to on 19th June 1856. By s. 7 of this Act it was provided that the Supreme Court of South Australia,

"shall have 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 Her Majesty's Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in and for the said Province and its dependencies; and the said Judge so appointed or hereafter to be appointed as aforesaid, shall have and exercise such and the like jurisdiction and authority in this Province and its dependencies as the Judges of the said Courts of King's Bench, Common Pleas, and Exchequer, or any of them lawfully have and exercise, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the said Supreme Court".

In 1867 additional powers were conferred on the Supreme Court by the statute 31 Vict. No. 8 (S.A.). Section 27 of this Act provided:

"The Supreme Court on the Crown side shall have the like jurisdiction, power, and authority within the said Province as Her Majesty's Court of Queen's Bench in England hath on the Crown side thereof; and the Chief Justice and Judges of the said Supreme Court for the time being shall have the like jurisdiction, power, and authority, in the said Supreme Court, on the Crown side thereof, as the Chief Justice and the Judges of the Court of Queen's Bench have in England on the Crown side thereof ..."

The Judiciary Act 1903-1910 (Cth) conferred federal jurisdiction on the Supreme Court of South Australia immediately before 1st January 1911. The relevant provisions were s. 39(2) and s. 68(2). Section 39(2) conferred federal jurisdiction on the several courts of the States "within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise". Section 68(2) provided that the several courts of a State exercising jurisdiction with respect to the trial and conviction on indictment of offenders or persons charged with offences against the laws of the States should have the like jurisdiction "with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere ..."

The Customs Act 1901-1910 (Cth), Pt XIV provided that customs prosecutions might be instituted in the Supreme Courts of the States (s. 245). However, it seems that this provision should not be regarded as vesting jurisdiction in a Supreme Court independently of the provisions of the Judiciary Act. Consequently, the federal jurisdiction of the Supreme Court of South Australia at the relevant time depended on the grant of jurisdiction flowing from the lastmentioned Act.

This is not the occasion to undertake an exposition of the precise relationship between s. 39(2) and s. 68(2) of the Judiciary Act. For present purposes it is sufficient to say that it has been accepted that the specific provision made in s. 68(2) respecting the conferment of jurisdiction on State courts with respect to persons charged with offences against the laws of the Commonwealth does not displace, in criminal matters, the general grant of federal jurisdiction which flows from s. 39(2). "To exclude its operation upon any part of federal jurisdiction, more is required than a special provision conferring part of the jurisdiction, either original or appellate, which s. 39 also confers." (Adams v  Cleeve). ^[F73]

The initial question, therefore, is whether federal jurisdiction to hear and determine the offences under the Customs Act of which the accused were convicted was conferred by s. 39(2). On the argument presented on behalf of the accused the answer to that question turns on the limits (as to locality) which are said to attach to the jurisdiction of the Supreme Court of South Australia under State law, for it was submitted that by virtue of the two South Australian enactments to which I have referred the jurisdiction of the Supreme Court was limited to the hearing and determination of offences committed within the territorial boundaries of the State which, I shall assume, without so deciding, end at low water mark.

It is to be observed that the consequence for which the accused's counsel contends stems not from any constitutional impediment in the legislative power of the Commonwealth Parliament under s. 77(iii) of the Constitution to invest a State court with federal jurisdiction to hear and determine offences against laws of the Commonwealth committed outside the confines of the State. It was not suggested that the Commonwealth lacked such a power; indeed, it was conceded that such a power has been asserted in the Fisheries Act 1952 (as amended) and the Pearl Fisheries Act 1952 (as amended), by which a State court has been invested with jurisdiction to hear and determine offences committed outside the boundaries of the State in which the court sits. The want of jurisdiction, if the argument for the accused be correct, is brought about by the manner in which s. 39(2) is expressed and is to that extent a self-inflicted limitation on the investment of federal jurisdiction.

