Opinion Number. 1038



Key Legislation

CUSTOMS ACT 1901, ss. 4, 15: NAVIGATION ACT 1912, s. 6

The Comptroller-General of Customs

The Acting Comptroller-General of Customs has submitted the following memorandum to me for advice:

  1. The Navigation Act, as recently amended, defines 'river and bay ship' as follows:
  2. 'River and bay ship' includes every ship which trades exclusively within the limits of any port, bay, or river, or within prescribed limits in any gulf or gulfs, within the Commonwealth, including a Territory being part of the Commonwealth and also includes any ship or class of ships, specified by the Minister by notice in the Gazette, which trades exclusively within the limits of a specified port, bay or river and within a radius of three nautical miles seaward from the entrance of the port, bay or river.

  3. A question has arisen as to the interpretation of this definition. The Chief Harbourmaster, Fremantle, inquires whether, in relation to 'ports' the limits prescribed by State Acts will be accepted, or whether the limits will be those fixed under the Customs Act.
  4. In looking into the matter further questions have suggested themselves to me, which I am unable to answer. These are, firstly, what waters are included in the term 'bay', and secondly, if this term is to be interpreted in the ordinary geographical sense as meaning a 'part of the sea filling a wide-mouthed opening of the land' (Oxford Dictionary), and consequently including the hundreds of open bays around the coast of Australia, how are the 'limits' of such waters to be defined? Furthermore, was it ever intended, and is it desirable, that vessels trading in these practically open waters should be classified as 'river and bay ships'?
  5. Apparently it will be quite impossible to accept the name applied to any particular sheet of water as conclusive evidence of its real character. Take, for example, Port Phillip Bay and Port Jackson, in this particular connection the two most important sheets of water to be considered. The first of these, Port Phillip Bay, is, in my opinion, neither a port nor a bay, but rather, in a geographical sense, a gulf. The term 'port', in its general acceptation, is a town or place having a harbour, providing shelter for ships and facilities for loading and landing cargo, more especially a sea-coast place where Customs Officers are stationed. Port Phillip includes two ports, properly so called, viz. Melbourne and Geelong, but cannot be in itself regarded as a port, in the proper sense of the word. As to whether it may properly be called a bay, it is pointed out that a bay is a wide-mouthed opening of the land, which Port Phillip Bay is not. A gulf, on the other hand, is defined as meaning, geographically, a portion of the sea, proportionately narrower at the mouth than a bay, partly surrounded by coast. As between the terms 'bay' and 'gulf, Port Phillip Bay certainly comes under the latter heading.
  6. The same remarks apply, to a great extent, to Port Jackson. This sheet of water includes the port of Sydney, but is not itself, properly speaking, a port. Neither is it a bay. Apparently from a geographical point of view it is a gulf or, preferably, an inlet, which term is defined as meaning a small arm of the sea.
  7. The difficulties in interpreting the definition of 'river and bay ship' are further increased by the definition 'port', as set out in section 6 of the Act. The definitions of 'port' and 'harbour' (which latter term is defined as included in the term 'port') are as follows:
  8. 'Port' includes place [and harbour]:

    'Harbour' [means and] includes harbours properly so called whether natural or artificial, estuaries, navigable rivers, piers, jetties, and other works in or at which ships can obtain shelter or ship and unship goods or passengers, [and haven, roadstead, channel or creek].

    These definitions were taken originally from the Merchant Shipping Act 1894, but a radical alteration in the scope of the terms was made by the introduction of the words included above in square brackets. In his explanatory notes of the draft of the 1904 Navigation Bill, Dr Wollaston(1) remarked, in regard to these definitions: 'Same as M.S.A. with addition of words in brackets necessary'.

