¹ In fact the disputes in both Canada and Australia are still far from being completely resolved. The political process remains engaged in addressing the issues in each country: Cullen, R, “Bass Strait Revenue Raising: A Case of One Government Too Many?” (1988) 6 Journal of Energy and Natural Resources Law 213.CrossRefGoogle Scholar

² Howard, C, Australian Federal Constitutional Law (3rd ed 1985) 96.Google Scholar

³ Victoria has developed a large (and heavily protected) manufacturing base, New South Wales has the greatest share of heavy industry, Tasmania's economy is dominated by its hydro electricity system, South Australia has a mixed manufacturing and rural bias, whilst Western Australia and Queensland have come to rely heavily on export extraction industries. Nevertheless, the “remarkable resemblance between the economic structures of the various States” noted, in 1946, by Professor Greenwood in his book The Future of Australian Federalism,(1976) 338 has by no means disappeared. In all States the rural sector continues to be of significant (if diminishing) importance. Thus in 1987-1988 wool was comfortably Australia's most significant export. “Boom makes wool our biggest export”, Melbourne Herald, 15 August 1988.

⁴ Simpson, , “Harmony's umbrella opens again”, Toronto Globe and Mail, 18 February 1985.Google Scholar

⁵ See ss 16-23 of the Canadian Charter of Rights and Freedoms.

⁶ Gilbert, CD, Australian and Canadian Federalism 1867-1984,(1986) 156Google Scholar; Martin, C, “Newfoundland's Case on Offshore Minerals: A Brief Outline” (1975) 7 Ottawa Law Review 34, 56Google Scholar; Hogg, PW “The Theory and Practice of Constitutional Reform” 1981 19 Alberta Law Review 335.Google Scholar

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⁸ Cruickshank, , “B C's Bennett, native son marks decade in power”, Toronto Globe and Mail, 11 October 1985.Google Scholar

⁹ CD Gilbert, supra n 6, 156.

¹⁰ Agreement Concerning Automotive Products, 16 January 1965, United States - Canada, 17 UST. 1372 TIAS No. 6093. This agreement, which has been in place for over 20 years, is a bilateral, sectoral, free trade agreement (with safeguards).

¹¹ Cairns, AC, “The Electoral System and the Party System in Canada, 1921-1965”, and “The Constitutional, Legal and Historical Background to the Elections of 1979 and 1980” in D E Williams (ed) Constitution Government and Society in Canada: Selected Essays by Alan C Cairns (1988). The Atlantic Provinces comprise Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland.Google Scholar

¹² It may be that the system of 'preferential' or 'transferable' voting long used in federal elections in Australia has been a factor in this phenomenon.

¹³ Hartwell, CM “The Pastoral Ascendency”, in G Greenwood (ed) A Social and Political History of Australia (1955) 83.Google Scholar

¹⁴ Albinski, HS, Canadian and Australian Politics in Comparative Perspective (1973) 6.Google Scholar

¹⁵ The Colony of New South Wales proved to be a stumbling block on more than one occasion, not because it was against federation, but because it felt it was entitled to special concessions in the federal settlement. One sticking point, for example, was the location of the national capital. This was resolved by making Melbourne, the capital of Victoria, the temporary capital of Australia until the new national capital, Canberra, was built on federal territory located within New South Wales.

¹⁶ H S Albinski, supra n 14, 8 and 31.

¹⁷ The word is an acronym formed from the term, Australian and New Zealand Army Corps.

¹⁸ There has been a constant stream of books, plays and films on the ANZAC theme over the years. ANZAC day, April 25, is still a more significant national day than Australia Day. The ANZAC myth remains controversial. In the last decade, for example, feminists have begun to question, again, the war glorification elements in the myth. However, the ANZAC theme has never attracted any regionally based controversy and for the majority it remains a point of significant national focus.

¹⁹ Smiley, DV, Canada in Question: Federalism in the Eighties (1980) ch 8Google Scholar; Bell, DVJ, “Regionalism in the Canadian Community”, in Fox (ed) Politics: Canada (5th ed 1982) 128.Google Scholar

²⁰ Australia also experienced a bitter conscription debate during the First World War. It was not regionally focussed, however. Its adverse influence on the Australian sense of nationhood was for that reason, inter alia,more limited than the effect of the same debate in Canada.