Whether the grant of criminal jurisdiction to the Supreme Court of South Australia was initially limited to the hearing and determination of offences committed on land depends on the terms of s. 7 of Act No. 31 of 1855-1856 and s. 27 of the Act 31 Vict. No. 8. It is said that these sections did no more than vest in the Supreme Court the same jurisdiction as that possessed by the common law courts of Westminster, in particular that possessed by the Court of Queen's Bench, and that Reg. v  Keyn ^[F74] stands as authority for the proposition that the jurisdiction of the common law courts did not extend to the trial of offences committed beyond low water mark. It follows, according to the argument, that the Supreme Court's jurisdiction did not extend to offences committed beyond low water mark.

The constraint upon the criminal jurisdiction of the common law courts in England was of ancient origin, deriving from the jurisdiction of the Lord High Admiral to try offences committed upon the high seas. By 1363 it was acknowledged that the Admiral's jurisdiction with respect to offences committed on the high seas was exclusive and that the common law courts did not enjoy concurrent jurisdiction. To safeguard the common law courts against the expanding jurisdiction of the Admiralty two statutes were passed in the reign of Richard II (13 Ric. II c. 5 and 15 Ric. II c. 3) by which the jurisdiction of the Admiralty was restricted to things done upon the sea and in the main streams of great rivers to the seaward side of the bridges.

The Admiral's jurisdiction extended to treasons, felonies, robberies, murders and confederacies committed in or upon the high seas or in rivers "below bridges where the tide ebbs and flows and where great ships go" (Reg. v  Anderson). ^[F75] It seems that the jurisdiction was confined to indictable offences. It was said to have its basis in the concept that a ship on the high seas is a floating part of British territory (Reg. v  Anderson), ^[F76] although it has been stated more recently that English criminal law applies on British ships because they fall under the protection of Her Majesty with the consequence that all persons aboard, whatever their national status, are subject to her laws (Reg. v  Gordon-Finlayson). ^[F77]

By the Offences at Sea Act, 1536 (28 Hen. VIII c. 15) it was provided that all treasons, felonies, robberies, murders and confederacies committed in or upon the sea or in any place where the Admiral had jurisdiction should be heard and determined by "three or four substantial persons" as might be appointed by the King's commission and that the offenders should be tried, convicted and punished before such commissioners as if they had been tried, convicted and punished for offences committed upon the land. In 1799 this Act was extended to the trial of all offences committed on the high  seas (39 Geo. III c. 37).

It became the practice to issue special commissions under the Act of 1536 to try Admiralty offences to the judges of the common law courts. The Central Criminal Court Act of 1834 (4 & 5 Wm IV. c. 36) conferred on the judges of that Court the Admiralty jurisdiction previously exercised by special commissioners. Later, in 1844, by 7 & 8 Vict. c. 2, s. 1, it was provided that Justices of Assizes or others acting under commissions of oyer and terminer or gaol delivery should have all the powers given by any Act to commissioners of oyer and terminer for the trying of offences committed within the jurisdiction of the Admiral.

It has been said that the Offences at Sea Act, 1536 "has ultimately produced the simple result that all crimes committed at sea can be tried before any court in England, otherwise competent" (Stephen, History of the Criminal Law of England (1883), vol. II, p. 19). This observation is in accord with the remark of Cockburn C.J. in Reg. v  Keyn, ^[F78] when, speaking with reference to the Offences at Sea Act, 1536, he said, "It simply transferred the jurisdiction of the admiral, talem qualem, to the common law courts, to be exercised according to the procedure of the common law". However, in my view Sir William Holdsworth was more accurate when he said that "the indirect result of" the Act was "to transfer the criminal jurisdiction of the Admiralty to the judges of the courts of common law" (History of English Law, vol. I, p. 551). Although 7 & 8 Vict. c. 2, s. 4 speaks of the jurisdiction of the Central Criminal Court to try Admiralty offences, the Act of 1536 and the later statutes did not transfer the Admiralty jurisdiction to the common law courts; they did no more than transfer the exercise of the jurisdiction to persons appointed by commission who incidentally happened to be judges of the common law courts, including Justices of Assizes and others who held commissions of oyer and terminer or gaol delivery.

