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into Queensland of the disease known as pneumonic influenza or effective in ensuring the suppression of such disease. All or any persons on board any

such vessel, including the master of such vessel, shall be subject to the orders and directions of the Commissioner in relation to their examination, isolation and accommodation.

On behalf of the plaintiffs it was stated that the defence authorities threatened, and intended, unless restrained, to act in contravention of the foregoing Queensland State regulation, and to disregard it by refusing to obey it, and the plaintiffs sought a declaration that the proclamation and regulation were valid, of full force and effect, and binding on the persons in control of all vessels, and asked for an injunction restraining the Commonwealth, its officers, agents and servants, from disobeying them. It was further stated that one party of 200 returned soldiers from the transport Karoola had, in contravention of the regulation, been landed at the quarantine station at Lytton, Brisbane, and that four of their number broke camp, and had to be searched for and arrested It was learned that another 2,000 returned soldiers were to be landed on 10th February, and it was feared that they would be the means of introducing the epidemic to Queensland. It was the unanimous opinion of Queensland health officers that soldiers should not be landed on the mainland, but should be quarantined on one of the islands in Moreton Bay, from which escape would be almost impossible. It was argued by counsel that although section 51 (IX.) of the Constitution Act transferred quarantine to the Commonwealth, a State has a right to keep persons out of the State who are liable to spread disease throughout the State; that a State had full authority to prevent any person from entering the State who might introduce disease.

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Mr. Justice DUFFY said :- But you do not propose to keep them out of the State. What you propose to do is to say where, within your State certain persons shall be landed and where certain transports shall anchor. The men concerned are soldiers who left the State under orders to fight for the Commonwealth. They are in the hands of the Defence Department, which can surely order the soldiers to proceed to any portion of the Commonwealth. If it is a matter of repatriation, surely the Commonwealth can return men from whence it took them. If the States can prevent men landing where is the power of the Commonwealth Government to admit them? He might as well say that he had not been convinced that the Queensland Government had ground for an action in law.

Yet

it might be considered by plaintiffs that the matter should be argued before the Full Court, and he did not wish to do anything that would prevent that being done. He could refuse the application; could refer it to the Full Court, or could adjourn it so that the matter could be left open.

Counsel for the Commonwealth opposed any adjournment and did not think that any application should be made to the Full Court unless His Honor thought there was any point to be argued. His Honor said "I do not." The plaintiffs, he said, had not established any ground in law for the application or in support of the application. In ordinary circumstances the application would have been refused, but the points plaintiff had put before him had been gravely argued, and he gave the representatives of Queensland credit for thinking that the acts of the Queensland Government were correct. That being so, he thought the best thing to be done was to adjourn the application. If plaintiff's points were valid they were of vast importance to the State of Queensland, and could only be finally decided by a sitting of the Full High Court. In order to preserve to plaintiff the right to carry the question further, he proposed, as he said, to adjourn the application to a day to be appointed, and either party might apply to him to have the time of hearing fixed. If no irreparable consequences arose through landing troops at the quarantine station, he presumed the matter would rest where it was, but in any event it should be understood that nothing done by him should be taken as expressing any doubt as to the validity of the Acts of the Commonwealth in dealing with these or other soldiers in Australia, or coming back to Australia. The same applied to all ships and all people coming to the Commonwealth. His Honor ordered that plaintiffs should pay defendant's costs up to date. -The Argus, 11th Feb., 1919.

51. (x.) Fisheries in Australian waters beyond territorial limits:

§ 58. "FISHERIES IN AUSTRALIAN WATERS.” Weighty reasons were advanced in the Convention, both for and against the retention of the words "Australian waters beyond territorial limits." In opposition to the words reference was made to the vagueness of the expression" Australian waters."

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In the absence of a definition, it was said, complicated questions might arise in practice as to how far from the Australian coast Australian waters" might be deemed to extend, and whether at a given time a fishing boat was within those waters. More important still was the innovating proposal to give the Federal Parliament power to legislate respecting fisheries beyond its territorial limits. Outside those limits the ocean was the highway of all nations, and no country could claim to exercise exclusive jurisdiction over the high seas. It was not conceivable that any law affecting fisheries outside the territorial limit would be legally operative. It was not sufficient to say that the Imperial Parliament would give the Commonwealth power to legislate in respect of matters occurring beyond those limits. The Imperial Parliament could not effectively grant the Commonwealth a power which, according to the law of nations, it did not possess.

The arguments in support of retaining the words admitted the difficulties pointed out, but claimed that there were powerful considerations which more than outweighed those difficulties. In the first place this was by no means a new and untried grant of power; by section 15 (c) of the Federal Council of Australasia Act (48 & 49 Vict. c. 60), power was given to that body to legislate in respect of "fisheries beyond territorial limits," the identical words used in this sub-section; the only condition to the exercise of its jurisdiction being (1) that its laws should be enforced only in Colonies which had adopted the Act and which were represented in the Council, and (2) that proposed laws relating to section 15 (c) should be reserved for the signification of Her Majesty's pleasure. This had not remained a dormant power, but had been exercised.

