Opinion No. 229
NAVIGATION AND SHIPPING
SOURCES AND EXTENT OF COMMONWEALTH POWER : EXTENT OF POWER TO MAKE LAWS FOR PEACE. ORDER, AND GOOD GOVERNMENT OF COMMONWEALTH : POWERS OF BRITISH COLONIES GENERALLY : EFFECT OF IMPERIAL STATUTE ON COMMONWEALTH POWER : REPUGNANCY : EXTRATERRITORIALITY : INTERPRETATION OF CONSOLIDATING STATUTE
CONSTITUTION, ss.5I, 51 (i). 98 : COLONIAL LAWS VALIDITY ACT 1865 (IMP.) : MERCHANT SHIPPING ACT 1894 (IMP.). Parts I. II, III, V, VI, VIII, XI, XIII, XIV; ss. 264, 478. 713, 721, 735, 736
15 January 1906
The Chairman, Royal Commission on the Navigation Bill
The Royal Commission on the Navigation Bill has forwarded, for consideration and reply, a memorandum by Mr R. E. Cunliffe, Solicitor to the Board of Trade, dated 14 October 1904(1), and has requested me to amplify the evidence(2) already given on the legal standing and powers of the Commonwealth in regard to navigation and shipping.
- The occasion of Mr Cunliffe's memorandum is the New Zealand Shipping and Seamen Act 1903; but it deals with the powers of colonial legislatures generally in relation to merchant shipping.
- Mr Cunliffe is impressed with the importance of preserving uniformity throughout the Empire in respect of such legislation. He deals with the question as one of policy as well as of law; and his attitude on the question of policy appears to lead him to a much narrower view of colonial legislative powers than can, in my opinion, be supported.
- In this memorandum, I deal solely with the question of law, which is the only question referred to me. The subject has two main branches:
- The positive legislative power of colonial legislatures generally, and of the Commonwealth Parliament in particular, with regard to navigation and shipping, apart from fhe Merchant Shipping Act 1894; and
- The extent to which that power is enlarged or restricted by the provisions of the Merchant Shipping Act.
- A colonial legislature has power to make laws for the 'peace, order, and good government' of the colony-either generally (in the case of a colony with a unitary constitution) or with regard to specific subjects (in the case of a colony with a Federal constitution). The Commonwealth Parliament, in particular, has power to make laws for the peace, order, and good government of the Commonwealth with respect to (inter alia) 'navigation and shipping'.
- This legislative power has two limitations. The first is sometimes expressed to be that colonial laws-except where exterritorial operation is expressly given to them by the Imperial Parliament-only operate within the territorial limits of the colony. This limitation is, however, nowhere expressed in any colonial constitution. It appears to me that there may be cases in which it is necessary for the peace, order, and good government of a colony that it should be able to pass a law to operate exterritorially; and that the grant by the Imperial Parliament of plenary legislative power for the purpose of such peace, order, and good government is wide enough to sanction exterritorialoperation in such cases. While admitting that the cases in which the necessity arises, and in which, therefore, the exterritorial operation can be conceded, are probably rare, I would prefer to state the first limitation in the words of the constitutional grant- namely, that the operation of the laws of a colony is limited to the purposes of the peace, order, and good government of the colony.
- The second limitation is that a colonial law, which is repugnant to an Imperial Act which by express words or necessary intendment is applicable to the colony-or repugnant to any order or regulation under any such Act-is, to the extent of such repugnancy, but not otherwise, void (Colonial Laws Validity Act). To create the invalidity, it is not enough that the Imperial law and the colonial law both deal with the same matter, and deal with it differently; they must be actually repugnant one to the other-inconsistent one with the other. The colonial law may go further than the Imperial law-may require compliance with further or more stringent conditions, but it is not therefore necessarily repugnant. Moreover, it is not enough that the Imperial Act is worded so generally that it is capable of being construed to extend to the colony, or that it is not in express words limited to the United Kingdom. The application to the colony must be either by express words or by necessary intendment-i.e. it must be incapable of being construed as not extending to the colony.
- Subject to these two limitations the legislative power of a colony with respect to navigation and shipping-as with respect to other subjects-is plenary.
- It is necessary to emphasize this positive legislative power because it appears to me that in the memorandum under discussion it is largely overlooked, and it is assumed that colonial legislative powers with respect to navigation and shipping depend, wholly or chiefly, on certain express provisions of the Merchant Shipping Act 1894-e.g. sections 735 and 736.
