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Final

LLB203 Study Guide - Final Guide: Consumer Protection, Pesticide, Chicory
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12 Pages
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Spring 2018

Department
Law
Course Code
LLB203
Professor
Peter black
Study Guide
Final

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Extraterritoriality
Introduction
Extraterritoriality refers to laws which say they apply outside of the territory of the
jurisdiction that has enacted them.
oRemember the external affairs power in s 51(xxix) for Commonwealth laws.
Generally, laws are drafted without reference to place of jurisdiction, but there is a
presumption of statutory interpretation that laws are only intended to apply in the
Parliament’s territory.
oSee, for example, Morgan v White (1912) 15 CLR 1
New South Wales Bankruptcy Act 1898 provided that discharge could
be refused where the bankrupt had previously been bankrupt.
Held, that it wasn’t meant to apply to someone who had previously
been bankrupt in Western Australia.
The relevant question is where Act makes its intention to apply outside jurisdiction
clear, does the Parliament have power?
The Imperial Background
The UK Parliament always assumed it had power to make laws with overseas effect
(where the intent to do so was clear).
oFor example, all the laws about the colonies.
oEnforcement would be a problem if the parties were overseas, but not if the
parties were in the jurisdiction.
But as to the colonies, the power to make extraterritorial laws was not as clear.
oMacLeod v Attorney-General [1891] AC 455
Held, that colonies had no extraterritorial power.
oAshbury v Ellis [1893] AC 339 and Croft v Dunphy [1933] AC 156
Held, that colonies can make extraterritorial laws where they have a
connection with the colony.
Application to the States
There are two questions to be considered:
1. where are the boundaries?
2. what is the scope of extraterritorial power?
1. What are the boundaries?
Land boundaries:
oIn general, the land boundaries are defined in the various Imperial documents
separating the other colonies from New South Wales.
Sea boundaries:
oThe colonial descriptions generally start and/or stop at the coastline.
However, the colonies had assumed that they had sovereignty over the three-
mile zone that was traditionally recognised as the “territorial sea” at
international law, and the drafters of the Constitution seemed to have
assumed this when they gave the Commonwealth the power in s 51(x) over
“fisheries in Australian waters beyond territorial limits”.
oWhen the Commonwealth Parliament enacted the Seas and Submerged
Lands Act 1973 to give effect to the Convention on the Territorial Sea and
Contiguous Zone and the Convention on the Continental Shelf, it not only
asserted the right, newly recognised in international law, to control the
continental shelf but also assumed that it had power over the sea and
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submerged lands back inshore, to the low-water mark or to the “closing line”
joining the headlands at the opposite sides of the bays and the mouths of
rivers.
New South Wales v Commonwealth (the Seas and Submerged Land Acts case)
oHeld, the outer boundaries of the states were indeed the low water
marks or the closing lines.
2. Scope of extraterritorial power
Connection test: Broken Hill South Ltd v Commissioner of Taxation
Held, that New South Wales could impose income tax on money received as interest
on a mortgage on property in New South Wales even if the taxpayer was not a New
South Wales resident. Dixon J set out the connection test:
“The power to make laws for the peace, order and good government of a State does
not enable the State Parliament to impose by reference to some act, matter or thing
occurring outside the State a liability upon a person unconnected with the State
whether by domicil, residence or otherwise. But it is within the competence of the
State legislature to make any fact, circumstance, occurrence or thing in or
connected with the territory the occasion of the imposition upon any person
concerned therein of a liability to taxation or of any other liability. It is also within the
competence of the legislature to base the imposition of liability on no more than the
relation of the person to the territory. The relation may consist in presence
within the territory, residence, domicil, carrying on business there, or even
remoter connections. If a connection exists, it is for the legislature to decide how far
it should go in the exercise of its powers. As in other matters of jurisdiction or
authority courts must be exact in distinguishing between ascertaining that the
circumstances over which the power extends exist and examining the mode in which
the power has been exercised. No doubt there must be some relevance to the
circumstances in the exercise of the power. But it is of no importance upon the
question of validity that the liability imposed is, or may be, altogether
disproportionate to the territorial connection or that it includes many cases
that cannot have been foreseen.” [emphasis added]
Connection test confirmed in the 1970s:
Pearce v Florenca
oThe defendant was charged under a Western Australia law with catching
undersized fish in three-mile zone off Western Australia. (This was after the
Seas and Submerged Land Acts case, so the three-mile zone was not
regarded as part of Western Australia any more.)
oHeld, that the law had a sufficient connection with Western Australia.
oGibbs J confirmed the connection test and said that in the public interest the
test should be liberally applied, and that law should be held valid if there
is even a remote or general connection between the subject matter and
the State.