²¹ This crisis involved two kidnappings (one of which had a fatal outcome) by the Quebec Liberation Front (the FLQ) and the proclamation, by Ottawa, of a state of war emergency in what is now seen generally as an over-reaction to the problem. See Hogg, PW, Constitutional ww of Canada (2nd ed 1985) 388Google Scholar; and Morton, DA, A Short History of Canada (1984) 253-256.CrossRefGoogle Scholar

²² H S Albinski,supra n 14, 47. One often cited index of the difference between Canada and the United States is the lower incidence of violence in Canada. The homicide rate in Canada in 1984 was one third that of the United States, for example. “Your fears of murder”,Toronto Globe and Mail,6 August 1986.

²³ C D Gilbert, supra n 6, 2. Canada does not have one single constituent document as its Constitution. The principal document remains the British North America Act 1867 (UK). In 1982, when the Canadian Constitution was patriated, the Canada Act 1982 (UK), was passed by the UK Parliament. Schedule B to that Act was the Constitution Act 1982 which, bys 53(2), changed the name of the British North America Act 1867 (UK), to the Constitution Act 1867. For further details see PW Hogg, supra n 21, 5 and 831-894. The principal constituent document for Australia is contained in the Commonwealth of Australia Constitution Act 1900 (UK). The Australian Constitution forms s 9 of that Act. Hereinafter, the respective constituent documents will be referred to by self explanatory abbreviations.

²⁴ Wheare, KC, Modern Constitutions (2nd ed 1966) 20.Google Scholar

²⁵ C D Gilbert, supra n 6, 2.

²⁶ Ibid 3.

²⁷ From time to time, the terms Dominion and Commonwealth are employed in this paper to denote the central governments in Canada and Australia respectively. Although these terms (and especially Dominion) are somewhat dated, they have been retained as an aid to clarity in preference to using the more ambiguous (in this context) terms, Canada and Australia.

²⁸ (1931) 44 CLR 492.

²⁹ Ibid 526-527.

³⁰ (1982) 150 CLR 169.

³¹ Irifra n 40 and accompanying text.

³² Supra n 30, 191-192.

³³ [1958] SCR 626, 640-64I.

³⁴ Although most Commonwealth powers are held concurrently with the States, s 109 of the Australian Constitution states that in the case of any inconsistency of laws, the Commonwealth law prevails.

³⁵ C D Gilbert,supra n 6, 6.

³⁶ The High Court has allowed only one such dispute to go to the Privy Council: Colonial Sugar Refining Company Ltd v Attorney-General for the Commonwealth (1912) 15 CLR 182.

³⁷ PW Hogg, supra n 21, 89.

³⁸ Ibid 1-8.

³⁹ Ibid 353-354.

⁴⁰ Ex parte McLean (1930) 43 CLR 472,483 per Dixon J and C D Gilbert, supra n 6, Chapter 8.

⁴¹ CD Gilbert, supra n 6, 153.

⁴² PW Hogg, supra n 21, 603-604.

⁴³ Gold Seal v Attorney-General of Alberta (1921) 62 SCR 424 andAtlantic Smoke Shops v Conlon [1943] AC 550.

⁴⁴ Such a claim is made in J R S Prichard and J Benedickson, “Securing the Canadian Economic Union”, in Trebilcock, MJPrichard, JRSCourchene, TWhalley, J (eds) Federalism and the Canadian Economic Union (1983) 34.Google Scholar

⁴⁵ James v Commonwealth (1936) 55 CLR I (PC).

⁴⁶ (1972) 124 CLR 529, 575.

⁴⁷ (1978) 140 CLR 120.

⁴⁸ (1980) 145 CLR 266. Mason, Jacobs, JJ had argued in the Clark King case ((1978) 140 CLR 120 at 193) that the monopolistic scheme had been “the only practical and reasonable manner of regulation” of the wheat industry. Jacobs J retired from the court before the Uebergang case was heard.Google Scholar

⁴⁹ For procedural reasons, the Uebergang case did not result in a ruling on the validity of the wheat scheme.

