FISHERIES AND THE AUSTRALIAN CONSTITUTION
A J Harrison
Introduction
The separation of powers over Australian marine fisheries created by placitum 51 (x) of the Constitution has posed legal and administrative difficulties and confusion in the fishing industry since the proclamation of the Commonwealth Fisheries Act in 1955. For the next three decades many commercial fisheries were divided at the outer edge of the territorial sea, "the three mile limit", into an inner coastal zone managed by the States and the adjacent offshore zone of "proclaimed waters" under Commonwealth Government jurisdiction. In the first half of this period the problems were generally minor as, in the main, Federal Governments were content to apply State fisheries management strategies in the adjacent waters. This policy was agreed upon at a series of Commonwealth State Conferences between 1947 and 1952. After the election of John Gorton as Prime Minister succeeding Commonwealth administrations have sought to apply more independent fisheries management strategies in proclaimed waters and challenged the rights of the States to manage coastal fisheries. Consequently it became increasing difficult to apply coherent management plans in fisheries which straddled the three mile limit as Commonwealth/State tension grew during the second half of the period. Although these difficulties had their foundation in the Constitution and the post Gorton trend to expand Commonwealth powers their magnitude was a product of the contemporaneous trend to apply greater government control over the capture of fish.
Modern practitioners of fisheries management have tended to lay many of their problems which stem from "lines on the water" at the feet of our founding fathers either on the grounds of lack of foresight in the development of Australian fisheries or inadequate drafting of section (x) in Placitum 51 of the Australian Constitution. It is the purpose of this paper to refute those claims and to examine some intriguing questions which arise from a closer examination of the development of the phrase "Fisheries in Australian Waters beyond territorial limits." Those questions include. What powers, if any, could the new Commonwealth look forward to exercising over extraterritorial fisheries? With the model of the Section 91 of the British North America Act, which left the provinces of Canada without powers over fishing, before them why did the delegates to the Constitutional Convention recommend a course in the opposite direction? Why, when Britain generally maintained that waters beyond the three mile limit were the open highway of the sea did it, without demur, give Australia powers it declined to otherwise acknowledge?
Background
The story begins in the tropical fisheries of northern Australia almost thirty years before the Constitution was proclaimed where aboriginal, Polynesian and Asian divers were employed on vessels to collect pearl oysters and the sea slug, known as trepang or beche-de mer. The masters of these vessels were in the words of Sir Samuel Griffith "adventurers...(and) not always the most law abiding class of man". Both Western Australia and Queensland had experienced trouble in maintaining order in the fishery and the later had deployed a vessel "to settle on the spot disputes which arise between crews of these vessels and their masters". Each colony had enacted legislation to impose peace and order in the fishery, requiring vessels and masters to be licensed, establishing some employment conditions for crews and to recover the cost of supervising the industry. Although the licensing system provided a framework that could have been used to regulate the rate of harvesting and so conserve the stocks their is little evidence to suggest that this was done, at least before 1900. Whilst the colonial fishery acts were effective in bringing some order to the fishery within three miles of the coast they were concerned that their administration "should not be evaded by a vessel merely passing over a limited stretch of water exempt form our jurisdiction" Although the disorder in the fishery was a major problem to the two colonial administrations it was overshadowed, at least in Queensland, by two other matters. The first was the development of what the scholarly Henry Wrixson called "an incipient slave trade", and the second was the desire to occupy a sphere of influence beyond the territorial sea and at least over the region which included the Great Barrier Reef and Torres Strait. The adventures of some European powers in the Pacific in the latter years of the nineteenth century caused great concern and had led to an attempt by Queensland to annex New Guinea and plans by Victoria to occupy a Pacific island.
In this climate an Intercolonial Conference was held in Sydney in 1883. The Conference was called to address matters external to the colonies including the annexation of New Guinea, by Germany and the extension of influence by foreign powers in the Pacific and the "threatened danger of being deluged by a flood of irreclaimable criminals of other nationalities". The result of the meeting was the creation of Federal Council of Australasia. The idea of such a Council had been suggested by Henry Parkes in 1880 but it was brought into being by Samuel Griffith, Premier of Queensland and his Victorian counterpart James Service.
