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Published online by Cambridge University Press: 24 January 2025
In 1971, FA Trindade argued that the doctrine of extraterritorial legislative incompetence (hereafter the doctrine of extraterritoriality) no longer applied to Australian State Parliaments. His general thesis was that the doctrine no longer applied, either because it had virtually ceased to exist at common law after the Privy Council decision in Croft v Dunphy in 1933, or because the doctrine had been impliedly repealed so far as the States were concerned by s 5 of the Colonial Laws Validity Act 1865 (UK) (CLVA). Since 1971, the High Court of Australia has had occasion to consider the extraterritoriality rule several times, and now the topic has received express legislative provision in the Australian Commonwealth and United Kingdom statutes that are collectively known as the Australia Acts 1986. The overall purpose of these statutes is to eliminate any residual legislative, executive, or judicial authority of the United Kingdom over Australia and its States. Part of this legislative plan involves the extraterritoriality doctrine as it applied to the Australian States. It is the aim of this article to examine the impact of the Australia Acts upon the extraterritoriality principle.
I would like to express my appreciation of the assistance from the office of Senator David MacGibbon, Senator for Queensland in the Commonwealth Parliament. However, the views expressed in this article are those of the writer alone.
1 Trindade, FA, “The Australian States and the Doctrine of Extra-territorial Legislative Incompetence” (1971) 45 ALJ 233Google Scholar.
2 [1933] AC 156.
3 There are two substantive enactments, the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). With the exception of their formal parts, the two Acts are identical in language and the numbering of sections. The Commonwealth version was enacted in reliance on s 5 l(xxxviii) of the Commonwealth Constitution. All six Australian States passed Acts requesting and consenting that the Commonwealth enact the Australia Act 1986 (Cth), under the procedure laid down ins 51 (xxxviii) of the Constitution. See the Australia Acts (Request) Act 1985 (Qld) for a representative example of the States' “requesting” legislation. The Australia Act 1986 (UK) was passed by the British Parliament following the passage of Commonwealth legislation that requested and consented to the UK Parliament passing the Australia Act 1986 (UK). See the Australia (Request and Consent) Act 1985 (Cth). The Commonwealth request to the UK was an exercise of the procedure contained ins 4 of the Statute of Westminster 1931 (UK). The States had previously legislatively asked the Commonwealth to pass the Australia (Request and Consent) Act 1985 (Cth); see, eg the Australia Acts (Request) Act 1985 (Qld). This tripartite UK-Commonwealth-State scheme of legislation had its origins in a Commonwealth-State agreement dating back to 1982: see H Reps Deb 1985 2685 (13 November).
4 Trindade, supra nl, 233. The doctrine should not be confused with the presumption in statutory interpretation that, in the absence of factors indicating otherwise, general words in an Act are read as being prima facie restricted in their operation to the territory within the political boundaries of the enacting jurisdiction: see DC Pearce, Statutory Interpretation in Australia (2nd ed 1981) 81-82. The presumption against extraterritoriality assumes constitutional capacity to pass extraterritorial laws if so worded. The doctrine of extraterritoriality, on the other hand, denies that capacity at the outset. A useful case illustrating the distinction between presumption and doctrine is Ex parte Iskra [1963] SR (NSW) 538.
5 See the account in DP O'Connell, “The Doctrine of Colonial Extra-Territorial Legislative Incompetence” (1959) 75 LQR 318, 319-322; Pearce v Florenca (1976) 135 CLR 507,514 per Gibbs J.
6 Macleod v Attorney-General (NSW) [1891] AC 455, 458-459 per Lord Halsbury. See also O'Connell,supra n5, 320.
7 Croft v Dunphy (1933) AC 156, 162, 164 per Lord Macmillan; Pearce v Florenca (1976) 135 CLR 507, 515 per Gibbs J; Robinson v Western Australian Museum (1977) 138 CLR 283, 294 perBarwick CJ.
8 See O'Connell, supra n 5, 320-322.
9 Constitution Act 1867-1986 (Qld) s 2.
10 Pearce v Florenca (1976) 135 CLR 507, 515 per Gibbs J. Windeyer J has rejected this explanation:R v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256, 308.
11 Bonser v La Macchia (1969) 122 CLR 177, 189, 191-192 per Barwick CJ; 202,203 per Kitto J; 209, 211 per Menzies J; 225, 227-229 per Windeyer J; New South Wales v The Commonwealth (1975) 135 CLR 337, 367, 369, 371 per Barwick CJ; 468-469 per Mason J; 494-495 per Jacobs J; Pearce v Florenca (1976) 135 CLR 507, 512 per Barwick CJ; 518-520 per Gibbs J; 522 per Stephen J; 522, 524 per Mason J; 526-527 per Jacobs J; Robinson v Western Australian Museum (1977) 138 CLR 283, 294-295 per Barwick CJ; 303-305 per Gibbs J; 330-331 per Mason J.