⁵⁰ (1988) 62 ALJR 303. The history of s 92 litigation and the impact of the case are discussed at length in Cullen, R, “Section 92: Quo Vadis?” (1989) 19 U WA L Rev (forthcoming).Google Scholar

⁵¹ In Cole v Whitfield (1988) 62 AUR 303, 313, the High Court made it clear that the Commonwealth's power in s 51 (i) to regulate interstate trade and commerce is to be read as a plenary not a peripheral power. Moreover, it suggests that the relationship between s 51 (i) and the newly interpreted s 92 is such that s 92 most likely would not, now, be greatly inhibitive of Commonwealth exercise of its trade and commerce power. And the court goes on to add (at 314) that, even when a Commonwealth measure regulating trade and commerce might, standing alone, be discriminatory, if it were an element in national scheme comprising complementary State and Commonwealth laws, that discriminatory ingredient might well be neutralised.

⁵² It is arguable, eg, that the case of limited entry schemes to manage State fisheries may contravene s 117. These schemes favour the participation of intrastate fishermen at the expense of interstate fishermen who wish to fish the same areas.

⁵³ The relevant cases include: Davies and Jones v Western Australia (1904) 2 CLR 29; Lee Fay v Vincent (1908) 7 CLR 389; and Henry v Boehm (1973) 128 CLR 482. There is a body of opinion that the court has seriously misconstrued the section in these cases. See, eg, the discussion in Coper, M, Encounters with the Australian Constitution (1988) 313-319. The section is due for a possible reconsideration by the High Court in the pending (at the time of writing) cases of Re Robertson and Street v Queensland Bar Association. (Refer also, in this regard,to Street v Queensland Bar Association (1988) 62 ALJR 437 and Re Robertson (1988) 62 ALJR 438 dealing with granting of special leave to appeal). See also, infra n 60.Google Scholar

⁵⁴ See M J Trebilcock, J Whalley, C Rogerson and I Ness, “Provincially induced barriers to trade in Canada: a survey”, in Trebilcock et al, supra n 44, 243, where the authors describe, in some detail, Provincial Government procurement policies. All of the Provinces have mechanisms in place for showing at least some bias towards local firms. The maritime Provinces, Newfoundland, Quebec and British Columbia tend to have the most explicitly preferential regimes.

⁵⁵ Regulation by the States of interstate transport has been confined, since the mid 1950s, principally to safety concerns such as axle load limits, road worthiness, driver performance and so on. All serious attempts to tax directly the operations of purely interstate road transport largely have been abandoned by State Governments. Truck drivers mounted successful blockades of the main interstate arteries in the late 1970s and early 1980s as part of their campaign to rid themselves of what they considered to be iniquitous State road taxes. The continuing turbulence in the industry was evidenced by another nationwide interstate highway blockade in July, 1988.

⁵⁶ It may be that the new s 92 jurisprudence (supra n 50 and accompanying text) will facilitate a firmer national regulation of the industry than was hitherto thought possible.

⁵⁷ Trebilcock et al, supra n 54.

⁵⁸ In Ontario and British Columbia, for example, locally produced wines have a mark up, for retail sale, only about half that imposed onall other wines imported into the Province for resale. Only Manitoba and Prince Edward Island appear to maintain liquor retailing regimes which largely do not treat imported alcoholic beverages in a discriminatory fashion. See Trebilcock et al,supra n 44, 263-266.

⁵⁹ D V Smiley,supra n 19, 161.

⁶⁰ This issue currently is being tested with respect to s 92 (and s 117) in two cases pending (at the time of writing) before the High Court;Street v Queensland Bar Association and Re Robertson. (Seesupra n 53.) The Full Court of the Supreme Court of Queensland found, inRe Street (1987) 74 ALR 605, that neither s 117 nor s 92 invalidated the then rules of the Queensland Bar Association requiring that a barrister be resident in Queensland in order to be admitted to practise in that State. However, the court dealt with the s 117 argument in a perfunctory (and inexact) fashion. More importantly, the court's views on the s 92 argument were based on the paraphenalia of the 'criterion of liability' test, now rejected and replaced by the High Court inCole v Whitfield (1988) 62 ALJR 303 with the substantive discrimination test.(Supra n 50 and accompanying text.)

