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Editors --- "Jones v State of Queensland & Anor - Case Summary" [1998] AUIndigLawRpr 1; (1998) 3(1) Australian Indigenous Law Reporter 19

Jones v State of Queensland & Anor

Supreme Court of Queensland (Ambrose J)

31 October 1997

Sovereignty -- Native Title -- Jurisdiction -- Offshore Waters and Sea Beds -- Effect of Coastal Waters Acts

Mr Jones commenced common law native title proceedings in the Queensland Supreme Court as a representative action seeking, inter alia, a declaration of native title over an area from Fitzroy Reef (off the coast of Gladstone) south to Noosa Heads, some hundreds of miles west of the coast, and 40 nautical miles east of the coast.

The Commonwealth joined as a party, and applied to have the writ set aside, arguing:

1. Queensland's sovereignty extends only to the low water mark. Applying the principle in British South Africa Co v Companhia de Mocambique [1893] AC 602, territory beyond the frontier was not within jurisdiction.

2. Although the offshore constitutional settlement,Coastal Waters (State Title) Act 1980 (Cth) and Coastal Waters (State Powers) Act 1980 (Cth), conferred ownership of the coastal waters and sea bed up to three nautical miles, the area did not become part of Queensland and consequently the State did not acquire jurisdiction.

Queensland argued that Coastal Waters Acts had the effect of vesting proprietary rights and jurisdiction in the State of Queensland for waters and sea beds up to three nautical miles from the coast.

Held:

Queensland Supreme Court had jurisdiction to hear the plaintiff's claim up to the three nautical mile limit. Applying principles of statutory interpretation, Ambrose J held the purpose of the constitutional settlement and the effect of the Supreme Court Act 1991 (Qld) and Supreme Court Act 1995 (Qld) conferred jurisdiction. Applying the Mocambique principle, territory beyond the three mile limit was outside the court's jurisdiction. Mr Jones' writ was set aside and the statement of claim was struck out. Leave was granted to amend both with regard to jurisdiction.

Ambrose J:

These are applications made by the State of Queensland and the Commonwealth of Australia pursuant to
RSC 0. 22 r. 2 to set aside service of and/or strike out part of the plaintiff's proceedings against them on the ground that this Court has no jurisdiction to grant the relief sought.

The plaintiff purports to bring a representative action on behalf of various unidentified people described as "trustees" claiming declarations that they hold "common law native title to the lands and seas and seabeds and the resources thereof" in respect of specified areas of land, seas and seabeds. The claim seems to be based upon Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 applied in The Wik Peoples v Queensland (1996) 71 ALJR 173 [(1997) 2(1) AILR 35].

No objection is presently raised as to the locus standi of the plaintiff (cf. Onus v Alcoa [1981] HCA 50; (1981) 149 CLR 27) or as to the standing of his action as a properly constituted representative one (cf. RSC. O. 3 rr. 9 and 10, O. 6 r. 6) having regard to the facts pleaded in his statement of claim. The only objections taken relate to the jurisdiction of this Court to entertain a claim made with respect to land outside the constitutional boundaries of the State.

The seas and seabeds stretch from a point on the coast roughly between Bundaberg and Gladstone to the south as far as Noosa Heads for a distance of 100 or so nautical miles. The land in respect of which relief is sought stretches some hundreds of miles to the west of the coast and neither defendant asserts that this Court does not have jurisdiction to entertain that part of the plaintiff's claim.

The seas and seabeds however in respect of which the plaintiff seeks relief stretch at least 50 miles to the east of low water mark on the mainland as far as the 200 metre isobath. I gathered from his submissions that the plaintiff asserts a capacity to claim relief in respect of seabeds up to 200 nautical miles east of low water mark and/or to the edge of the Continental Shelf although his claims do not extend so far.