On the opening day Griffith submitted to the meeting
"That it is desirable that a Federal Australasian Council should be created for the purpose of dealing with the following matters:
1). Marine defence of Australasia beyond territorial limits
2). Matters affecting the relations of Australasia with the islands of the Pacific
3). The prevention of the influx of criminals
4). The regulation of quarantine
5). Such other matters of general Australasian interest as may be referred to it by Her Majesty or by any of the Australasian legislatives."
On the 3rd December 1883 the Conference appointed a committee with Attorney-General of New South Wales, W.M. Dalley as Chairman to draft a Bill to establish a Federal Council of Australasia. The final Bill drafted by Griffith and agreed to by all, expanded the five powers originally suggested for the Council to seven, one of the additions being -
"Fisheries in Australasian waters outside territorial limits of a colony".
Why was the fisheries clause added? Who raised it? Nauze suggests that this clause was one which arose from "the peculiar atmosphere in which the conference of 1883 met". Presumably referring to Griffith's desire to control the use of native labour in the pearl and beche-de-mer fisheries?
The Federal Council of Australasia
Between July and August 1884, the Federal Council Bill was passed by the Parliaments of Victoria, Tasmania, Queensland, Western Australia and Fiji and sent to London with petitions requesting enactment as an imperial statute. The British governments had been encouraging federation since 1847and generally welcomed the move so on April 23, 1885, the Earl of Derby introduced the Federal Council of Australasia Bill in the House of Lords. The Bill passed with little debate although there was some criticism in the House of Commons nevertheless it became law with little trouble. The Act was not identical with the text adopted by the Convention but the idea was unaltered. The Council was a legislative body only, the laws passed by the Council were to be presented, to the Governor of the colony in which the Council was sitting and reserved for Royal assent. It had no executive authority and no revenue. The Federal Council of Australasia Act was proclaimed on 14 August 1885 and between September and December, Western Australia, Fiji, Queensland, Tasmania and Victoria passed adopting Acts. New Zealand, New South Wales and South Australia did not. Although the latter joined the Council in 1888 the failure of New South Wales to join was to be a continuing problem and ultimately forestalled the ambitions of some colonies that the Council should evolve into a full federal parliament; nevertheless this did not affect fisheries.
Hobart hosted the first meeting in January 1886 and James Service was elected President. In his speech in the debate on the Address-in-Reply at the first session of the Council Griffith said
"The next question mentioned in the clause is the fisheries in Australasian waters beyond territorial limits. That does not perhaps at present affect all the colonies, but it affects two very important ones - Western Australia and Queensland. At present legislation on the subject can only be enforced while the ships are in port, or are engaged in their operations within three miles of the shore, but while at sea, where they are practically while engaged in fishing, the law is inoperative. We in those colonies know what we want, and the Federal Council has now the power to legislate on the subject without appealing to the convenience or leisure of the Imperial Parliament to pass our suggestions into law."
Griffith presented, pro forma, a Bill to regulate Pearl Shell and Beche-de-mer fisheries in extra territorial waters off Queensland, including Torres Strait: it was the first Bill presented to the Council. When the Council met for the second time in January 1888 with Griffith as President, the second Queensland delegate J R Dickson introduced the Bill. Dickson stressed the interest taken by both the present Queensland Government and Opposition in fisheries and sought legislation to extend the laws then operating over these fisheries within three miles to a large area which included all the waters inside the Barrier Reef, Torres Strait and the eastern half of the Gulf of Carpentaria. Dickson proposed a Bill which
"is a transcript of the Queensland Acts - the original Pearl Shell, and Beche-de-mer Fishing Act of 1881, the Act to amend the Pearl Shell and Beche-de-mer Fishing Act of 1886, and the Native Labourers Protection Act, dealing with the employment of the aboriginal natives of the Torres Straits, passed in November 1884. These three Acts are incorporated in the one now to be presented to the Federal Council, and I can assure the Council that there is no new matter whatever introduced beyond the extension of the territorial limits over the intervening waters, which is the subject of our present legislation."