To overcome delays and difficulties encountered in bringing back offenders to England for trial, statutes were enacted which ultimately had the effect of vesting Admiralty criminal jurisdiction in colonial courts. The Supreme Courts of Calcutta, Madras and Bombay had Admiralty jurisdiction by virtue of the Acts and charters by which they were constituted - see Stephen, History of the Criminal Law of England, vol. II, p. 21, and 33 Geo. III c. 52, s. 156.  The Supreme Courts of New South Wales and Van Diemen's Land were given Admiralty jurisdiction by 4 Geo. IV c. 96 (1823) and 9 Geo IV c. 83 (1828).

In 1849 a general grant to colonial courts of Admiralty criminal jurisdiction was made by 12 & 13 Vict. c. 96.  By s. 1 it provided,

"That if any person within any colony shall be charged with the commission of any treason, piracy, felony ... or other offence, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or if any person charged with the commission of any such offence upon the sea, or in any such haven, river, creek, or place shall be brought for trial to any colony, then and in every such case all Magistrates ... Judges, Courts ... in such colony shall ... exercise the same jurisdiction ... and they are hereby respectively authorized ... to institute and carry on all such proceedings for the bringing of such person so charged ... to trial ... as by the law of such colony would and ought  to have been ... exercised or instituted and carried on ... if such offence had been committed, and such person had been charged with having committed the same, upon any waters situate within the limits of any such colony, and within the limits of the local jurisdiction of the courts of criminal justice of such colony."

Section II provided that on conviction a person should be liable to the same penalty as would be prescribed if the offence had been committed and determined in England.  The statute applied to the  Supreme Court of South Australia on its establishment.  In view of its provisions it was no doubt thought unnecessary to include in the constitution of the Supreme Court of South Australia specific provision enabling it to exercise Admiralty jurisdiction.

However, doubts arose as to the proper sentences to be imposed on offenders brought before colonial courts pursuant to the Act of 1849.  To overcome this difficulty the Courts (Colonial) Jurisdiction Act, 1874 (37 & 38 Vict. c. 27) was enacted.  By s. 3 it provided:

"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."

The Act of 1849 had the result, as the Judicial Committee said in Reg. v  Mount, ^[F79] that "the Imperial Legislature was conferring power upon the colonies to try offences properly cognizable in England, with the consequences which would have attended a trial there".  The language of s. I, in referring to offences "committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction", was indistinguishable from the expressions used in the Act of 1536 and the later statutes by which the Admiralty jurisdiction became exerciseable by special commissions and later by the judges of the common law courts.  This circumstance, taken together with the short title to the Act, by which it was described as "An Act to provide for the Prosecution and Trial in Her Majesty's Colonies of Offences committed within the jurisdiction of the Admiralty", made it inevitable, to use the words of the Judicial Committee in Mount's Case, ^[F80] that the Act was one "conferring Admiralty jurisdiction on the colonies".

I am unable to give any different character to the Act of 1874.  Its sole purpose was, as its preamble indicates, to remove doubts as to the proper sentence to be imposed on conviction in cases where jurisdiction to try the offence was conferred by Imperial Acts of Parliament and it substituted the penalties prescribed by colonial law for those prescribed by English law.  It did not purport to confer a new jurisdiction on colonial courts; it prescribed the penalties to be imposed in cases in which colonial courts were exercising jurisdiction conferred by other Imperial Acts.  The Acts referred to plainly included the Act of 1849 which conferred a jurisdiction to try offences against English, not colonial, law.

The jurisdiction of colonial courts was extended to include the hearing and determination of offences committed on the open sea within the territorial waters of a colony by the Territorial Waters Jurisdiction Act, 1878 but, again, its operation was confined to offences against "the law of England for the time being in force"-see definition of "offence" in s. 4.