Raptis v South Australia (1977) 138 CLR 346
oHeld, the Fisheries Act 1971 (SA) was prima facie valid in the waters of
Investigator Strait, well outside the three-mile limit as there was still an
economic and geographic connection with South Australia. (Although the law
was inconsistent with the Commonwealth Fisheries Act 1952, so the state Act
was unenforceable for that reason.)
The “Off-Shore Settlement”:
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In 1980, the Commonwealth enacted by request of the States under s 51(xxxviii)
the Coastal Waters (State Powers) Act 1980 and the Coastal Waters (State Title)
Act 1980.
The Acts provided:
othat States could exercise powers and hold title in the three-mile strip as
if it was the territory of a State;
othat States could exercise power over sea-floor works, etc, in “adjacent
area” even beyond three-mile strip;
ofor joint control of offshore fisheries by Commonwealth-State agreements;
ofor exceptions for Great Barrier Reef Marine Park.
Following the “Off-Shore Settlement”, the legal position was:
State laws now valid (if not inconsistent with a Commonwealth law) within the
three-mile strip simply under the Coastal Waters (State Powers) Act 1980.
the connection test only needed outside three-mile zone.
And then the Australia Act 1986 was enacted, which also addressed the issue of
extraterritoriality. See s 2(1) of the Australia Act 1986:
“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.”
This prompted academic debate as to whether this made all extraterritorial laws
valid, or whether it merely restated the connection test.
Connection test post-1986:
Union Steamship Co of Australia Ltd v King
oThe issue was whether the Workers Compensation Act 1926 (NSW)
applied at sea on a ship registered in New South Wales.
oHeld, in a unanimous joint judgment, endorsing the comments of Gibbs J
in Pearce, that the registration of the ship was a sufficient connection.
On the Australia Act, stated “may do no more than recognise what
has already been achieved in the course of judicial decisions”.
Port MacDonnell Professional Fishermen’s Association v South Australia
oA Commonwealth-State agreement under Coastal Waters (State Powers)
Act 1980 regulated the taking of rock lobsters in an area extending out to
the edge of the continental shelf.
oHeld, the law was valid by applying the connection test – the fishery had a
real and substantial connection with South Australia, economic and
geographical.
Also, held that that the law was authorised by Coastal Waters
(State Powers) Act 1980, and that was valid under s 51(xxxviii) of
the Constitution.
Lipohar v R
oThe defendant was charged in South Australia with fraud. All the actions took
place outside South Australia but the victim company had a registered office
in South Australia, and was an indirect subsidiary of the South Australia
SGIC.
oHeld, there was a sufficient connection - the victim was incorporated in South
Australia, communications sent to South Australia, real consequences for the
South Australia body politic.