The Western Australian member, James Lee-Steere, originally indicated an intention to have the Queensland Bill apply to the waters off Western Australia as well, but, on advice from Perth, found that the Bill was too different from the legislation then operating in that colony to make it applicable off the west coast. There was some consideration of a general act to apply throughout the extra territorial tropical waters but the primary desire of Queensland and Western Australia was to extend their control. Vessels operating in extra-territorial waters would have to hold licences issued by the colonies as they would if fishing in territorial waters. The colonies' concerns for conserving the stocks of sedentary species was muted but the desire to licence fishing boats and to regulate the employment of aboriginals and Polynesians in the fishery, whose status approached slavery, was heartfelt.
"I regard the efforts of the present government of Queensland (to control the labour traffic) with the greatest admiration. I think their efforts to put down what is an incipient slave trade are admirable"
Inglis Clark of Tasmania and Wrixon of Victoria had some reservations. The former had no reservation about extending Queensland authority "outside the artificial three-mile limit" but was not in favour of allowing "the courts of Queensland to deal with citizens of other colonies outside these limits". Wrixon was concerned at the rush to legislate and the extent of the area to be included - he raised the doubt over extra-territorial competence for the first time and it was to linger in the minds of delegates to the Council, and the later Federal Conventions, at least until 1900. His specific worry was that - the proposed Act might not receive Royal assent as the powers it sought would exceed the powers the Queen herself enjoyed. He cautioned that they were really attempting to do what the Imperial Legislature had never yet done - to make general legislation take effect outside of the three mile limit. Of course, power had been given to them, but in exercising that power in the manner proposed, they were, and he believed the President would agree with him, doing what the Imperial Legislature had never yet done. The divergent views reflect differences amongst members as to the prime purpose of the Council - whether it should act to foster uniformity of administration and ultimately federation, or simply facilitate the administration of the separate governments that constituted the Council. In speaking to the Queensland Bill Lee Steere made it clear that his objective was to extend colonial powers to extra-territorial waters. Inglis Clark preferred a single act to cover pearl fishing in extra-territorial waters generally in northern Australia. Griffith justified separate legislation "as the circumstances of the colonies are quite different"..."fisheries are a local matter"
The discovery of trawling grounds more than three miles off the coast of New South Wales did not begin until 1898 and the their true extent was not revealed until the Endeavour surveys just before World War I. Therefore at the time during which the Constitution was under development fishing was either inshore or predominantly a continuous extension of inshore fisheries, or offshore but for sedentary species. Today it is easy to underestimate the importance of the dive fisheries off northern Australia at the turn of the century. Pearling had begun near Cossack WA around 1861 with aboriginal divers. When aborigines were prohibited from diving their place was taken by Javanese and Timorese and 80 vessels were engaged by 1873. The introduction of compressed air diving in 1874 allowed beds in Torres Strait to be fished and by 1883 206 vessels employing 1500 people were working from Thursday Island. The Japanese began to dominate the fishery around 1885. The fishery employed around 3,000 people and over 400 boats, in 1918 and generated £38,000 worth of catches which was greater than the total national catch of lobsters. In addition the use of Asians and Polynesians as crew severely compromised the White Australia policy. Thus it was not unreasonable for the members of the Federal Council to think of fisheries as "a local matter" closely tied to activities on shore.
