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1 (1976) 11 A.LR. 129. High Court of Australia; Barwick C.J., Stephen, Mason, Jacobs and Murphy JJ.
2 (1976) 11 A.LR. 142. For commentary see Edeson, , “The English Theft Act in Australian Waters” [1977] 1 Crim. LJ. 71Google Scholar.
3 [1977] V.R. 121.
4 [1976) 11 A.LR. 129.
5 [1974] 2 N.S.W.LR. 143.
6 [1975] 2 N.S.W.LR. 201.
7 E.g. ss. 91, 509, 735, 736.
8 s. 509.
9 s. 735.
10 s. 736.
11 s. 54.
12 The sterling value in 1958 was approximately £74(stg). Parl. Deb. H. of L. (5th series) Vol. 209, col. 1163.
13 S. 2(4).
14 S. 2.
15 s.1.
16 This section states: “[n]otwithstanding anything in the Interpretation Act, 1889, the expression 'Colony' shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion”.
17 Law Reform Commission, New South Wales Working Paper on Legislative Powers (1972) para. 147. (Subsequent references: L.R.C., Working Paper).
18 Australian Pilot to Halsbury's Laws of England (3rd ed. 1964) Vol. covering English Vols. 31-39, 214.
19 [1975] 2 N.S.W.L.R. 201, 204-205 per Hutley J.A., with whom Street CJ. and Moffitt P. concurred.
20 [1974] 2 N.S.W.L.R. 143, 146-147.
21 (1976) 11 A.L.R. 129, 132.
22 Ibid.
23 Id. 133.
24 Castles, , “Limitations on the Autonomy of the Australian States” [1962] Public Law 175, 182; Lumb, The Constitutions of the Australian States (4th ed. 1977) 91Google Scholar. See also Halsbury's Laws of England (4th ed.) Vol. 6, para. 1027: “[f]rom the middle of the nineteenth century, however, there was a convention against Parliament legislating for the self-governing colonies and colonies with responsible government without their consent”.
25 [1977] V.R. 121, 129.
26 [1975] 2 N.S.W.L.R. 201.
27 Id. 205.
28 (1976) 11 A.L.R. 129, 135.
29 Ibid.
30 Id. 136.
31 Id. 136-137. SeeParl. Deb. H. of C. (5th series) Vol. 581, cols. 1571-1573.
32 The observation by Misra, “A Note on Liability of Shipowners in Queens-land” (1965) 14 International and Comparative Law Quarterly 1394, 1398, that “[i]t seems odd that the implementation of an international convention by the United Kingdom Parliament would have statutory force in Queensland, a constituent unit of Australia, which itself is not a party to the said Convention”, would be applicable to any State.
33 Stephen J. expressed his agreement with “the several and quite distinct reasons stated in each of their respective reasons for judgment” by Mason J. and Jacobs J.: (1976) 11 A.LR. 129, 130. It is not entirely clear to what extent Stephen J. would acknowledge and rely upon the legislative policy described by Mason J.
34 (1976) 11 A.LR. 129, 138-139.
35 Id. 139.
36 Id. 140.
37 E.g., Commonwealth v. Queensland (1975) 7 A.L.R. 351.
38 The question of the content of and limits to the sovereignty and powers of the United Kingdom Parliament remains controversial. The diverse viewpoints are collected and analysed in a recent article: Winterton, “The British Grundnorm: Parliamentary Supremacy Re-examined” (1976) 92 L.Q.R. 591.
39 Colonial Laws Validity Act 1865.
40 Parl. Deb. H. of C. (5th series) Vol. 581, cols. 1563-1566 per Mr Knox Cunningham, the mover of the Bill.
41 [1975] 2 N.S.W.L.R. 201, 203, 206.
42 Australia and the British Commonwealth (1929) 103.
43 S. 5.
44 S. 2.
45 Dixon, , “The Statute of Westminster 1931” (1936) 10 A.L.J. Supp. 96, 100Google Scholar; Sawer, , “The British Connection” (1973) 47 A.L.J. 113, 115Google Scholar; Zines, , “The Growth of Australian Nationhood and its Effects on the Powers of the Commonwealth” in Zines (ed.) Commentaries on the Australian Constitution (1977) 30Google Scholar.
46 According to Wheare, The Statute of Westminster and Dominion Status (1st ed. 1938) 213, the rationale behind the States' Cillllpaign for protective clauses in the Statute was the “assumption that the words 'the law in force in that Dominion' in the clause which was to become section 4 meant, in the case of Australia, the law of the States as well as the law of the Commonwealth, and that the section required, therefore, the request and consent of the Parliament and Government of the Commonwealth before any future Act of the United Kingdom Parliament could extend to Australia either as part of the law of the Commonwealth or as part of the law of the States”.
47 (1975) 8 A.L.R. 1.
48 Lumb, and Ryan, , The Constitution of the Commonwealth of Australia Annotated (2nd ed. 1977) 190-191Google Scholar; Nettheim, , “The Power to Abolish Appeals to the Privy Council from Australian Courts” (1965) 39 A.L.J. 39, 44-48Google Scholar; Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed. 1976) 173Google Scholar.
49 This course is advocated by Murphy J. (1976) 11 A.L.R. 129, 141. It is understood that discussions between the Commonwealth and States at a senior level have occurred intermittently in recent years on the broad question of offshore legislation, which would include merchant shipping.
50 (1976) 11 A.L.R. 129, 137.
51 Parl. Deb. H. of L. (5th series) Vol. 209, col. 1164.
52 Italics added.
53 Authorities are cited by Mason J. (1976) 11 A.L.R. 129, 133-134.
54 L.R.C., Working Paper paras. 148-150.
55 Colonial Laws Validity Act 1865, s. 2.
56 Australian States Constitution Act 1907 (U.K.), s. 1 and clause VIII of the Instructions to the Governor of 29 October 1900.
57 Australian Constitutions Act 1842 (U.K.), s. 32 and, for example, New South Wales Constitution Act 1855 (U.K.), s. 3.
58 Although the States do not formally have the power to legislate extra-territorially, the courts have recognised such power in respect of laws made for the “peace, order and good government” of the State. The L.R.C., Working Paper digests the authorities, paras. 112-133. A recent confirmation of the States' power was the High Court decision, Pearce v. Florenca (1976) 9 A.L.R. 289.
59 “The Statute of Westminster” (1932) 5 A.L.J. 398, 400-402.
60 Wheare, op. cit., 223.
61 Dixon, loc. cit.
62 L.R.C., Working Paper para. 5.