The plaintiff contends that this Court has jurisdiction to deal with his claim over territorial seas and seabeds because instrumentalities and departments of the State of Queensland and of the Commonwealth of Australia pursuant to State and Commonwealth legislation conduct operations of various sorts in the areas in respect of which he claims relief. Both Commonwealth and State legislation applies in the areas to regulate activities which is consistent with the exercise of a claim to sovereignty over those areas. The plaintiff who I assume has no legal training or experience has contested the applications personally without the benefit of legal representation.

The State of Queensland contends that this Court has jurisdiction only within three nautical miles of low water mark and that it therefore lacks jurisdiction to entertain the plaintiff's claim in respect of seas and seabeds beyond the three mile limit. The Commonwealth of Australia supports the contention of the State of Queensland to the effect that this Court lacks jurisdiction beyond three miles from low water mark but goes further and contends that this Court also lacks jurisdiction to entertain claims made in respect of any area beyond low water mark in respect of which the plaintiff claims relief.

The significant argument upon this application has been that between the State of Queensland and the Commonwealth of Australia.

The State of Queensland contends strongly that this Court does have jurisdiction to entertain the plaintiff's claim for relief up to the "deemed" boundary of Queensland which is said to be fixed in coastal waters three miles from low water mark.

After the decision in The State of New South Wales v The Commonwealth of Australia (The Seas and Submerged Lands case) [1975] HCA 58; (1975) 135 CLR 337 where it was held that State boundaries ended at low water mark and that the States had no proprietary rights in respect of the territorial sea or seabed there was "an offshore constitutional settlement" which resulted in the Commonwealth Parliament enacting:-

Coastal Waters (State Powers) Act 1980 ("The State Powers Act") and

Coastal Waters (State Title) Act 1980 ("The State Title Act")

In Port MacDonnell Professional Fisherman's Association Inc & Anor v The State of South Australia & Anor [1989] HCA 49; (1989) 168 CLR 340 it was held at p. 358 that that legislation was:

"designed largely to return to the States the jurisdiction and proprietary rights and title which they had previously believed themselves to have over and in the territorial sea and underlying seabed."

The short point for which the Commonwealth of Australia contends is that whatever effect be given to The State Title Act "vesting" the territorial sea and sea-bed in Queensland it did not have the effect of making them "part of Queensland"; neither did it have the result that they should be "deemed to be" part of Queensland for any purpose relevant to the jurisdiction of this Court to entertain the plaintiff's claim.

It is the contention of the Commonwealth that the low water mark adjacent to the territorial seas is part of "the frontier of" Queensland and that this Court may exercise its jurisdiction only with respect to land within its frontiers; the mere fact that the State of Queensland has acquired some sort of control over land "in a foreign country" does not enable this Court to entertain an action with respect to title to such land. Only a court having jurisdiction within the frontiers of the country where that land is situate has jurisdiction to entertain such an action -- irrespective of the nationality of whoever owns or controls that land. This it is said follows inevitably from the decision in British South Africa Company v Companhia de Mocambique [1893] AC 602 reaffirmed in Hesperides Hotels Ltd v Muftizale [1979] AC 508. It is contended that Queensland has no sovereignty beyond its frontier which ends at low water mark. Beyond low water mark the submerged land is as "foreign" to Queensland as is land in Canberra or New South Wales and to the extent that the plaintiff seeks declarations in this Court with respect to seas and seabeds beyond low water mark on the Queensland coast, he seeks relief in respect of "foreign land" which comprises the three mile wide territorial seas appurtenant to the coast of mainland Australia and its islands which constitute the Australian nation.

It is said that ss. 7, 8 and 9 of The Supreme Court Act 1991 and ss. 200 and 201 of The Supreme Court Act 1995 properly construed have operation within the Mocambique principle. To the extent that a statutory construction might go further there is no power in the Queensland Parliament to extend its sovereignty and the jurisdiction of this Court with respect to immovables beyond its coastal boundary which ends at low water mark.

Sections 7, 8 and 9 of The Supreme Court Act 1991 provide:-

"Continuance

...