Braddon urged the Council to grasp the power it had been given and Griffith reassured Clark that the area covered was largely within the Barrier Reef and that the words "Australasian waters beyond territorial limits" should include such waters as they would those of Bass Strait. Griffith also reminded the Council that the fisheries were conducted in shallow waters - "if it were a deep sea fishery it would be different. and he would be,he thought, very loth to propose any legislation on the subject" Here Griffith draws the distinction between the relationship of a coastal state and sedentary fisheries compared to "deep sea fisheries", a term then commonly applied to demersal fisheries such as trawling and pelagic fisheries exploited by drift nets. "Beche-de-mer was found actually on Queensland territory" At the prompting of Wrixson Griffith agreed to amend the definitions to limit the Act to the sedentary species of pearl oysters, or beche-de-mer "and any other fish or shell of a like kind" proclaimed by the Governor of Queensland. The original Queensland acts allowed the provisions of the legislation to be extended to any fish or shell, including non sedentary species, so proclaimed. The concept of special status for these species was later to be incorporated into the International Convention on the Continental Shelf which codified the fisheries to be covered through the definition of "sedentary species". However the Imperial parliament in enacting the "Federal Council Act" seemed to impose no limitations on the type of fisheries that were included within the phrase "Fisheries in Australasian waters outside territorial limits of a colony". Certainly the phrase when carried into the Australian Constitution eight years later has not been so interpreted.
On the motion of Griffith, the Council added a clause to limit the Act to British ships and boats, the amendment was not debated but a related point had been raised earlier by Clark. On page 61 of the Proceedings he drew attention to the interpretation of "Australian waters adjacent to Queensland" stating he was still unsatisfied "as to the position of vessels belonging to colonies outside the confederation". Griffith responded with the view that "it made no difference where a ship was registered.... It was a shore fishery not a deep sea fishery". This time using the phrase to emphasise the local nature of the fishery - its nexus with the territory of Queensland. The Council appears to have accepted that point and adopted the clause. It must be assumed that the decision to included the clause confining the Act to British ships was to restate the current position in international law.
When the Council gathered for the third session in January 1889 Queen Victoria had considered and given assent to the Queensland Act. The Victorian members were now the Premier, Duncan Gillies, and the Chief Secretary, Alfred Deakin, and South Australians were present for the first time represented by the Premier and Attorney-General, Thomas Playford, and Charles Cameron. Kingston. The Attorney-General of Tasmania Andrew Inglis Clark was one of that colony's two members. The Council now contained a significant group leading political-legal authorities - Griffith, Clark, Deakin and Kingston. Sir James Lee-Steere quickly introduced the Western Australian Bill to apply similar laws to those agreed to by the previous session off Queensland. In the intersessional period, a petition had been lodged with the Secretary of State for the Colonies seeking to prevent Western Australia from extending its jurisdiction over fishing beyond three miles. The Secretary of State advised the Governor of Western Australia that the petition had been referred to the Crown Law Officers who advised that as the Queensland Act had now received Royal assent, it was appropriate to seek similar legislation for Western Australia. Thus the reservations of Wrixon and Clark appeared not to be shared by the Imperial government.
The principle objectives of the Western Australian Act was to supervise the fishing crews and to recover, via licence fees, the costs incurred in supporting the pearl fishery and supervising relations between boat owners and their crews. Western Australia proposed not to re-enact its own Acts verbatim in the Bill but rather to seek to apply those Acts extra-territorially by reference. Clause 15 read
All the provisions of the Pearl Shell Fishery Acts not specially referred to by this Act, and which can be rendered applicable to the Fishery in extra-territorial waters, are hereby rendered applicable thereto.
The Queensland Act may well have been the first Australian example of 'mirror legislation' but Western Australia proposed to directly extend its policies and administration. Griffith sympathised with the desire of the Western Australians to "keep a firm hand on the fisheries in its waters" but was concerned about the structure of the Bill."this Act cannot be in operation where the local law is in operation. You cannot have both laws in operation in the same place." The Bill was reworked by a Select Committee consisting of Lee-Steere, Clark, Deakin, Kingston and Griffith to address the legal and structural deficiencies. Griffith and Clark were not able to convince Lee-Steere , and the other members of the Council, to accept all the changes they proposed. The majority were happy that the Bill simply gave Western Australia " the privileges we have given Queensland" The minority were of the opinion that the Council were proposing to give Western Australia powers the Council did not possess. The Bill would extend certain colonial acts beyond the three mile limit and to apply them in those extra-territorial waters including future amendments that might be made by the Western Australian Parliament.