In the light of the statutory provisions I conclude that by 1867 neither the Courts of Queen's Bench, Common Pleas and Exchequer at Westminster, nor the judges of the Court of Queen's Bench in virtue of their office, as distinct from the judges at common law, possessed jurisdiction to try Admiralty offences committed beyond low water mark and that, accordingly, such a jurisdiction was not vested in the Supreme Court of South Australia by the two South Australian Acts, assuming the coastal boundary of the Colony to have been coincident with low water mark.  Likewise, I am of opinion that the Acts of 1849 and 1874 did not confer on the Supreme Court jurisdiction to try offences against colonial law committed at sea.  However, these conclusions do not dispose of the issue of jurisdiction, for it is necessary to ascertain whether a jurisdiction to try offences committed beyond low water mark was entrusted to the Supreme Court by South Australian law before 1st January 1911.

It is beyond question that a doctrine of extra-territorial legislative incompetence was thought to apply to colonial legislatures in the nineteenth century.  It found its clearest expression in Macleod v  Attorney-General (N.S.W.). ^[F81]   However, in so far as the reasoning in Macleod's Case rests upon the doctrine of extra-territorial incompetence, as distinct from a principle of statutory construction, its authority is qualified by the decision and the reasoning in Croft v  Dunphy. ^[F82]

That decision related to a Customs Act enacted by the Parliament of the Dominion of Canada, not to an enactment of a colonial legislature.  Nevertheless, the decision did not turn on the Statute of Westminster, 1931 and the reasoning is applicable to colonial legislatures having plenary powers of legislation for the peace, order and good government of a colony (Bonser v  La Macchia). ^[F83]    The judgment delivered by Lord Macmillan calls in aid the well-known observations made in Reg. v  Burah ^[F84] and Hodge v  The Queen, ^[F85] in connection with the grant of plenary powers of legislation.  In these cases the Judicial Committee was dealing with statutes of the Indian Legislature and the Legislature of Ontario, neither of which was regarded as possessing full sovereignty in the sense in which this expression has been applied to the Dominions.  The approach taken was to pose the question whether the legislation was within the power conferred.  The statement that, once the legislation is seen to fall within the grant of power, "their Lordships see no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully Sovereign State" is not, I think, to be taken as indicating that the approach taken is inappropriate to States and Colonies.  Croft v  Dunphy ^[F86] itself indicates that there is a sufficient nexus between the provisions in customs legislation applying to ships beyond territorial waters and the peace, order and good government of a territory to bring it within a general grant of legislative power so expressed.  The decision did not turn on the circumstance that the relevant head of legislative power was specific, not general.

Even in the nineteenth century, long before Croft v  Dunphy , the doctrine of extra-territorial incompetence was not regarded as an impediment to the operation of colonial legislation in territorial waters surrounding a colony.  Professor O'Connell in his chapter "Australian Coastal Jurisdiction" in International Law in Australia, pp. 272-279, refers to opinions of the Law Offices and the Instructions to the Governor of Western Australia in 1888 which make it clear that the British Government considered that colonial legislation, otherwise valid, had an operation in the territorial waters of a colony.  The Instructions to the Governor of Western Australia contained the following statement:

"To state the position briefly, this Act, like any other colonial law, cannot be applied more than three miles from the coast, and if it is necessary to regulate the Pearl Shell Fishery as carried on beyond that limit, it will be necessary to have recourse to the Federal Council."

There are strong grounds for thinking that s. 15 of the Federal Council of Australasia Act of 1885 proceeded on this view, conceding to the colonies a power to apply their legislation in territorial waters.  It enabled the Council to legislate in respect of fisheries and the custody of offenders on board ships belonging to colonial governments "beyond territorial limits" (s. 15 (c) and (g)), an expression which in the context may well have signified the outer margin of territorial waters (see Bonser v  La Macchia). ^[F87]

Quick and Garran state:

"Upon its (i.e. a British ship's) entry into the territorial waters, that is within the three mile limit of any colony, say Western Australia, it still remained subject to British Merchant Shipping Acts, but in addition thereto it became subject to the local laws of Western Australia, Civil and Criminal, including local navigation and shipping regulations, so far as those laws and regulations were not contrary to British Merchant Shipping Acts.  On leaving the ports of Western Australia and passing beyond the three mile limit, the British ship ceased to be subject to West Australian laws, and became once more subject only to Imperial laws." (Annotated Constitution of the Australian Commonwealth, p. 360.)