7. The Supreme Court of Queensland, as formerly established as the superior court of record in Queensland, is continued in existence. Jurisdiction generally

...

8. (1) The court has all jurisdiction that is necessary for the administration

of justice in Queensland.

(2) Without limiting subs. (1), the court -

(a) is the supreme court of general jurisdiction in and for the State; and

(b) has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.

Jurisdiction of Court not impaired etc.

...

9. Except as provided in this Act, this Act does not take away, lessen or impair any jurisdiction or power that was, immediately before the commencement of this section, vested in or capable of being exercised by the Court or 1 or more Judges."

Sections 200 and 201 of The Supreme Court Act 1995 provide:-

Common law and general jurisdiction of the court -- jurisdiction at common law

200. The said court or a judge thereof in the administration of the law of Queensland shall have the same jurisdiction power and authority as the superior courts of common law and the High Court of Chancery in England or any or either of the last mentioned courts respectively or any judge thereof have or has in the administration of the law of England and the said court shall have recognisance of all civil pleas and shall have jurisdiction within the said State and its dependence to hear and determine all actions whatsoever real personal and mixed as fully and amply to all intents and purposes as Her Majesty's Courts of Queen's Bench Common Pleas and Exchequer of Pleas at Westminster or either of them lawfully have or hath in England.

Equitable jurisdiction

201. The said court shall have equitable jurisdiction within the State and such power and authority to do exercise and perform all acts matters and things necessary for the due execution of such equitable jurisdiction as is possessed by the Lord High Chancellor or other equity judges of England in the exercise of similar jurisdiction within the realm of England and also to do all such other acts matters and things as can and may be done by the said Lord High Chancellor or other equity judges within the realm of England in the exercise of the common law jurisdiction to him or her belonging and to appoint guardians and committees of the persons and estates of infants and of natural-born fools lunatics and persons deprived of understanding and reason by the act of God and unable to govern themselves or their estates and for that purpose to inquire into hear and determine by inspection of the person the subject of such inquiry or by examination on oath or otherwise of the party in whose custody or charge such person may be or of any other person or persons or by such other ways and means by which the truth may be best discovered and to act in all cases whatsoever as fully and amply to all intents and purposes as the said Lord High Chancellor or other equity judges or the grantee from the Crown of the persons and estates of infants and lunatics natural-born fools and persons deprived of understanding as aforesaid may now lawfully do."

It is said that the basis for the Commonwealth's sovereignty within three nautical miles of low water mark and indeed up to the twelve nautical mile limit from low water mark is the international conventions to which it has become party by reason of its external affairs power under the Constitution.

It is said that under the State Title Act the State of Queensland may arguably be granted a sovereignty of a kind over the territorial seas and submerged lands "as if the land was part of Queensland" but any powers it has or jurisdiction that this Court has in respect of those areas will depend upon the passing of legislation expressly relying on rights and powers given by The State Powers Act -- which the Legislature of the State of Queensland has not yet done with respect to territorial seas and submerged lands. It is said that the enactment of legislation similar in relevant respects to Off-Shore Facilities Act 1986 is required to give this Court jurisdiction for which the State of Queensland contends. Section 7 of that Act however purports to extend the laws of Queensland to "offshore facilities" as defined within "adjacent waters of Queensland" as defined in Schedule 3 to the Petroleum (Submerged Lands) Act 1982 (Qld) whether moored or fixed inside or outside the three mile limit of the territorial sea. To the extent that it operates beyond the three mile limit it may rely upon s. 9 of the Petroleum (Submerged Lands) Act 1967 (Cwth) (as amended). In my view in enacting this legislation the Legislature was addressing the extension of Queensland law to specific facilities beyond low water mark in the "adjacent sea areas" as defined and was not concerned with their distance from it.

Both the Supreme Court Act 1991 and The Supreme Court Act 1995 were of course enacted subsequent to The State Title Act and The State Powers Act.