12 (1981) 148 CLR 1, 21.
13 New South Wales v The Commonwealth (1975) 135 CLR 337.
14 For some examples of these, see ibid404-405, 442-443.
15 Gibbs J effectively admits this in Pearce v Florenca (1976) 135 CLR 507, 518-519.
16 Wacando v The Commonwealth (1981) 148 CLR I, 29.
17 Supra n1O.
18 [1893] AC 339.
19 (1937) 56 CLR 337.
20 Johnson v Commissioner of Stamp Duties [1956] AC 331, 353 per Lord Keith of Avonholm;Ex parte Iskra [1963] SR (NSW) 538, 550per Brereton J;Welker v Hewett (1969) 120 CLR 503, 512- 513per Kitto J;Thompson v Commissioner of Stamp Duties [1969] I AC 320,335per Lord Pearson;CoxvTomat(l972) 126CLR 105, 109-110, Ill, 113perBarwickCJ; 114-115perMenziesJ;,127,129 per Gibbs J; Pearce v Florenca (1976) 135 CLR 507, 517;perGibbs J; Traut v Rogers (1984) 70 FLR 17, 19-20 per Forster CJ, Muirhead and O'Leary JJ.
21 (1937) 56 CLR 337, 375.
22 [1933] AC 156.
23 Ibid 163,per Lord Macmillan.
24 R v Bull (1974) 131 CLR 203,231 per Barwick CJ; 263 per Gibbs J; 271 per Stephen J; 280-281 per Mason J; Pearce v Florenca (1976) 135 CLR 507, 516perGibbs J; 522per Mason J; Robinson v Western Australian Museum (1977) 138 CLR 283, 305 per Gibbs J; 331 per Mason J: See also Barnes v Cameron [1975] Qd R 128, 136 per Lucas J.
25 Supra n20.
26 (1976) 135 CLR 507.
27 Ibid 515. It appears that Trindade and Gibbs J arrived independently at this conclusion, since the former is not cited by the latter: P Hanks, Australian Constitutional Law (3rd ed 1985) 291.
28 (1972) 126 CLR 105.
29 (1977) 138 CLR 283.
30 Barwick CJ and Murphy J.
31 [1891] AC 455.
32 Section 1.
33 Section l 1.
34 Sections 8 and 9.
35 Sections 7(5) and 10.
36 Section 3(2).
37 Section 6. This provision is substantially a re-enactment of the “manner-and-form” proviso in s 5 of the Colonial Laws Validity Act.
38 Section 3: “It is hereby declared and enacted that the Parliament of a Dominion has full power to make laws having extra-territorial operation.”
39 SeeTrustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220, 239per Evatt J. However, the more accepted view of s 3 is probably that it effected a real reform of this branch of the law: see R v Foster: ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256, 267per Dixon CJ (Fullagar and Kitto JJ concurring); 305per Windeyer J.
40 Particularly if the Statute of Westminster is regarded as a statute “prior to” or “in pari materia” with the Australia Acts for the purposes of statutory interpretation: see DC Pearce, supra n4 67, 70- 71.
41 The Commonwealth's extraterritorial legislative powers are total, and quite untrammelled by even the mild, Dixonian restraints upon extraterritorial powers-at least since the Commonwealth's adoption of the Statute of Westminster in I942. The Commonwealth Parliament's extraterritorial powers, within its fields of constitutional competence, are equal to those of the United Kingdom Parliament: see R v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256, 267-268per Dixon CJ (Fullagar and Kitto JJ concurring); 305, 306-307per Windeyer J;Pearce v Florenca (1976) 135 CLR 507, 515-516per Gibbs J; andRobinson v Western Australian Museum (1977) 138 CLR 283, 294per Barwick CJ. The Commonwealth's extraterritorial powers may also be located in s 51(xxix) of the Federal Constitution. In theSeas and Submerged Lands case, Barwick CJ, Mason and Jacobs JJ thought that s51(xxix) enabled the Commonwealth to pass laws concerning any matter, place, thing or person geographically external to Australia:New South Wales vCommonwealth (1975) 135 CLR 337, 360, 471, 497.
42 PW Hogg,Constitutional Law of Canada (2nd ed 1985) 370 n7;R vFoster; ex parte Eastern and Australian Steamship Co Ltd (1959) l03 CLR 256, 308per Windeyer J.
43 For a detailed list of the relevant statutory provisions, see RD Lumb, The Constitutions of the Australian States
44 Eg the opening words of s 91 of the Constitution Act 1867 (as amended) UK. This statute, formerly known as the British North America Act 1867 (UK), was renamed by the Canada Act 1982 (UK) and contains the major part of the Canadian Constitution.