- Mr Cunliffe, in his opening remarks, states that sections 735 and 736 of the Merchant Shipping Act 1894, together with section 713, make it clear 'that from a general point of view the Imperial Act does not contemplate that a colony shall, as regards the matters dealt with by the Act, do more than legislate (by way of specific repeal with an implied or recognised power of new enactment) for ships registered in its possession, or regulate its own coasting trade'.
- From these remarks, as I understand them, I entirely dissent. Sections 735 and 736 are affirmative, not negative; they confer certain specific legislative powers upon colonial legislatures, but certainly cannot be construed as depriving those legislatures of all or any powers not mentioned.
- Section 735 confers a very special legislative power. It empowers a colonial legislature to repeal as regards the colony, provisions of the Imperial Act which extend to the colony. That is a power which, apart from this provision, no colonial legislature would have. To construe the grant as limiting in any way the antecedent powers of colonial legislatures in regard to shipping generally is opposed to all canons of interpretation.
- As to section 736, it is not easy to discover either its exact purpose or its exact effect; though its history, so far as it appears on the statute-book, affords some guidance. It is a re-enactment of section 4 of the Merchant Shipping (Colonial) Act 1869, which repealed sections 163 and 328 of the Customs Consolidation Act 1853. The Act of 1853 embodied the protective policy of the old navigation laws. Section 152 restricted the coasting trade of the United Kingdom to British ships. Section 163 did the same with respect to the coasting trade of any British possession in Asia, Africa, or America; though section 328 enabled the Queen to relax this provision with respect to any colonies upon an address from their legislatures. The coasting trade of the United Kingdom was thrown open to the world in 1854; but the restriction as to the colonies appears to have remained in force until the passing of the above-mentioned Act of 1869. From the terms in which sections 163 and 328 of the Act of 1853 were repealed by the Act of 1869, it appears that the main object of the new substantive provision was to enable the colonies to legislate directly as to the vessels in which their coasting trade should be carried on. It was clearly intended to be an enabling, not a restrictive clause; to grant to the colonies (subject to conditions) certain new powers of legislation, but not to take away any existing powers. At the same time, it is not easy to see what new powers it conferred. Even>before 1869, a colony, in virtue of its general legislative power, could make laws to 'regulate its coasting trade', provided that such laws were not repugnant to any Imperial Act extending to the colony. The repeal of section 163 of the Act of 1853 extended the powers of colonial legislatures by removing a direct statutory prohibition. But how does the substantive enactment extend their powers? It can hardly be contended that it enables a colony to pass laws repugnant to an Imperial Act extending to the colony. It may perhaps be argued (as was suggested by the Imperial Crown Law Officers during the discussion in England of the Commonwealth Constitution Bill-see Quick & Garran, p. 362) that it gives an exterritorial operation to the laws of a colony; but this is not expressed. However, the section was re-enacted verbatim in the Act of 1894. If it is hard to see what it adds to the powers of colonial legislatures, it is at least impossible to regard it as taking anything away. It is affirmative in form and in apparent intention; and it cannot be supposed that in the guise of a gift of power the Imperial Parliament intended to make a sweeping inroad upon the legislative powers of the whole of the self-governing colonies of the Empire.
- The Merchant Shipping Act 1894 is not expressed to extend, as a whole, to the whole of the King's Dominions. Certain Parts of it are expressed so to extend (e.g. Parts I, VIII, XIII). Certain other Parts are given a limited and specified application beyond the United Kingdom, whilst other Parts contain no general application clauses at all. Mr Cunliffe, in his remarks as to the application of the several Parts of the Act, appears to infer, merely from the absence of limiting words in particular sections, that those sections were intended to apply throughout the British Dominions. Such an inference-if it is meant that the sections in question extend to the colonies within the meaning of the Colonial Laws Validity Act-appears to me to be forbidden by the clear terms of that Act. I propose to deal in order with his remarks as to the application of the several Parts.
- As to Part I, Mr Cunliffe shows that this Part is almost wholly of Imperial application. It may be mentioned that the Commonwealth Bill does not deal (except in clause 417) with any of the matters covered in this Part.