It is pointed out for the Commonwealth that both The State Title Act and The State Powers Act may properly be characterised as "deeming provisions" and each may be repealed at the election of the Commonwealth -- subject of course to possible entitlement of the State to compensation.

Stated shortly The State Powers Act and The State Title Act are said to deal with the "quality" of title to the territorial seas and submerged lands and State legislative powers in these areas and do not extend the boundaries of the State of Queensland to the three mile territorial sea limit which would be necessary to give jurisdiction to this Court to deal with that part of the plaintiff's claim which relates to territorial seas and submerged lands.

The Commonwealth contends that the vesting of title in territorial seas and submerged lands in the State of Queensland does not of itself enliven the jurisdiction of the Queensland Legislature to pass laws relating to those seas and lands vested in it -- much less does it extend the jurisdiction of this Court over them.

Although the State of Queensland can say that "it owns" the sea bed it cannot say for that reason only that this Court is presently vested with jurisdiction to entertain claims in respect of those seas and seabeds simply because the seas and seabeds do not form part of the State of Queensland.

The Commonwealth of Australia contends that there is no common law or indeed any law of the sort relevant to the plaintiff's claim which applies to territorial seas and submerged lands in the absence of Commonwealth legislation asserting something to the effect "Henceforth in respect of this area over which the Commonwealth is sovereign, common law and/or native title law applies". I rather gathered that even with respect to coastal territorial waters where other Australian States have purported to extend their statutory and common law pursuant to The State Powers Act it is not conceded that those efforts have achieved the result contended for by the State of Queensland. In any event it is unnecessary to consider that question with respect to Queensland territorial seas because it is contended that the Queensland Legislature has not in relevant respects expressly purported to exercise whatever powers are given to it under The State Powers Act to permit this Court to exercise jurisdiction over territorial waters adjacent to the low water mark. Presumably on this approach, this can be done only by overt and explicit reference to territorial waters and lands underneath them in legislation giving such jurisdiction.

In this respect reference is made to the Offshore Facilities Act 1986.

The Commonwealth seeks to have service of the plaintiff's Writ of Summons set aside with leave to amend it to claim relief within the jurisdiction of this Court to grant, and his statement of claim struck out with leave given to re-plead with respect to those areas within the jurisdiction of this Court. There was no suggestion as to what court if any might have jurisdiction to entertain the plaintiff's claims with respect to the areas of sea and submerged land below low water mark to which I have referred if this Court does not have such jurisdiction. It would be unprofitable to examine possible avenues open to the plaintiff to find a court with jurisdiction to entertain his claim.

For the State of Queensland it is contended that the essential elements of the offshore constitutional settlement may be gleaned from the explanatory memorandum and second speech in relation to The State Title Act and The State Powers Act.

It contends that by vesting in the States legislative power over and rights and title to the territorial seas and seabeds around Australia adjacent to them, the Commonwealth legislation conferred upon the courts of the various States "jurisdiction over that area" as if it were within the boundaries of the States concerned. The three mile limit becomes the "deemed boundary" of a State under legislation giving effect to the offshore Constitutional settlement for the purpose of making laws and applying both statutory and common law (including native title law).

It is contended that because the area of the territorial sea and submerged lands which extends seawards for three nautical miles from low water mark has been vested in the State "as if it were within the State", it cannot therefore be considered "foreign" land and so the Mocambique principle has no application in this case.

It is contended that this Court has jurisdiction to determine questions concerning title to land in the seabed of the territorial seas of Queensland in the same way as it has jurisdiction to determine questions concerning title to land within the boundaries of the State constituted inter alia by the low water mark. It is said that express Queensland legislation giving this Court such jurisdiction is unnecessary. Reference is made to the provisions of ss. 8 and 9 of the Supreme Court Act 1991 and ss. 200 and 201 of the Supreme Court Act 1995 which were passed subsequent to The State Title Act and The State Power Act.

The preamble to The State Title Act (1980) indicates that its purpose is to vest in each of the States "proprietary rights and title in respect of certain land beneath the coastal waters adjacent to the State and within the sovereignty of the Commonwealth".