In January, 1888, the Federal Council passed an Act to regulate pearl-shell and beche-de-mer fisheries in Australian waters, adjacent to the Colony of Queensland.

This Act was reserved for the Royal assent, which was proclaimed on 19th July, 1888. In February, 1889, the Federal Council passed an Act to regulate the pearl-shell and beche-de-mer fisheries in Australian waters adjacent to the Colony of Western Australia. It contained provisions substantially similar to those of the Queensland Act. The extra-territorial waters, within which it was declared to be in force, were defined in the schedule.

Both the Queensland and West Australian Acts are remarkable for the stringency of their provisions relating to the employment of coloured labour, showing that "laws with respect to fisheries" are capable of comprehending regulations controlling the employment of labour used in connection with fisheries. These Acts are still in force, their operation being preserved by clause 7 of the Commonwealth Constitution Act. Thus, it was pointed out, extra-territorial laws relating to fisheries had been already sanctioned by the Imperial Government, and enforced by the Governments of the two Colonies over a wide expanse of ocean, the boundaries of which were defined within parallels of latitude and degrees of longitude. The pearl-shell and beche-de-mer trade had been regulated; the fisheries had been protected; fees had been collected; labour had been supervised, and everything expected and desired had been obtained. Here, therefore, they had an illustration of the practicability of the grant of power contemplated. Having received such a grant in the Federal Council Act, it would not be wise for Australia to surrender it by omitting a similar enabling provision from the Constitution of the Commonwealth. The power should appear on the face of the Constitution; they ought not to trust any implication hidden away in other clauses.

The practical arguments were strengthened by broader and more patriotic consideration. Such spheres of influence and control as had been already granted by the Imperial Parliament to the Federal Council should be reserved for and transferred to the Commonwealth.

The people of such a Continent as Australia, unique in its isolation and configuration, should have the right of control over waters outside the ordinary territorial limits. We should begin our career as a Commonwealth by mapping out a sphere of influence, and of commercial trading operations, all round the Continent, and for some considerable distance from the coast. Within that sphere the Commonwealth would represent and protect, not merely Australian interests, but Imperial interests. We were taking over general powers from the States and from the Federal Council, and those powers should be accepted undiminished, and maintained unimpaired, without abandoning one jot or yielding one tittle of what had been acquired by the labours and triumphs of the pioneers of Australian progress. (See speeches of Mr. C. C. KINGSTON, Sir JOHN FORREST, Mr. A. DEAKIN, and Mr. R. E. O'CONNOR. Conv. Deb., Melb., pp. 1861-1863 and 1872).

Extra-Territorial Operations of Law.

This sub-section affords an interesting illustration of one of the few Federal powers granted to the Commonwealth Parliament authorizing it to pass laws capable of having extra-territorial operations, that is, operating on the high seas beyond the three mile. limit. Generally speaking, the grant of powers of self-government to the component parts of the British Empire connotes restriction of their exercise to the limits of the local territory and its adjacent sea limit is recognized universally by the law of nations and by Statute Territorial Waters Jurisdiction Act 1878, 41 & 42 Vict. c. 73.

Hence in the grant of powers to the self-governing communities of the Empire the maxim Extra territorium jus dicenti impune haud paretur primarily applies (Macleod v. Attorney-General for New South Wales, (1891) A.C., 455, at p. 458), as it does to other acts of British legislation, and to extend the effect something must appear either from the express language or the necessary scope and intent of its operations as apparent on the face of the Statute. Whatever is necessarily incident to the proper exercise of a power passes with it as an implication: Kielley v. Carson, 4 Moo. P.C.C., 63; Barton v. Taylor, 11 App. Cas., 197; Baxter v. Commissioners of Taxation (N.S. W.), 4 C.L.R., 1087, at pp. 1157, 1158; AttorneyGeneral for Canada v. Cain, (1906) A.C., 542; Hudson v. Guestier, 6 Cranch, 281; The Ship" North" v. The King, 37 Can. S.C.R., 385. These cases are examples of accessory incidents attached by necessary implication to main powers even where the accessory powers require extra-territorial application; but they are clearly to be distinguished from any authority to claim additional main powers. Per ISAACS, J. in the Merchant Service Guild of Australasia v. The Commonwealth SS. Owners' Association, (1913) 16 C.L.R., at p. 690.

51. (XI.) Census58A and statistics :

§ 58A "CENSUS AND STATISTICS."

LEGISLATION.

CENSUS AND STATISTICS (DEAKIN) ACT 1905.

The office and bureau of Commonwealth Statistician is created, with powers and duties defined partly by the Act and partly by regulations under which arrangements may be made with the States for aid in giving effect to the Act.

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