Brownlie v SPCC
oPesticide applied by the defendants to their property on the Queensland side
of the Barwon River washed into the river and was detected on the New
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Description
Extraterritoriality Introduction Extraterritoriality refers to laws which say they apply outside of the territory of the jurisdiction that has enacted them. o Remember the external affairs power in s 51(xxix) for Commonwealth laws. Generally, laws are drafted without reference to place of jurisdiction, but there is a presumption of statutory interpretation that laws are only intended to apply in the Parliaments territory. o See, for example, Morgan v White (1912) 15 CLR 1 New South Wales Bankruptcy Act 1898 provided that discharge could be refused where the bankrupt had previously been bankrupt. Held, that it wasnt meant to apply to someone who had previously been bankrupt in Western Australia. The relevant question is where Act makes its intention to apply outside jurisdiction clear, does the Parliament have power? The Imperial Background The UK Parliament always assumed it had power to make laws with overseas effect (where the intent to do so was clear). o For example, all the laws about the colonies. o Enforcement would be a problem if the parties were overseas, but not if the parties were in the jurisdiction. But as to the colonies, the power to make extraterritorial laws was not as clear. o MacLeod v Attorney-General [1891] AC 455 Held, that colonies had no extraterritorial power. o Ashbury v Ellis [1893] AC 339 and Croft v Dunphy [1933] AC 156 Held, that colonies can make extraterritorial laws where they have a connection with the colony. Application to the States There are two questions to be considered: 1. where are the boundaries? 2. what is the scope of extraterritorial power? 1. What are the boundaries? Land boundaries: o In general, the land boundaries are defined in the various Imperial documents separating the other colonies from New South Wales. Sea boundaries: o The colonial descriptions generally start and/or stop at the coastline. However, the colonies had assumed that they had sovereignty over the three- mile zone that was traditionally recognised as the territorial sea at international law, and the drafters of the Constitution seemed to have assumed this when they gave the Commonwealth the power in s 51(x) over fisheries in Australian waters beyond territorial limits. o When the Commonwealth Parliament enacted the Seas and Submerged Lands Act 1973 to give effect to the Convention on the Territorial Sea and Contiguous Zone and the Convention on the Continental Shelf, it not only asserted the right, newly recognised in international law, to control the continental shelf but also assumed that it had power over the sea and submerged lands back inshore, to the low-water mark or to the closing line joining the headlands at the opposite sides of the bays and the mouths of rivers. New South Wales v Commonwealth (the Seas and Submerged Land Acts case) o Held, the outer boundaries of the states were indeed the low water marks or the closing lines. 2. Scope of extraterritorial power Connection test: Broken Hill South Ltd v Commissioner of Taxation Held, that New South Wales could impose income tax on money received as interest on a mortgage on property in New South Wales even if the taxpayer was not a New South Wales resident. Dixon J set out the connection test: The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen. [emphasis added] Connection test confirmed in the 1970s: Pearce v Florenca o The defendant was charged under a Western Australia law with catching undersized fish in three-mile zone off Western Australia. (This was after the Seas and Submerged Land Acts case, so the three-mile zone was not regarded as part of Western Australia any more.) o Held, that the law had a sufficient connection with Western Australia. o Gibbs J confirmed the connection test and said that in the public interest the test should be liberally applied, and that law should be held valid if there is even a remote or general connection between the subject matter and the State. Raptis v South Australia (1977) 138 CLR 346 o Held, the Fisheries Act 1971 (SA) was prima facie valid in the waters of Investigator Strait, well outside the three-mile limit as there was still an economic and geographic connection with South Australia. (Although the law was inconsistent with the Commonwealth Fisheries Act 1952, so the state Act was unenforceable for that reason.) The Off-Shore Settlement: In 1980, the Commonwealth enacted by request of the States under s 51(xxxviii) the Coastal Waters (State Powers) Act 1980 and the Coastal Waters (State Title) Act 1980. The Acts provided: o that States could exercise powers and hold title in the three-mile strip as if it was the territory of a State; o that States could exercise power over sea-floor works, etc, in adjacent area even beyond three-mile strip; o for joint control of offshore fisheries by Commonwealth-State agreements; o for exceptions for Great Barrier Reef Marine Park. Following the Off-Shore Settlement, the legal position was: State laws now valid (if not inconsistent with a Commonwealth law) within the three-mile strip simply under the Coastal Waters (State Powers) Act 1980. the connection test only needed outside three-mile zone. And then the Australia Act 1986 was enacted, which also addressed the issue of extraterritoriality. See s 2(1) of the Australia Act 1986: 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. This prompted academic debate as to whether this made all extraterritorial laws valid, or whether it merely restated the connection test. Connection test post-1986: Union Steamship Co of Australia Ltd v King o The issue was whether the Workers Compensation Act 1926 (NSW) applied at sea on a ship registered in New South Wales. o Held, in a unanimous joi
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