Section 4(1) of the Act provides:-

"4(1). By force of this Act, but subject to this Act, there are vested in each State, upon the date of commencement of this Act, the same right and title to the property in the sea-bed beneath the coastal waters of the State, as extending on that date, and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the State if that sea-bed were the sea-bed beneath waters of the sea within the limits of the State."

On its face this section would during the operation of the Act give the states the same right and title to the territorial seabed and waters above as they have to Crown land (and waters above) within the frontiers or borders of those states.

Section 6 provides:-

"6. Nothing in this Act affects the status of the territorial sea of Australia under international law or the rights and duties of the Commonwealth in relation to ensuring the observance, in relation to that sea or any other waters, of international law including the provisions of international agreements binding on the Commonwealth and in particular the provisions of the Convention on the Territorial Seas and the Contiguous Zone relating to the right of innocent passage of ships".

Section 8 provides:-

"8. Nothing in this Act shall be taken to:

(a) extend the limits of any State; or

(b) derogate from any right or title of a State apart from this Act."

The State Powers Act is described as:-

"An Act to extend the legislative powers of the States in and in relation to coastal waters."

The preamble reads:

"Whereas, in pursuance of paragraph (xxxviii) of section 51 of the Constitution of the Commonwealth, the Parliaments of all the States have requested the Parliament of the Commonwealth to enact an Act in, or substantially, in the terms of this Act --"

Section 5 of that Act provides:

"5. The legislative powers exercisable from time to time under the constitution of each State extend to the making of:

(a) all such laws of the State as could be made by virtue of those powers if the coastal waters of the State, as extending from time to time, were within the limits of the State, including laws applying in or in relation to the sea-bed and subsoil beneath, and the airspace above, the coastal waters of the State.

(b) --

(c) --"

Section 7 of that Act provides:

"7. Nothing in this Act shall be taken to:

(a) extend the limits of any State;

(b) derogate from any power existing, apart from this Act, to make laws of a State have an extra-territorial effect; or

(c) give any force or effect to a provision of a law of a State to the extent of any inconsistency with a law of the Commonwealth or with the Constitution of the Commonwealth of Australia or the Commonwealth of Australia Constitution Act."

By express terms neither The State Title Act nor The State Powers Act has the effect of derogating from the right of the State of Queensland to make extra territorial laws for the purpose of achieving the peace, order and good government of Queensland within its State boundaries under the principle explained in Croft v Dunphy [1933] AC 156 at p. 162. In this respect I refer to the observations in Port Macdonnell Professional Fishermen's Association Inc v South Australia [1989] HCA 49; (1989) 168 CLR 340 at 370.

In my view the provisions of The State Powers Act must be intended to do more than merely confirm the powers which the State of Queensland always had under the Croft v Dunphy principle to pass laws having application in Coastal waters provided they might be categorised as being for the peace, order and good government of the State within its frontiers.

The State Titles Act on its face purports to vest in Queensland property, rights and title to the coastal waters and submerged lands over which the Commonwealth of Australia has sovereignty and over which, having regard to the decision in the Seas and Submerged Lands case, the States never enjoyed sovereignty. It would be unhelpful and it is unnecessary to embark upon a consideration of the basis upon which the Commonwealth of Australia rather than the States enjoys internationally and nationally sovereignty over the territorial seas and seabeds to which they are adjacent. It suffices to say that both the The State Title Act and The State Powers Act were enacted on this basis.

The matter in dispute between the State of Queensland and the Commonwealth of Australia turns on a very short point. That is whether under The State Title Act and The State Powers Act the State of Queensland has a sufficient interest in and/or sovereignty over the coastal waters and lands underneath them to enable this Court to have jurisdiction to entertain the plaintiff's claim for a declaration that the people he claims to represent have a "native title" claim to the waters and lands beneath them and the resources to be found in them. Essentially it is the argument for the Commonwealth that
s. 4(1) of The State Title Act does not really make the coastal waters and land beneath them "part of the State"; rather it "vests in" the State those waters and seabed beneath "as if" they were "within the limits of the State".