As with the Queensland Act the Bill proposed to cover British ships only and Gavan Duffy (Victoria) questioned whether or not the application of licences and the payment of charges would not place theses vessels at a disadvantage compared to the ships of other nations. Gavan Duffy had told Lee-Steere that he had been lobbied on this matter but the Western Australian urged the Council not to be influenced by such private pleadings. Griffith strongly supported that comment they "were the same class of people in Queensland waters. I have no sympathy with them. Whenever people are engaged in money-getting out of the reach of civilisation abuses arise," As there were only British ships engaged in the fishery the Bill was agreed to.
The bill was referred to London and received royal assent and was proclaimed on 31 Jan 1890 but not before pearling interests in London, led by the Streeter group, had sought to defeat it. At the fifth Council session in Jan 1893 Nicholas Brown (Tasmania) tabled a petition which had been sent to Clark protesting at the passage of the Western Australian Act. The petition sought the repeal of both the Queensland and Western "in so far as they differ from ancient custom and differentiate against the British flag." The petitioners referred to acts as claim "semi-proprietorship of certain open seas" and not only disadvantaged British subjects and restricted British imperial influence generally.
the claims over the high sea to the west of Torres Strait and the so called extraterritorial waters of Western Australia will add to the difficulty of arriving at the equitable international arrangement now becoming so necessary.
The Council virtually ignored the petition largely on the grounds that it was two years since it had been written and the Council's view that as the legislation had not affected Australians engaged in the fishery nor put them at a disadvantage. The petition itself revealed that an attempt had been made in the House of Commons during the debate on the Western Australian Constitution Act to amend the fishery legislation. The petitioners represented the London Chamber of Commerce, the General Shipowners Society and the North-Western Pearling Fleet and appeared to rely on advise from Joseph Chamberlain MP who had led the British negotiations with the United States over the Newfoundland fishery and was signed by him and three other parliamentarians. The petition claimed that Chamberlain had called the Western Australian act "illegal" during the debate on the Western Australian Constitution Bill. Although the petition contests the exercise of "semi-proprietorship" over part of the Arafura Sea the Queensland Act was not strongly attacked, it was the Western Australian Act with its claim over large areas of the high seas (see figure) and the suggestion that by its enactment the Federal Council had "divested its powers of extra-territorial legislation to Western Australia" that was contested.
The Australian Federal Convention.
The Federal Council proved to be an inadequate foundation on which to build a federated nation after four sessions of the Council NSW had not participated and South Australia had dropped out. Yet the desire for federation remained. At the instigation of Henry Parkes delegates of the six colonies and New Zealand met in Melbourne in February 1890 and agreed to send delegates elected by the parliaments to a federal convention, the first session of the Convention was held Sydney in March of the following year. Henry Parkes was the leader of the Convention but Griffith, again the Premier of Queensland, lead the discussions and was largely responsible for drafting the Constitution Bill which resulted. Prior to the meeting Clark circulated a draft Bill which included amongst the powers to be exercised by the Commonwealth Parliament
"(xxv) To regulate fisheries in Australasian waters".
The Convention appointed three Committees to prepare instructions to the drafting committee consisting of Griffith, Clark and Kingston. The Constitutional Committee recommended that amongst the powers to be transferred to the central government should be
"12. Sea Fisheries"
Griffith began the preparation of the Bill from Clark's draft and when his two colleagues joined in the task two days later they rewrote the fisheries power to conform to wording of the Federal Council Act.
"(xii) Fisheries in Australian waters beyond territorial limits"
The wording is consistent with Clark's except for the prediction that New Zealand would not be part of the federation at least at this stage. All three members of the drafting committee had been active in the fisheries debates in the Federal Council and were on record for their support for the concept of fisheries as a local matter. In contrast the Canadian Constitution had given the central government powers over the "sea coast and inland fisheries." Their preference for the United States rather than Canadian Constitution as a model for Australia was consistent with this view and they knew that the Imperial Parliament had now endorsed such a power three times. When the draftsmen presented their Bill to the Convention the fisheries clause was accepted without debate.