- As to Part II, Mr Cunliffe draws from section 264 an inference in derogation of colonial legislative powers, which appears to me quite untenable. He says, in effect, that section 264 empowers the legislature of a British possession to apply to British ships registered at, trading with, or being at any port in the possession, any provisions of Part II (only) which do not otherwise so apply; and he suggests that the section impliedly limits the powers of colonial legislatures to exercising the powers specified, or at
least that it is 'a restricting rather than an enabling power'. But Mr Cunliffe does not quite accurately state the purport of the section; it does not empower colonial legislatures to legislate in the direction mentioned, but declares that if such legislature does so, the law shall have effect throughout the British Dominions as if enacted in the Imperial Act. This is obviously an enabling provision; it enables a colonial legislature, in effect, to pass an Imperial law. No inference whatever can be drawn to restrict its power to pass colonial laws. And, apart altogether from these considerations, it is submitted that the legislative powers of self-governing colonies cannot be whittled away, as suggested, by vague 'inferences' and 'implications'. That is a state of affairs which was ended, once and for all, by the Colonial Laws Validity Act.
- As to Part III, I do not altogether agree with Mr Cunliffe if he means that, where the provisions of the Part extend to a colony, the colonial legislature cannot impose upon the owners of British ships any further statutory obligations in addition to the obligations imposed by the Imperial Act. It cannot impose any inconsistent obligations, but that is a very different proposition.
- As to Part V, Mr Cunliffe thinks that certain provisions 'on the whole . . . may be regarded as world-wide', or 'appear to be general'. In the absence of 'express words or necessary intendment', I see no reason to doubt the powers of colonial legislatures to make different provision.
- As to Part VI, I do not see how the power conferred upon colonial legislatures by section 478 can govern the application of the rest of the Part to the colonies.
- As to Part XI (Lighthouses), Mr Cunliffe argues-from the provisions enabling 'colonial light dues' to be levied in certain cases-that 'any colonial legislation which goes beyond the above-mentioned provisions of the Imperial Act would be ultra vires'. This would appear to mean that a colony which erected a lighthouse would be entirely dependent upon the King in Council and the Board of Trade for the imposition, collection, and application of light dues. I can see nothing whatever in the Imperial Act to support a contention which appears to me to involve an extraordinary inroad upon colonial powers of self-government.
- As to Part XIV, section 713 is referred to as being apparently of general application. It provides that the Board of Trade shall superintend 'all matters relating to merchant shipping and seamen', and execute the provisions 'of this Act and of all Acts relating to merchant shipping and seamen'. Mr Cunliffe alludes in various passages to this section as supporting his views of the restricted power of colonial legislatures, and appears to think that it gives the Board of Trade authority in the colonies apart from Imperial legislation, expressly extending to the colonies. With this view-if it is really held-I am unable to agree.
- Mr Cunliffe thinks that section 721 (exempting from stamp duty certain instruments under the Act) is of general application. It appears to me that this section is merely an exemption from duties imposed by the Imperial Parliament, and that there are no express words or necessary intendment which justify its being construed to fetter revenue laws passed by colonial legislatures.
- With regard to the application of the several Parts of the Imperial Act to the British Dominions generally, it appears to me that the fact of some of the Parts containing a general application clause raises a strong presumption against the general application of those Parts in which no such application clause is found, and makes the necessity for 'necessary intendment' specially strong to support a general application of any sections in those Parts. No such necessary intendment can be gathered from the
(A) THE POSITIVE LEGISLATIVE POWER
(B) THE EFFECT OF THE MERCHANT SHIPPING ACT 1894 UPON COLONIAL LEGISLATIVE POWERS
fact that some sections are expressly limited to the United Kingdom, while others are not so limited. The Imperial Act of 1894 is a consolidation of laws ranging over a long period, and drawn by many hands-both before and after the passing of the Colonial Laws Validity Act 1865; and though much has been done in the way of harmonizing them, the Act bears many traces of the different sources from which it was compiled. Inferences drawn from variations of language in different sections are therefore peculiarly untrustworthy. In considering whether a particular section-in a Part which does not contain a general application clause-is of general application or not, the only safe course is to look for the 'necessary intendment' in that section itself. If it cannot be found there, then, in my opinion, no amount of inference and no considerations of the desirability of uniformity should influence the determination of the purely legal question, whether the section extends to the colonies, within the meaning of the Colonial Laws Validity Act, so as to invalidate enactments of a colonial legislature, which are inconsistent with it.(3)
(1) Published in Commonwealth of Australia, Parl. Papers I905, Vol. II, p. 1336.
(2) See Opinion No. 211.
(3) This opinion is not in the Opinion Books but was published in Commonwealth of Australia, Parl. Papers1906, Vol. III, p. 80 (Appendix E to Report of Royal Commission on the Navigation Bill, 1906).