⁶¹ PW Hogg,supra n 21, 651-652.

⁶² I am aware that the 'nationalisation' of issues (such as abortion regulation and Sunday trading and so on) by the Charter may, in due course, lead to a greater homogeneity of Provincial laws. From this it can be argued that this process of nationalisation and legislative reaction will lead to the development of an enhanced national consciousness in Canada. Should this occur (and I do not see it happening to a significant degree quickly) I do not believe the decline of regionalism is a necessary corollary. There is nothing necessarily incompatible between harmonised Provincial law making in a number of areas and the maintenance of strong regional identities, ex-Prime Minister Trudeau's expectations notwithstanding. See Cairns, AC, “The Canadian Constitutional Experiment” in D E Williams (ed)Constitution Government and Society in Canada: Selected Essays by Alan C Cairns (1988) ch 8.Google Scholar

⁶³ It is true that, since 1%7, the Supreme Court of Canada has been dropping hints as to the possibility of the Federal Government having wider powers to implement municipally, international treaty obligations than was historically thought to be the case: Reference Re Ownership of Offshore Mineral Rights (1967) 65 DLR (2d) 353, 376;McDonald vVapor Canada [1972] 2 SCR 134, 167-172; and Schneider v The Queen [1982] 2 SCR 112, 134-135. However, Ottawa has not seen fit to take up the hints. Constitutional uncertainty about the validity of the hints and more importantly, regional political pressures, likely guarantee that federal treaty implementation adventures, such as those undertaken in Australia, (see infra text at 113-118) are highly improbable in the case of Canada.

⁶⁴ Section 33 of the Charter of Rights and Freedoms.

⁶⁵ Bill 178, An Act to amend the Charter of the French Language 1988 (Quebec), s 10.

⁶⁶ The wide scope of this power has received recent further endorsement by the High Court of Australia inThe Commonwealth v Tasmania (1983) 46 ALR 625 (theFranklin Dam case). In this case, 3 of the 4:3 majority judges said that the s 51(xx) corporations power gave the Commonwealth the power to regulateall the activities of corporations; not just their trading or financial activities: Mason, Murphy and Deane JJ at 710-714, 736 and 813- 815 respectively. Brennan J,the fourth majority judge, was not prepared to commit himself on this point but he adopted a very wide reading of what was meant by the term, trading activities; 789-790. Legislation to implement a Commonwealth companies and securities regime has been enacted. See also, the opinion of the former Commonwealth Solicitor-General, Sir Maurice Byers QC supporting, essentially, this wide view of the power in s 51(xx) in Report of the Senate Standing Committee on Constitutional and Legal Affairs;The Role of Parliament in Relation to a National Companies Scheme (1987) 89.

⁶⁷ P W Hogg,supra n 21, 460-461; 473-475; and ch 22.

⁶⁸ D V Smiley,supra n 19, 162.

⁶⁹ New South Wales vCommonwealth (1908) 7 CLR 179.

⁷⁰ South Australia vCommonwealth (1942) 65 CLR 373 (theFirst Uniform Tax case).

⁷¹ PW Hogg,supra n 21, 114-117. See also Part VI of the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act, S C 1977, c 10 with respect to the transfer of 'tax points' from the Dominion to the Provinces.

⁷² Crommelin, M, “Federal-State Cooperation on Natural Resources: The Australian Experience”, in J O Saunders (ed) Managing Natural Resources in a Federal State (1986) 295, 316.Google Scholar

⁷³ This fiscal measure was endorsed by the Privy Council inAtlantic Smoke Shops v Conlan

⁷⁴ Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599. In this case the High Court held that Victorian Government pipeline licensing fees (albeit at the rate of $50 million per annum) were invalid as being duties of excise.

⁷⁵ (1985) 57 ALR 417. In this case the High Court concluded that an abattoir's licence fee, calculated by reference to the number of animals slaughtered, was actually an excise duty and therefore invalid.

⁷⁶ This formal constitutional change, through s 128 of the Australian Constitution, is the most profound change ever achieved by that mechanism.

⁷⁷ S 105A(5) of the Australian Constitution.

⁷⁸ (1932) 46 CLR 155. See also C Howard, supra n 2, 167-170.