The depression of the early 1890's and the continued reluctance in New South Wales delayed progress and Griffith left politics to become Chief Justice of Queensland in March 1893; his departure, and that of Parkes, left the leadership of the federal movement largely in the hands of Edmund Barton of NSW and Alfred Deakin of Victoria . The Bill was considered by parliaments in Victoria, Tasmania and South Australia, New South Wales again stalled at federation and as a consequence the other colonies did nothing. After a meeting of the Premiers and a groundswell of popular support the second session of the Federal Convention was held in Adelaide in March-April 1897 with popularly elected delegates from all the colonies except Western Australia (where parliament elected the team) and Queensland. In the interregnum the 1891 Bill had been widely discussed and considered by the Colonial Parliaments. The Adelaide session considered sub section (xii) of Griffith's draft and an amendment from South Australia to add the words.
" and in rivers which flow through or in two or more States".
New South Wales delegates opposed the amendment and lent towards deleting the whole sub section, seeing the amendment as an attempt by South Australia to intervene in New South Wales affairs. Whilst there was some genuine concern, expressed by J H Gordon (SA) and Kingston, for fisheries in the Murray-Darling system he and R E O'Connor(NSW) were instrumental in gaining acceptance of the original clause. The same amendment was put at the third session in Sydney six months laterwhere with almost no debate it was again defeated 19 votes to 13. After that vote Kingston drew the Drafting Committee's attention to the possibility of using "Australasian" in place of "Australian" and whether the 'Australian waters" should be defined. Barton signalled his concern with an acknowledgement to Kingston that
This is a matter of great difficulty and it may well have to be provided for by a definition...The existing provision seems to me a possible source of confusion.
The fourth session of the Convention held in Melbourne early in 1898 addressed the proposed clause on fisheries which was still unaltered from the Commonwealth Constitution Bill of 1891. In Melbourne Edmund Barton proposed an amendment to reword the clause as - Sea fisheries in Australian waters. .
This wording was closer to that used by the the Constitutional Committee in 1891 and would have reduced State powers over fisheries without addressing the difficulty of defining Australian waters highlighted by Barton during the previous session.
Barton's view was that under international law there was little scope for control extra-territorially and that could be exercised through laws relating to navigation and commerce. Although he appeared to be unaware of them, an examination of the Fishery Acts passed by the Federal Council confirms his view as apart from licensing fishing boats they neither directly conserved fish stocks nor managed the fishery. (The powers of the British Merchant Shipping Act 1894 could have dealt with most of the matters legislated for in the two Council Acts.) He repeated the view, expressed by Clark and Wrixson in 1888, that there may be doubt as to whether London had the power over extra-territorial fisheries they had purported to transfer to Australia and foresaw the difficulty of managing fisheries if they were artificially divided by the three mile limit. He was aware that fishermen in NSW were already trawling beyond three miles an was concerned for
"the unlucky fisherman who does not always know whether he is two and a half or three miles away will get into the pickle instead of his fish.... It will be very hard on them that there are two sets of laws"
Sir John Forrest (WA) immediately saw the potential for the States to lose control of fisheries "on the coast" and vigorously urged the retention of the words "beyond territorial limits....they are very good words". H B Higgins (Vic) and Kingston also pressed for retention of the wording of the Federal Council Act. Kingston rejected Barton's suggestion by reference to Griffith "(he) whom there is no greater federal apostle, always attached very considerable importance to this particular clause." He called the fisheries legislation the chief legislation of the Federal Council and the grant of the extra-territorial power by the Imperial Government as a notable concession to Australia, but, when discussing the nature of international law on fisheries beyond the three mile limit the debate would have been immeasurably improved if Griffith had been a participant. Barton continued his case for Commonwealth power over all sea fisheries by repeating his concern over the vagueness of the term "Australian waters" and Kingston again suggested that a definition of the term be included in the Bill.