The view seems to have had its origin in the principles of international law and the recognition which it accorded to the operation of the legislation of the coastal State throughout the territorial sea.  However, the origin of the view is not of present importance; what is significant is that it was acknowledged that colonial legislation had an application in territorial waters.

Granted that the legislature of a colony, having power to legislate for the peace, order and good government of the colony, could make laws having an application in territorial waters surrounding the colony, the inevitable consequence is that the legislature could also vest in the courts of the colony a jurisdiction to hear and determine offences committed against those laws by persons brought before the courts of the colony.  The existence of the traditional jurisdiction in Admiralty in connection with offences committed on the high seas (including territorial waters) in my opinion constituted no bar to a colonial legislature vesting such a jurisdiction in its own courts.

The general grant of legislative power to the Australian Colonies included power to enact customs legislation.  In the exercise of that power Customs Acts and Customs Tariff Acts were enacted.  The Customs Acts, following the English model, contained provisions having an application to British ships within territorial waters.  These provisions, if not observed, gave rise to criminal offences.  It is, I think, beyond question that these Acts were, and were always regarded as, valid laws and that they did not contravene the so-called doctrine of extra-territorial legislative incompetence.

The Customs Act, 1864 (S.A.) contained a number of provisions expressed to have, or necessarily having, an application within territorial waters (see ss. 160, 161, 162, 167, 168, 170, 171 and 185).  Non-compliance with many of these provisions rendered the offender liable to forfeiture of property, or penalty.  Indeed, s. 10 of the Act provided:

The provisions of this Act shall include and extend to the limits of the said Province and the waters thereof, and one nautical league seaward from highwater-mark on the coast of the said Province."

Jurisdiction in respect of offences under the Act (which were, it seems, summary offences) was conferred on the Supreme Court - see ss. 211, 212 and 217.  Thus the Act created a jurisdiction in the Supreme Court to deal with offences committed in territorial waters, subject to the qualification that s. 10 refers to a nautical league from "highwater-mark", the jurisdiction thus conferred being additional to that which the Court possessed under the Acts of 1855-1856 and 1867.  These Acts did not constitute any bar to the conferment of additional jurisdiction on the Supreme Court by other Acts of the South Australian Legislature.

Nor did the Act of 1855-1856 prevent the vesting in the Supreme Court of an ordinary (that is, a non-Admiralty) jurisdiction with respect to offences committed beyond low water mark.  And in my view the Act of 1864 should not be regarded as conferring Admiralty jurisdiction; it was not expressed to involve any transfer of jurisdiction otherwise invested in the Admiralty Court.

The Customs Act, 1864 was not repealed by the Parliament of South Australia until 1934.  It did not impose duties of customs and it was not repealed by s. 90 of the Constitution.  In my opinion it continued in force until 4th October 1901 when it was rendered inoperative under s. 109 of the Constitution by inconsistent Commonwealth legislation in the form of the Customs Act 1901 (Cth).  That Act gave jurisdiction in respect of customs prosecutions to the Supreme Courts of the States as well as the High Court before the enactment of the Judiciary Act 1903 (s. 245).  Although it may be doubted whether the expression "Customs Prosecutions" included prosecutions proceedings by way of indictment (see s. 244, cf. s. 254(2)), s. 245 conferred jurisdiction in respect of summary proceedings for the punishment of offences against the Act. Subsequently the jurisdiction formed part of the general jurisdiction conferred by the Judiciary Act on the conditions set out in s. 39(2).  It is of no moment that the jurisdiction of the Supreme Court to deal with offences committed in territorial waters may have been limited to offences triable summarily: what is of importance is that the suggested limitation on the Court's jurisdiction, viz. a lack of jurisdiction to deal with offences committed in territorial waters, had no foundation.

In the result, therefore, I am of opinion that immediately before 1st January 1911 the Supreme Court was not without jurisdiction to hear and determine offences committed in territorial waters.