⁷⁹ Partridge, PH, “Depression and War”, in G Greenwood (ed Australia: A Social and Political History (1955) 364.Google Scholar

⁸⁰ Ibid 381.

⁸¹ PW Hogg, supra n 21, 477-480.

⁸² Ibid 477-480 and 531. The federalpower to disallow statutes, which was frequently exercis d by thedominant Federal Government in the early days of confederation, waslast used in 1943. The better view today is that the power is dormantif not entirely dead:ibid 90.

⁸³ A bitter struggle between a number of coastalStates and Washington unfolded in the United States shortly after the Second World War. The legal dispute, as in the case of Australia and Canada, was resolved, in the courts, and in the Federal Government's favour:United States v California 332 US 19 (1947);United States v Louisiana 339 US 699(1950);United States v Texas 399 US707 (1950) andUnited States vMaine 420 US 515 (1975). The judicialoutcome has been the subject of subsequent legislativemodification.

⁸⁴ O'Connell, DP,International Law of the Sea, (1982) ch 1Google Scholar and O'Connell, DP International Law (1965) i, 524ff give a full account of thesedevelopments.Google Scholar

⁸⁵ O'Connell, DP, International Law (1965)i 526Google Scholar

⁸⁶ (1876) 13 Cox CC 403.

⁸⁷ The majority was 7:6, however one judge, who would have made the majority 8:6, died before judgment was handed down,ibid 542.

⁸⁸ Coulson, HJWForbes, US,>The Law Relating to Waters:Sea,Tidal and Inland (1880) 10.The+Law+Relating+to+Waters:Sea,Tidal+and+Inland+(1880)+10.>Google Scholar

⁸⁹ (1876) 13 Cox CC 403; see Cullen, R,Australian Federalism Offshore (2nd ed 1988) 45-46.Google Scholar

⁹⁰ The 1958 Convention on the Continental Shelf, Article 2.3.

⁹¹ R Cullen,supra n 89, 12-16.

⁹² Reference Re Ownership of Qffshore Mineral Rights (1967) 65 DLR (2d) 353. Unlike Australia, both Provincial and Federal Governments in Canada are able to obtain 'advisory opinions' from their respective superior courts by 'referring' questions to these courts. P W Hogg, supra n 21, 150-151.

⁹³ Cullen, R,Federalism in Action:The Canadian and Australian Offshore Disputes Compared,(forthcoming, 1990) Part 3-1.Google Scholar

⁹⁴ In fact, by this time, the Province of Newfoundland was already claiming sovereign rights in the continental shelf area in the context of a dispute with France over that area (Head, IL, “The Legal Clamour over Canadian Off-shore Minerals” (1966) Alberta Law Review 312,317). The French claim was (and still is) associated with the last remaining North American French dependancy, the islands of St Pierre and Miquelon, just off the southern coast of Newfoundland.Google Scholar

⁹⁵ The reasons for it doing so are not clear. It has been suggested that it was for reasons of simplicity. Head, IL, “The Canadian Offshore Minerals Reference: The Application of International Law to a Federal Constitution” (1968) 18 University of Toronto Law Journal 131, 133.CrossRefGoogle Scholar

⁹⁶ Harrison, R, “Jurisdiction over the Canadian Offshore: A Sea of Confusion” (1979) 17 Osgoode Hall Law Journal 469Google Scholar, and McEvoy, J, “Atlantic Canada: The Constitutional Offshore: Regime” (1984) 8 Dalhousie Law Journal 284.Google Scholar

⁹⁷ All gas supplies until then came from manufactured coal gas.

⁹⁸ The terms of the 1967 Australian Offshore Petroleum Settlement made this a most unlikely political option as it purported to control the imposition ofall royalties on offshore oil and gas by joint action of both levels of government.

⁹⁹ Forbes, JRSLang, AG,Australian Mining and Petroleum Laws (2nd ed 1987) 45-47.Google Scholar

¹⁰⁰ R Cullen,supra n 89, 29.

¹⁰¹ id.

¹⁰² Report from the Senate Select Committee on Offshore Petroleum Resources (1971) para 2.1.