Deakin urged Barton not to seek to reduce powers given to Australia. "Personally I will seek to keep in this Constitution not only every power, but every promise or shadow of a power we can obtain for the federal parliament.", but reassured Forrest that "the control of fisheries within territorial limits would remain with them (the States) for all time." Dr J A Cockburn (SA) probably expressed the view of the majority when he said "I do not think we should inquire too closely into her( the Queen) title."; but clearly there was an overwhelming majority for the view that Australia should continue to exercise extra-territorial jurisdiction now that it been successfully practiced in the pearl and beche-de-mer fisheries. Forrest asked Barton not to be obstinate; he had heard no no reason to adopt Barton's amendment.
Only New South Wales pressed for a revision of the original clause perhaps because of the recent experiments in trawling taking place off Sydney and the obvious practical difficulties that would apply in that fishery if there was to be a separation of laws at the three mile limit, but more likely due to its isolation from the fishery debates in the Federal Council. When debate resumed the next day it was apparent that some further thought had been given to the fisheries question and the work of the Federal Council. Barton's colleague O'Connor brought the New South Wales delegation to the majority side agreeing to maintain the status quo. "interests have grown up, spheres of influence have been actually used and the laws of the colonies have been brought to bear....I do not think we should abandon one jot of what we have acquired already.....Although I think that the criticism of Mr Barton is perfectly justified, being brought face to face with the practical conditions of things, I think we ought to leave sub section (12) as it stands." Forrest and Symon (SA) congratulated O'Connor. The Western Australian Premier was glad O'Connor he had abandoned the narrow - the legalistic view and embraced the broader and more imperialistic one. Symon reminded the meeting that the effect of the sub section would always be limited by international law and so the Griffith concept prepared in 1883 was carried forward into the draft Constitution and finally assented to by Queen Victoria in 1900.
Why did the Imperial Parliament agree to include in the Federal Council Act extra-territorial powers over fishing?
The debates in Australia give no clue as to why the Imperial Parliament agreed to include in the Federal Council Act extra-territorial powers over fishing when Britain did not attempt to exert such power. The British fishing industry was at the start of a major expansion, particularly in trawling, which would see conflict with the fleets of other countries. Two explanations seem possible. Firstly, responsibility for sea fisheries within three miles of the coast of England and Wales had been recently decentralised by the Counties Government Act leaving Whitehall responsible for extra-territorial fishing only. Therefore it was logical to apply a similar model giving to the Australian States the same powers enjoyed by the English Sea Fisheries Committees, but no mention was made of this in rebuttal of Barton's proposals. Secondly it was not necessary for the Imperial Parliament to state, or even know, what powers existed over fisheries beyond territorial waters, except perhaps to assume that some power could be wielded or would be available in the future. When the power was originally sought, in 1883, it was known to be in relation to what are now referred to as sedentary species fisheries, perhaps it was jurisdiction over just these fisheries that Westminster had in mind when passing the Federal Council Act. In support of this is the fact that the Federal Council quickly used the power for these fisheries and the Act's draftsman, Griffith, clearly saw a difference between the power to regulate these fisheries and absence of such power over "deep sea fisheries". It is interesting that few other members of the Federal Council drew any distinction between fisheries for sedentary species and fisheries generally and there was no suggestion of such a limitation in the Convention debates. Quick and Garran(1901) make no reference to a limitation to sedentary species but the Hansard record reveals much confusion over the nature of the extra-territorial powers. The confusion was not confined to Australia for when the Colonial Office received the draft of the Adelaide Bill in 1897 the fisheries power was contested and although the belated discovery of the same power in the Federal Council Act quietened that attack, Alfred Deakin understood that Colonial Secretary Joseph Chamberlain intended to seek and amendment to the sub section when the delegates arrived in London with the Constitution Bill in 1900. Joseph Chamberlain,"proud self reliant, aggressive and dominating...from first to last himself the British Government so far as the delegates were concerned" had attacked the Western Australian Pearl Fisheries Act and in 1891 signed the petition seeking its withdrawal. La Nauze refers to concerns expressed by Sir Courtney Ilbert, Parliamentary Counsel to the Treasury, on the extra-territorial application of the fishery power. Ilbert apparently believed that it would be necessary to declare such laws to be "colonial laws" within the meaning of the Colonial Laws Act to avoid clashing with British shipping acts. The Law offices of the Crown were less concerned about extra-territorial authority but felt the application of such laws to British ships "did raise difficulties". Chamberlain pressed for amendments to the Bill that would delete power to apply Commonwealth laws to British ships and apply the Colonial Laws Validity Act (which assured ultimate Imperial supremacy) to the Bill.In fact, faced with the determined and united stance of the delegates, Chamberlain did not press for the amendments.
