Introduction

All State parliaments are restricted in their capacity to legislate extraterritorially. They may do so only when a sufficient connection or nexus exists between the State and the extraterritorial effect of the law. The modern justification for this restriction is the practical necessity to avoid jurisdictional clashes between the States, given the absence of any equivalent to s 109 of the Commonwealth Constitution. The ACT, Northern Territory and Norfolk Island legislatures are subject to the same extraterritorial restriction as State parliaments.

Although following the enactment of s 2(1) of the Australia Acts 1986, the continued existence of this extraterritorial limitation was debated, the High Court has clearly indicated that the Australia Acts have not removed this limitation. Specific issues still to be resolved include: how tenuous the nexus can be; what safeguards are there against unjustified burdens being imposed on the residents of other States, especially in the fields of taxation and criminal law; and how inconsistencies between State laws are to be resolved.

Before addressing these issues, consideration is given to the boundaries of each State and territory, including the constitutional arrangements between the Commonwealth and the States in relation to the waters surrounding the States. The concept of extraterritoriality and the legal foundation for the extraterritorial restriction are then considered, before examining the extent to which the States and the territories can legislate extraterritorially (that is, the ‘sufficient connection’ or ‘nexus’ test).