¹⁰³ In Re Judiciary Act 1903-1920 and Navigation Act 1912-1920 (1921) 29 CLR 257. For further discussion see Howard,supra n 2, 260-261. Proposals to amend the Australian Constitution to allow the High Court to give advisory opinions continue to be debated from time to time.

¹⁰⁴ (1969) 122 CLR 177.

¹⁰⁵ (1967) 65 DLR (2d) 353.

¹⁰⁶ (1876) 13 Cox CC 403.

¹⁰⁷ New South Wales v Commonwealth (1975) 135 CLR 337.

¹⁰⁸ 'Leading' in the sense that it was the judgment of the Chief Justice and in the sense that it, of the majority judgments, put the Commonwealth's case comprehensively.

¹⁰⁹ (1969) 122 CLR 177.

¹¹⁰ In the 1967 British Columbia Reference the court said that the territorial sea was within the territory of Canada although it seemed to say so as a mere aside without any thought being given to the consequences of the remark.

¹¹¹ (1976) 135 CLR 507. Further recent endorsement of the wide scope ofoffshore State extraterritorial legislature competence adumbrated by Gibbs J in this case has just been given by the High Court inUnion Steamship Co of Australia Ltd v King (1988) 62 ALJR 645. See further,infra n 120.

¹¹² (1977) 138 CLR 283.

¹¹³ (1982) 39 ALR 417.

¹¹⁴ (1983) 46 ALR 625.

¹¹⁵ (1985) 59 ALJR 265.

¹¹⁶ (1988) 62 ALJR 158.

¹¹⁷ The High Court has expressed the view in these cases that the Commonwealth can legislate municipallyin the absence of a treaty where it can demonstrate that it is dealing with a matter of international concern. As Dawson J put it in the Tasmanian Forests case, the presence of a treaty is simply clear evidence of the existence of an international concern rather than a separate category permitting domestic legislation based on s 51(xxix).

¹¹⁸ See also, comments on these differences in Final Report of the Constitutional Commission (1988) ii,734-735.

¹¹⁹ Australia still has not declared a territorial sea of twelve nautical miles. Canada did so in 1970; Section 3 of the Territorial Seas and Fishing Zones Act S C 1964, c 22.

¹²⁰ Supra nn 112-113 and accompanying text. It may be that this uncertainty has been reduced substantially since the scheme was implemented in 1983. First, the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) both (ins 2) provide that the States have power to legislate extraterritorially “for the peace order and good government” of each State. The problem with this formulation, though, is that it arguably does no more than codify the existing general law position (supra R Cullen n 89, 108-1 IO; for a contrary view see Moshinsky, M, “State Extraterritorial Legislation and the Australia Acts 1986” (1987) 61 ALJ 779)Google Scholar. Secondly, the existence of the State Title Act itself may provide the necessary nexus or link with a State to permit the exercise of plenary legislative competence by each State in its respective coastal waters zone. The High Court decision in Union Steamship Co of Australia Ltd v King (1988) 62 ALJR 645 would appear to support this line of argument. Although it restates the need for a nexus it does so in terms favourable to the likelihood of such State plenary legislative competence prevailing in these offshore zones. (See also, R Cullen, supra n 89, 107-108.)

¹²¹ See Quick, JGarran, RR, Annotated Constitution of the Australian Commonwealth, (1901) 651Google Scholar; Nettheim, G, “The Power to Abolish Appeals to the Privy Council from Australian Courts” (1965) 39 ALJ 39Google Scholar; R D Lumb, “Section 51, pl (xxxviii) of the Commonwealth Constitution” (1981) 55 ALJ 328; Lumb, RDRyan, KW, Constitution of the Commonwealth of Australia Annotated (3rd ed 1981) 213Google Scholar; Crommelin, , “Offshore Mining and Petroleum; Constitutional Issues”(l981) 3 Australian Mining and Petroleum Law Journal 191Google Scholar; Booker, K, “Section 5l(XXXVIII) of the Constitution” (1981) 4 University of New South Wales Law Journal 91Google Scholar; and Zines, LR, The High Court and the Constitution (2nd ed 1987) 273-279. Virtually all recent commentators claim that, notwithstanding its obscurity, they can explain what the provision means. The writer of this paper confesses to being a victim of this vanity also.Google Scholar