It is unclear to me upon this argument just what practical effect could be given to the words "same right and title -- as if the seabed under the coastal waters of the State --were within the limits of the State". On one view the whole object of the legislation was to give the States something they did not have which it was thought desirable they should have in reaching the Constitutional settlement. The term "limits of the State" in s. 4(1) which vests right and title to property in seabeds suggests a grant of sovereign rights as much as the same term used in s. 8(a) makes it clear that the "vesting legislation" is not intended to extend permanently the sovereignty of the State over the waters and seabed "vested in it" at least vis a vis the Commonwealth and the other States and Territories of Australia. If such had not been the object of the legislation, one can only wonder why s. 4(1) did not merely vest the seabeds etc in "the States" or even merely vest "the proprietary rights and title" in the seabeds in the States without introducing the notion "as if ... within the limits of the State".

At the commencement of the Act the seabeds adjacent to the States are described as "being within the sovereignty of the Commonwealth". In my view this preamble simply explains how it is that the Commonwealth purports to vest proprietary rights and title in submerged lands in the States when those lands are not part of them but in law are a part of the land claimed by and so vested in the Commonwealth of Australia as a "new nation" taking advantage of international treaties and conventions.

Both The State Title Act and The State Powers Act of course must be considered in the context of the legislative provisions of The Seas and Submerged Lands Act 1973 and the decision in The Seas and Submerged Lands case in 1975. In that case at p. 363-4, Barwick CJ dealing with the conventions in the Schedule to the Act observed:-

"The Convention concedes to the nation state with a littoral, a "coastal State", to use the terms of the Convention, what it describes as sovereignty over the territorial sea, its bed and subsoil and superjacent airspace. This international concession extending to the seabed and airspace perhaps surpasses any dominion theretofore accorded by custom or practice between nations. But however that may be, the conceded sovereignty undoubtedly now depends upon the terms of the Convention. The Act, in my opinion, uses the word "sovereignty" in the same sense as it is used in the Convention. The Act, in my opinion, does not purport to take any greater power over the subject matter of the Conventions than they confer on the coastal state. Sovereignty is a word, the meaning of which may vary according to context. The same may be said of "sovereign rights". I find no need in order to dispose of this issue to expound upon the meaning either in the context of these conventions and as used in the Act. At the least, sovereignty includes the dominion which was earlier conceded by international custom: it may possibly enlarge it. Sovereign rights at least imply exclusive and paramount rights to exploit together with all the power necessary to secure the principal rights. But the important thing is that whatever the extent of the power or jurisdiction sovereignty or sovereign rights embraces, that power, jurisdiction or authority is conceded internationally to the nation state and depends on international mutuality".

In giving effect to both The State Title Act and The State Powers Act one must have regard to the savings sections -- s. 8(a) of The State Title Act and s. 7(a) of The State Powers Act which provide that nothing in those Acts shall be taken to "extend the limits of any State".

It seems to me that those saving provisions simply make clear that the Acts do not have the effect of permanently extending the "boundary" of any State jurisdiction; they clearly are not intended to constrain the exercise of State domestic control over coastal territorial waters and lands beneath them -- the whole purpose of the legislation was to give to the States the powers they thought they had prior to The Seas and the Submerged Lands case. The legislation may well have given them more powers than they thought or could reasonably have thought they had prior to that case.

Sections 8(a) of The State Title Act and 7(a) of The State Powers Act simply preserve a locus poenitentiae for the Commonwealth to repeal one or both of those Acts and avoid any argument being raised that the effect of the legislation was to permanently cede title to coastal waters and submerged lands to the States to achieve the legal result which prior to the decision in The Seas and Submerged Lands case many mistakenly believed to be the true legal position. While they remain in force those Acts in my view have the effect that the Commonwealth of Australia subject to express reservations, has ceded to the States all the rights, powers and jurisdiction over the seas and submerged lands which the States would have enjoyed had those seas and lands been within the limits or boundaries of the States. Such an effect is consistent with the second readings of both The State Title Bill and The State Powers Bill.