The fisheries clause seems to be very much a creation of Samuel Griffith his eminence as lawyer and draftsman may well allowed him to exploit the need and opportunity to manage two sedentary species fisheries and to build that into a general power to create laws to manage fisheries extra-territorially at a time when international law prevented coastal state regulation of fisheries for swimming fish on the high seas. Having successfully applied that power off Queensland Clark, Deakin and Kingston ensured that it stayed in drafts of the Constitution. At this point the suggestion that the drafting of the fisheries clause was in any way deficient should be put to rest. In addition to Griffith only Clark and Kingston participated in the drafting - the former has a just claim to the title of creator of the Constitution and Kingston "had command of a crisp precision of phrase and sure sense of value of words that could express a meaning in the shortest and most unmistakable terms" It is difficult to imagine any clause in an Australian Act with more distinguished authors.With an apparently effective law covering fisheries generally on the high seas some delegates to the Convention may not have understood how Griffith had obtained the power from the British Parliament but saw no reason to voluntarily relinquish it. The great attraction of the clause was that it had allowed Australia to exert a sphere of influence in the Pacific from Cape Leeuwin in the west across the north to Sandy Cape in the east and for a considerable distance offshore. The answer to the question why did the Imperial Parliament so readily endorse the extra-territorial fisheries power in 1885 may be found there; it was in Britain's interest that the Australian colonies exercise some Imperial influence in the south Pacific as soon as possible.
The success of the laws to manage extra-territorial fisheries via the provisions of the Federal Council Act ensured that they continued after Federation. There was no demand for the Commonwealth Parliament to immediately exercise its fisheries powers. In 1929 a Royal Commission reported on the Constitution, its deliberations on fisheries were heavily influenced by the optimistic writings of the former General Manager of the NSW State Trawling industry David Stead. By this time a major trawl fishery operated up to 20 miles off NSW and the "Endeavour" had discovered deep sea fish resources in the Great Australian Bight. The scope for fisheries development which Stead saw as moving "world's 'centre of gravity' in commercial fisheries to Australia" prompted two members of the Commission to recommend that the Constitution should give the Commonwealth full power over fisheries in order that it could foster this capacity for "great development". Despite the recommendation of two major national conferences (in 1927 and 1929) that also urged the Commonwealth to take a greater role in fisheries the minority report was ignored. In administering an area of government interest as diverse as fisheries in a federal system demarcation problems must occur. The Canadian solution, which resulted in responsibility for live fish going to Ottawa and dead fish to the provinces, may, to judge from a recent publication, have created just as many problems, but of a different kind.
The problems foreseen by Barton did not become a practical problem for more than 60 years and were solved, not by Barton's proposal despite support for it from John Gorton and Gough Whitlam, but through a negotiated agreement to share responsibility for sea fisheries on a fishery by fishery basis - the Offshore Constitutional Settlement. The OCS fisheries package would have found favour with Griffith, Forrest and Deakin as it left the States with jurisdiction over what they would recognise as local fisheries matters and probably satisfy Barton in that fisheries of national importance became the responsibility of the federal government.