¹²² 1926 was the year of the (second) Balfour Declaration on the independent status of entities of the British Empire such as Canada and Australia, and 1942 was the year of adoption of the Statute of Westminster 1931 (UK) by Australia. The movement towards this declaration was given significant impetus by the actions of the British Government in 1922 in response to the threat by Kemal Ataturk to take Constantinople. Prime Minister Lloyd George warned Ataturk that any such move would mean war. The press statement so warning threatened retaliation not just from Britain but from the Dominions. Unfortunately, due to a communication breakdown, the first the Dominions heard of their possible involvement in yet another European War was this press statement. The Chanak crisis, as it is known, hastened the process leading to the Balfour Declaration significantly. The most dramatic use of the Dominions' new found freedom under the Statute of Westminster occurred within six years of its enactment: the Irish Free State used it to turn itself into the Republic oflreland. (Woodward, EL, A History of England (1979) 199-205). The more famous Balfour Declaration was that of 1917 which promised Zionists a national home in Palestine.Google Scholar

¹²³ The current Federal Labor Government is committed in its platform to dismantling the 1979 Australian Offshore Settlement.

¹²⁴ Re Strait of Georgia (1977) 1 BCLR 97.

¹²⁵ Inland waters are best regarded as,inter alia, waters of the sea which for geographical or historical usage reasons form part of the primary territory of a coastal state. See further, R Cullen,supra n 89, 8-12.

¹²⁶ Re Attorney General of Canada and Attorney General of British Columbia (1984) 8 DLR (4th) 161.

¹²⁷ See the Canada-Nova Scotia Oil and Gas Agreement Act, S C 1984, c 43. The Provincial counterpart is the Canada-Nova Scotia Oil and Gas Agreement (Nova Scotia) Act, SNS 1984,C 2.

¹²⁸ John Chadwick, St,Newfoundland Island into Province,(1967) 1.Google Scholar

¹²⁹ The vote in favour of union at the second referendum held on the question (the first was indecisive) was 52.33%.

¹³⁰ Reference Re Mineral and Other Natural Resources of the Continental Shelf (1983)145 DLR (3d) 9.

¹³¹ Canada now has a declared territorial sea of twelve nautical miles.

¹³² The formalities for lodging an appeal to the Supreme Court of Canada on this question have been completed by the Federal Government although it has not, to date, been proceeded with.

¹³³ Reference Re the Seabed and Subsoil of the Continental Shelf Offshore Newfoundland (1984)5 DLR (4th) 385.

¹³⁴ See Canada-Newfoundland Atlantic Accord Implementation Act, S C 1987, c 3; and Canada-Newfoundland Atlantic Accord Implementation (Newfoundland) Act, S N 1986, c 37.

¹³⁵ New South Wales v Commonwealth (1975) 135 CLR 337.

¹³⁶ The other 95% has gone to the Commonwealth Government.

¹³⁷ See Fordham and the State of Victoria v Evans and Others (Federal Court of Australia, I 13 November 1987, unreported decision of Jenkinson J), where the court endorsed theI Commonwealth's power to provide detailed direction as to the manner in which the Victorian State Minister responsible for the offshore was to carry out his duties.

¹³⁸ Reference Re Ownership of Offshore Mineral Rights (1967) 65 DLR (2d) 353.I

¹³⁹ In 1975 it was, ultimately, able to force an election upon a popularly elected government in the House of Representatives which had some 18 months of its term to run.

¹⁴⁰ The Senate has been, historically, a chamber controlled by thefederal political parties in just the same way as the House of Representatives. Its role in the constitutional crisis of 1975 exemplifies this pattern: C Howard,supra n 2,94-98

¹⁴¹ Supra n 6 and accompanying text.

¹⁴² Australia is, of course, as a recipient of large scale immigration from around the world, a diverse society. But this is a diversity of relatively recent origin with only tentative Australian roots. More importantly, it is spread throughout the country; it is not geographically clustered on a State by State basis.

¹⁴³ As put by Professor Cairns, a “constitution is not a once-for-all achievement but a continuous creation”: Cairns, AC, “Author's Introduction” in D E Williams (ed)Constitution Government and Society in Canada (1988) 12.Google Scholar