The analogy drawn by the Commonwealth between the vesting "of seabeds" in territorial waters adjacent to the States and the ownership or lease by the States of a building in an overseas nation I find unpersuasive in the light of the wording of The State Title Act and The State Powers Act. Should coastal waters and submerged lands be identified as "foreign lands" and so within the Mocambique principle, just as perhaps land in New Zealand or even in the State of New South Wales would be land "foreign" to Queensland and therefore not subject to the jurisdiction of this Court, it would seem to defeat the whole or at least the principal purpose of the offshore constitutional settlement.

In my view the purpose of the Constitutional settlement reflected in The State Title Act and The State Powers Act was to establish a stable and permanent constitutional arrangement by vesting proprietary rights in and title to the seabed and the adjacent territorial sea in the states to support the grant of the legislative power given. At least that was the view expressed in the second reading of The State Powers Bill. One basis of the Mocambique principle is the lack of legislative power and consequent ability to enforce a decree of a Court of a State beyond the limits of the State of which it is a constitutional arm of government. That basis at least is absent as a consequence of the legislation enacted to implement the offshore Constitutional Settlement.

In determining the matter in dispute between The Commonwealth and the State of Queensland, an important consideration is the effect of The State Title Act and The State Powers Act on the ambit to be given to The Supreme Courts Acts of 1991 and 1995. I keep in mind the observation of Fitzgerald J (as he then was) in Stack v Coast Securities (1983) 46 ALR 451 at 459-60:

"It does not appear helpful or conducive to the harmonious operation of the judicial system as a whole to search for distinctions between the nature or historical origins of the respective courts and it seems empty to me to speak in this context of presumptions that courts of general jurisdiction act within jurisdiction. The reality, in our federal judicial system, is that there is no court of unlimited original jurisdiction. Whatever other approach might have been adopted, the result of the Constitution and the laws of the Commonwealth Parliament is that each of the courts in our system has very real limits upon its jurisdiction which are subject to supervision by the High Court. Each of this court and the Supreme Court of Queensland is a superior court of record. It may be broadly asserted that, since the role which this court has been assigned to play in respect of disputes such as exist between the combatants in the present litigation is given it by legislation of the Commonwealth Parliament, the validity of which has not been questioned, any interference caused to what would otherwise have been the position has to be tolerated. On the other hand, except to that extent, the jurisdiction which the Supreme Court would otherwise have had remains unimpaired and it is called upon, in the exercise of that jurisdiction, to give effect to the Trade Practices Act as part of the law of the Commonwealth in force in Queensland."

On the second reading of The State Title Bill it was observed that as a consequence of clarification of the law in the Seas and Submerged Lands case there were created -

"-- serious legal problems as to the States' power to grant proprietary rights in the territorial seas even for such obvious matters as wharves and jetties. The present Bill will remedy the situation."

I am unpersuaded by any cited authority that it is necessary for the State of Queensland to pass legislation purporting to extend the effect of existing law whether it be statutory law or common law to the area of land and waters "vested in each State" which has "the same right and title to the property in the seabed" as it would have if that seabed were "within the limits of the State" as a consequence of The State Title Act and The State Powers Act. After the enactment of those Acts in 1980 in my view any Act passed by the Queensland Legislature would prima facie have force not merely within the limits of the State but also with respect to the territorial seas and seabeds the subject of those Acts. The Supreme Court Act 1991 and the Supreme Court Act 1995 is legislation within the contemplation of those Acts because it provides for the administration of justice in Queensland -- as Young J put it in Sutton v. Warringah Shire Council (1985) 4 NSWLR 124 at 132 when considering the effect to be given to s. 23 of The Supreme Court Act 1970 (NSW) which is in terms similar to s. 9(1) of the Supreme Court Act 1991 (Qld) -- "The Court would be bound to hear the case because of its duty to do justice in all matters for the good of the people of" Queensland. It is unnecessary to consider what may have been the position if no legislation relating to the jurisdiction of this Court had been enacted subsequent to The State Powers Act 1980.