45 Cobb &Co Ltd v Kropp [1967] 1 AC 141, 154per Lord Morris of Borth-y-Gest.
46 Riel v R (1885) LR IO App Cas 675, 678 per Lord Halsbury.
47 R v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) l03 CLR 256, 308 per
48 Cobb &Co Ltd vKropp [1967] 1 AC 141, 154-156.
49 (1984) 36 SASR 376. The case is discussed by G Walker, “Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion” (1985) 59 AU 276.
50 Grace Bible Church v Reedman (1984) 36 SASR 376, 387. See also 383-384per Zelling J; 389-390per Millhouse J.
51 (1984) 70 FLR 17, 20.
52 (1986) 7 NSWLR 372. The case is noted on the “peace, welfare and good government” point, in (1987) 61 AU 53.
53 (1986) 7 NSWLR 372, 413.
54 Ibid 406 and 407 respectively. Kirby P, however, leaned noticeably towards aRiel-type view of “peace, welfare and good government”.
55 Ibid 387.
56 Ibid 421.
57 (1885) LR 10 App Cas 675.
58 [1967] 1 AC 141.
59 (1984) 36 SASR 376.
60 (1984) 70 FLR 17.
61 For apre-Broken Hill South intimation of this view, seeTrustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220, 236, 240per Evatt J.Post-Broken Hill South examples areR v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256, 307-308per Windeyer J;Welker v Hewett (1969) 120 CLR 503, 512per Kitto J (Barwick CJ and Menzies J concurring);Bonser v La Macchia (1969) 122 CLR 177, 226per Windeyer J;Cox v Tomat (1972) 126 CLR l05, l09-1 IOper Barwick CJ, 114per Menzies J;Pearce v Florenca (1976) 135 CLR 507, 517-518per Gibbs J; andRobinson v Western Australian Museum (1977) 138 CLR 283, 294-295per Barwick CJ. See alsoBarnes v Cameron (1975] Qd R 128, 136 per Lucas J (for the Qld FC).
62 New South Wales v Commonwealth (1975) 135 CLR 337.
63 Ibid 498.
64 Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337, 375.
65 (1976) 135 CLR 507, 517.
66 (1984) 70 FLR 17.
61 Ibid 20.
68 Supra n6 I.
69 (1885) LR 10 App Cas 675.
70 Under s 15AB(2)(f) of the Acts Interpretation Act 1901 (Cth) as amended. The Second Reading speeches by Ministers in either House of the Commonwealth Parliament are admissible to help explain ambiguous or obscure provisions in Commonwealth Acts. This would probably not allow resort to State or UK parliamentary debates to explain Commonwealth legislative provisions, but I include these references for interest's sake.
71 House of Commons Debates 1986, 6th series, vol 91, 81-92.
72 Sen Deb 1985, 2552 (29 November).
73 H Reps Deb 1985, 2686 (13 November).
74 Qld Parl Deb 1985, vol 300, 1503. The Queensland Premier then went on to say thats 2(1) of the Australia Acts “corresponds” withs 3 of the Statute of Westminster. However, this paper argues that the latter has a far more sweeping effect than the former.
75 In the sense explained by Windeyer JinR v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256, 306-307.
76 Bistricic v Rokov (1976) 135 CLR 552;China Ocean Shipping Co Ltd v South Australia (l979) 145 CLR 172; and Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246.
77 Eg, Statute of Westminster 1931 (UK) s 9(2).
78 Ukley v Ukley[1977] VR 121.
79 Riel v R (1885) LR IO App Cas 675.
81 Pearce v Florenca (1976) 135 CLR 507, 515perGibbs J;Robinson v Western AustralianMuseum (1977) 138 CLR 283, 294 per Barwick CJ.
82 (1932) 48 CLR 618.
83 (1969) 120 CLR 503.
84 (1972) 126 CLR 105.
85 [1956] AC 331.
86 Supra n42, and accompanying text.
87 See the preamble to the Australia Acts; House of Commons Debates 1986, 6th series, vol 91, 83; and Qld Parl Deb 1985, vol 300, 1500. See also the Acts Interpretation Act 1901 (Cth), as amended s 15AA which requires a purposive approach to the interpretation of Commonwealth statutes.
88 See ss 4 and 9(2) of the Statute of Westminster. Incidentally, these sections of the Statute, along with ss 9(3) and 10(2), have been repealed by s 12 of the Australia Acts.
