Getting into the pickle instead of the fish:
The significance of mistaken colonial legal opinion for current Australian offshore jurisdiction.

Dr Warwick Gullett

Abstract

This paper examines the legacy for Australian offshore jurisdiction of the largely forgotten Federal Council of Australasia (1885-1899) and the drafting history of the curiously-worded fisheries power in s 51(x) of the Australian Constitution, which grants the Federal Parliament the power to make laws with respect to ‘Fisheries in Australian waters beyond territorial limits’. The complications which have arisen from this power stem from the misconception of its drafters that the territorial limit of the colonies was located at three nautical miles offshore. Remarkably, they were ignorant of the decision of the British Court of Crown Cases Reserved in R v Keyn (1876) 2 Ex D 63 which established that British territory ends at the low water mark. Furthermore, they could not have imagined that more than 70 years later the High Court of Australia would determine that they were also mistaken in their belief that the parliaments of the colonies were unable to enact legislation with effect outside colonial territory. The paper examines the reasons for these mistakes and the consequences of them for Australia’s current complex offshore legal regime which differs markedly from what was intended by the drafters of the Constitution.