Section 2 of Australia Act 1986 provides:

Legislative powers of Parliaments of States

2.(1) It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation.

(2) It is hereby further declared and enacted that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State but nothing in this subsection confers on a State any capacity that the State did not have immediately before the commencement of this Act to engage in relations with countries outside Australia.

Section 9 of the Acts Interpretation Act 1954 (as amended to 20 June 1997) provides:

"Act to be interpreted not to exceed Parliament's legislative power

9. (1) An Act is to be interpreted as operating -

(a) to the full extent of, but not to exceed, Parliament's legislative power; and

(b) distributively.

(2) Without limiting subsection (1), if a provision of an Act would, apart from this section, be interpreted as exceeding power

(a) the provision is valid to the extent to which it does not exceed power; and

(b) the remainder of the Act is not affected.

(3) Without limiting subsection (1), if the application of a provision of an Act to a person, matter or circumstance would, apart from this section be interpreted as exceeding power, the provision's application to other persons, matters or circumstances is not affected.

(4) This section applies to an Act in addition to, and without limiting, any provision of the Act".

Section 9A provides:

"Declaration of validity of certain laws

9A. Each provision of an Act enacted, or purporting to have been enacted, before the commencement of the Australia Acts has (and always has had) the same effect as it would have had, and is (and always has been) as valid as it would have been, if the Australia Acts had been in operation at the time of its enactment or purported enactment."

The Supreme Court Acts 1991 and 1995 in my view are within the contemplation of s. 2 of the Australia Act 1986 and s. 9 of The Acts Interpretation Act 1954.

In my view those The Supreme Court Acts are to be interpreted under s. 9 of The Acts Interpretation Act as within the legislative power given the Queensland Legislature under The State Powers Act in 1980. It is unnecessary for those Acts or any other Act to expressly assert either the source of the legislative powers or that they have application within the areas defined in The State Title Act as well as within the limits of the State.

The plaintiff brings his representative action on behalf of residents of Queensland who claim declaratory relief with respect to submerged lands over which Queensland has been ceded a limited and non-permanent sovereignty under The State Title Act and The State Powers Act.

In my view the construction for which the Commonwealth contends would reduce the effect of The State Title Act and The State Powers Act upon the territorial seas and seabeds adjacent to the State of Queensland to that of giving the State rights analogous to those under a lease of a building in London; this would not achieve the obvious purpose of the legislation to give effect to the offshore constitutional settlement.

I conclude therefore that this Court does have jurisdiction to entertain the plaintiff's claim to the extent that it relates to coastal waters and submerged lands within three nautical miles of low water mark on the coast of Queensland.

I hold on the basis of The Mocambique principle that this Court has no jurisdiction to entertain the plaintiff's claim to the extent that it relates to waters or submerged lands beyond the three mile limit.

I therefore set aside service of the writ of summons on the second defendant as presently endorsed and strike out the statement of claim delivered in this action and give leave to the plaintiff to amend his writ of summons and deliver a statement of claim so that their ambit does not extend beyond coastal waters and submerged lands beneath those waters within three nautical miles of low water mark appurtenant to that part of the coastal strip specified in the plaintiff's claim for relief. Of course that part of the claim with respect to land above low water mark in which the Commonwealth has no interest is within the jurisdiction of this Court and I make no order in respect of it.

In making this order I am comforted by its effect in obviating the necessity for a Court or Courts to consider in isolation those native title claims above and those below low water mark in the extensive area of coastal waters, including many islands, to which the plaintiff's claim relates. This order of course is of a procedural nature only and no argument has been advanced or considered as to the substance or merits of the plaintiff's claim.