89 Compare s 2(1) of the Australia Acts with s 3 of the Statute of Westminster.
90 Compare s 3(1) of the Australia Acts with s 2(1) of the Statute of Westminster.
91 Compare s 3(2) of the Australia Acts with s 2(2) of the Statute of Westminster.
92 Sections 3(1), 4, 11(3) and 12 of the Australia Acts.
93 Eg, Constitution Act 1867-1986 (Qld) s 2.
94 This certainly seems to have been the legislative intention: see Sen Deb 1985, 2552 (29 November); H Reps Deb 1985, 2686 (13 November); and Qld Par! Deb 1985, vol 300, 1503.
95 See the discussions of this aspect of the CLVA in AG (NSW) v Trethowan (1931) 44 CLR 394 (High Court), [1932) AC 526 (Privy Council).
96 Section 4 repeals certain sections of the Merchant Shipping Act 1894 (UK); s 11(3) repeals various Imperial statutes concerning appeals to the Privy Council from Australian courts; whiles 12 repeals several provisions of the Statute of Westminster.
97 supra n34, accompanying text.
98 DC Pearce, supra n4, 52-54.
99 Sen Deb 1985, 2552 (29 November); H Reps Deb 1985, 2685 (13 November).
100 Which would have been slight anyway. It appears that the States' “peace, order and good government” powers in their own Constitution Acts contain enough constituent elements to meet most State constitutional needs: see Clayton v Heffron (1960) 105 CLR 214.
101 See s 5(a) of the Australia Acts. State legislative powers conferred by ss 2 and 3(2) of the Acts are also subject to the rest of the Australia Acts and the unrepealed provisions of the Statute of Westminster: s 5(b) of the Australia Acts.
102 Ibid, and accompanying text.
103 I give this unlikely example in a perhaps slightly humorous vein, because during 1986 the merits or otherwise of the Victorian scheme were vigorously discussed in Queensland, during a sometimes fierce debate on the latter State's drink-driving laws.
104 R v Foster; ex parte Eastern and Australian Steamship Co Ltd (1959) l03 CLR 256, 306, 307 per Windeyer J.
105 Supra n82, and accompanying text.
106 Supra n84, and accompanying text.
107 Supra n85, and accompanying text.
108 Sections 5 and 15 of the Australia Acts.
109 Section l06: “The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.”
110 Supra n1.
111 Supra nn26, 27 and accompanying text.
112 The meaning of “Constitution of the State” in s I06 has been discussed in CD Gilbert, “Federal Constitutional Guarantees of the States: Section 106 and Appeals to the Privy Council from State Supreme Courts” (1978) 9 FL Rev 348, 350-357. See alsoWestern Australia v Wilsmore (1981)
113 There appear to be no judicial utterances supporting any suggestion that legislative power to remove the extraterritorial fetter resided in the State Constitution Acts apart from the constituent power ins 5 of the CLVA. Indeed, Gibbs JinPearce v Florenca (1976) 135 CLR 507,515, seems to have thought that such a State power could come only from s 5 of the CLVA.
114 This argument may be negated by s 107 of the Commonwealth Constitution. This section guarantees residual State powers as of I January 190 I. The Australia Acts may have prospectively abolished the CLYA so far as the States are concerned. However, any additional extraterritorial powers that the States might have acquired from the CLVA may well survive, because of s 107. Section 106 is subject,inter alia, to s 107, and s 5(a) of the Australia Acts ensures that the guarantees of, inter alia, s 107 of the Commonwealth Constitution take precedence over s 2 of the Australia Acts. Both arguments ultimately depend on whether Trindade and Gibbs J are right in their views on s 5 of the CLVA and the extraterritoriality doctrine.
115 Section 107: “Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.”
116 The Tenth Amendment: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
117 (1986) 7 NSWLR 372.
118 Ibid 397 and 408 respectively.
119 Ibid 415.
120 Ibid 397.
121 Ibid.
122 Supra nn 61-63.
123 The Coastal Waters (State Powers) Act 1980 (Cth) which, in general terms, gave the States full powers to pass laws operating off-shore in adjacent fringing territorial waters; and the Coastal Waters (State Title) Act 1980 (Cth) which conferred certain proprietary rights and title upon the States in respect of their adjacent fringing sea-beds.
124 One Commonwealth and six State statutes identically named and dovetailed so as to implement a joint regime over Australia's off-shore petroleum resources.
125 (1932) 48 CLR 618 and supra text at n82.
126 (1972) 126 CLR 105 and supra text at n84.
127 [1956] AC 331 and supra text at n85.
128 It is instructive to note that, even after the “patriation” of the Canadian constitution by the Canada Act 1982 (UK) an extraterritorial fetter still applies to Canadian provincial legislatures: see PW Hogg supra n42, 267-282. Section 3 of the Statute of Westminster was never extended to the Canadian provinces. It should be remarked that the Canada Act contains no equivalent of the Australia Acts s 2.