Opinion Number. 1029



Key Legislation

CONSTITUTION, covering cl.5: NAVIGATION ACT 1912, ss. 1A, 6, 7

The Comptroller-General of Customs

The following minute has been submitted to me for advice:

The Pacific Phosphate Company desire to be informed as to whether vessels chartered by it and trading to-

  1. Ocean Island; and
  2. Nauru,

come within the scope of the Navigation Act.

  1. In the absence of particulars regarding these vessels the question is a rather difficult one to answer. Certain provisions of the Navigation Act, as, for example, those (with a few minor exceptions) relating to the supply, engagement, and discharge of seamen; to survey and inspection; and to the coasting trade, wrecks, salvage, and pilots and pilotage, apply to all British merchant ships (and in most cases to foreign ships also) whilst trading within Commonwealth limits.
  2. There are, again, certain provisions which apply to 'ships registered in Australia', quite irrespective of whether they trade exclusively within Commonwealth waters or to foreign ports. The following are a few of the principal provisions that so apply: sections 14 (scale of officers); 43 (scale of crew); 117 (scale of provisions); and 135 and 136 (accommodation for officers and crew).
  3. In this latter connection it may be mentioned that clause 6 of the amending Bill now before Parliament proposes to add a new section, (1A), as follows:
  4. 1A The provisions of this Act expressed to apply to ships registered in Australia shall, subject to sections two and three of this Act, also apply to, and be in force on, other British ships whose first port of clearance and whose port of destination are within the Commonwealth.

    Under this new provision ships registered in any part of the British Empire outside Australia will, if engaged in round voyages from Australia as headquarters, be subject to the same conditions as though they were owned and registered in Australia. British ships running in the phosphate trade between Australia and Ocean Island would, I think, come under section 1A, but on this point I cannot give a definite opinion.

  5. It is very possible, however, that what the Company really desires to know is whether those sections commonly known as the 'coasting-trade provisions' of the Act apply to the trade with the Islands named.
  6. As to Ocean Island, it can be stated that the trade between Australia and that spot is not within the coasting-trade limits.
  7. The same, I think, applies to the trade with Nauru, but of this I am not so certain. Under section 7 of the Navigation Act, as amended by the Act of 1919, the taking on board of passengers or cargo at any port in a State or Territory 'under the authority of the Commonwealth', to be carried to and landed or delivered at any other port in the same State or Territory or in any other State or other such territory, is to be deemed engagement in the coasting trade. 'Territory under the authority of the Commonwealth' is defined in section 6 as including any territory governed by the Commonwealth under a Mandate. From press reports I gather that Nauru is to be mandated by the League of Nations to Great Britain, Australia and New Zealand conjointly. If this is so it is very doubtful whether Nauru would, for the purposes of the Navigation Act, be regarded as a territory under the authority of the Commonwealth.
  8. It is suggested that a reply as per letter herewith be sent to the Pacific Phosphate Company, and that the file be then referred to the Attorney-General's Department for favour of advice on the following points:
    1. as to whether a British ship (not registered in Australia) employed on voyages between, say, Sydney and Ocean Island, carrying stores and provisions, etc. on the outward run and phosphates on the return, would come within the provisions of new section 1A of the Navigation Act; and
    2. as to whether under the Mandate to be granted in respect of that Island, Nauru will be a territory 'under the authority of the Commonwealth' within the meaning of the Navigation Act.

Section 1A applies the provisions of the Act to certain British ships 'whose first port of clearance and whose port of destination are within the Commonwealth'. The words above quoted are the same as those used in covering section 5 of the Constitution, which were the subject of judicial consideration in Clarke v. Union Steamship Co. 18 C.L.R. 142. In that case an attempt was made to show that a ship engaged in trade between Sydney and San Francisco was a ship whose first port of clearance and whose port of destination are within the Commonwealth. It was argued that the journey to San Francisco and back to Sydney was one voyage. This contention was, however, not agreed with by the Court. Griffith C.J. said:

In the present case the ship in question was engaged in trade between Sydney in New South Wales and San Francisco in the United States of America. On its arrival at the latter port the ship landed and discharged all its passengers and cargo, and took in fresh passengers and cargo for Sydney. It is contended for the appellant that, as it was intended when the ship left Sydney that it should ultimately return to that port, Sydney is the real port of destination. In my opinion this contention has no foundation. If accepted, it would in effect make the section apply to all ships of which an Australian port is the home port, in whatever part of the world they may for the time being be trading.

Applying Clarke's case to the question contained in paragraph (a) of the above minute, it appears that the journeys from Sydney to Ocean Island and from Ocean Island to Sydney are separate voyages. I am, therefore, of opinion that the ships in question are not covered by section 1A of the Bill.

As to the question contained in paragraph (b), I am of opinion that if Nauru be 'mandated by the League of Nations to Great Britain, Australia and New Zealand conjointly', it is none the less by reason of the Mandate being held jointly with other powers a 'territory governed by the Commonwealth under a Mandate'.

[Vol. 17, p.141]