  9. From these definitions it will be seen that the term 'port' is given the widest possible meaning, and includes not only enclosed or semi-enclosed navigable waters, but also havens and roadsteads. The first mentioned of these latter terms is of indefinite meaning, but is usually understood as applying to not only partly enclosed waters, but also to certain open waters, e.g. under the lee of an island or a promontory, in which a ship may refuge from a storm. 'Roadstead' is a term applied to a piece of water near the shore and usually, but not always, off some town or place which does not possess adequate harbour facilities, in which ships may anchor and transfer goods and passengers to and from the shore by means of tenders or lighters. An example of this is the roadstead in Cleveland Bay, off Townsville.
  10. It is difficult to see any necessity for the alteration made in the definition of 'port', or for the inclusion at all of the definition of 'harbour'. The latter definition is necessary in the Merchant Shipping Act because that Act deals with harbour authorities, their powers and liabilities etc. (hence also the reference to 'piers, jetties, and other works') but so far as I am aware the term 'harbour' is never once mentioned in the body of the Navigation Act. One, and apparently the only, result of the alteration has been to make the interpretation of the definition of river and bay ship so obscure and difficult as to render the administration of the provisions relating to such ships extremely difficult, if not entirely impracticable.
  11. In regard to the specific question asked by the Chief Harbourmaster, Fremantle, as to whether the limits of 'ports' under the Navigation Act will be those prescribed by State Acts or the Customs Act, it may be pointed out that the limits of ports have, as a rule, been fixed under State Acts as having relation to the control of navigation, e.g. the limits within which certain masters' and officers' certificates of competency operate. Under the Customs Act, on the other hand, ports are 'established' and their limits fixed by proclamation (ss. 4 and 15) with regard only to the importation and exportation of goods. Consequently the limits under the State and Federal Acts very rarely coincide. Of the two, the limits fixed under the State law would, no doubt, be the more suitable for the purposes of the Navigation Act, but I can see no authority in the latter Act for accepting limits as fixed by the State Acts.
  12. There may be power to make regulations under the Navigation Act adopting the State limits, or for fixing entirely new limits for the purposes of the Act, but such power is not expressly given, and there is some doubt to my mind as to whether it may be taken as included in the general power to make regulations.
  13. In order that the position may be clarified, as a first step toward straightening out the difficulties that are involved, it is suggested that the file be referred to the Attorney-General's Department for favour of comment and for advice in particular in regard to the following points:
    1. Is the term 'port', as used in the definition of 'river and bay ship', to be interpreted strictly as defined in section 6 of the Navigation Act, or may it be read in its usual acceptation as mentioned in paragraph 4 above?
    2. As regards the terms 'bay' and 'gulf, as used in the definition of 'river and bay ship', must the name applied to any sheet of water, e.g. Port Phillip 'Bay', Spencer's 'Gulf, etc. be taken as conclusive evidence of its real geographical character?
    3. Are Port Phillip Bay and Port Jackson to be regarded as 'ports' (as defined in Act) 'bays' or 'gulfs'?
    4. Is any regard to be paid in the interpretation of the term 'port' and in fixing the limits of ports, to the provisions of State Acts or to proclamations under the Customs Act establishing ports and fixing their limits? and
    5. Is there power under the Navigation Act to make regulations
      1. specifically naming the waters that are to be deemed ports, bays and gulfs within the meaning of the definition of river and bay ships? and
      2. fixing, for the purposes of that definition, the limits of ports and bays?

With regard to the definition of 'port' in section 6, it will be seen that the definition is not exhaustive. Its effect is that the general meaning attaching to the word 'port' shall in the Act be extended so as to include 'place and harbour'.

The terms 'bay' and 'gulf do not necessarily attach to any area of water the name of which happens to include either of those terms. In the absence of definitions in the Act those terms must be given their usual geographical meaning.

In determining the limits of any particular port the Commonwealth is not bound to adopt the limits specified by or under any State enactment, especially if such limits are in conflict with the meaning of the 'port' as provided in the Navigation Act.

Where there is no such conflict it may be found convenient, in fixing the limits of a port for navigation purposes, to have regard to the limits (if any) fixed for that port under Commonwealth or State statutes.

With regard to the question contained in paragraph (c) I am of opinion that the area of water contained in Port Phillip Bay should be regarded as a gulf, and limits prescribed therein in accordance with the definition of 'river and bay ship'.

The area contained in Port Jackson is probably also a gulf but decision on this point is subject to the foregoing remarks as to the definition of 'port'.

In my opinion the question as to what waters are ports, bays, or gulfs cannot be determined by regulation. The ordinary meaning of those terms, subject to the definition in the case of 'ports', must be applied.

I think, however, that it would be consistent with the Act, to declare by regulation what limits are regarded as being those of any particular port or bay, provided that the limits so declared are in conformity with the meaning of the terms as applied to the localities dealt with.

[Vol. 17, p. 201]

(1) Comptroller-General of Customs 11 November 1901—16 January 1911.