Opinion Number. 1052

Subject

NAVIGATION AND SHIPPING WHETHER COMMONWEALTH HAS POWER TO PRESCRIBE LIFE-SAVING APPLIANCES TO BE CARRIED ON SHIPS ENGAGED IN INTRA-STATE SHIPPING

Key Legislation

CONSTITUTION, ss. 51 (i), (xxxix), 98: NAVIGATION ACT 1912, s. 215

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has forwarded me the following minute for advice on the question raised therein:

In the draft Regulations under the Navigation Act relating to the life-saving appliances to be carried by ships, prepared by the late Director (Captain D.P. Davies), provision is made in regard to, among other things, the following classes of ships: Limited Coast-trade and River and Bay. [Table listing particulars of classes VI-XII omitted.]

  1. With the single exception, probably, of vessels engaged in the River Murray trade, the ships embraced in these classes would almost invariably be engaged in trading exclusively within the limits of a single State.
  2. It is very doubtful, to my mind, whether under the Constitution there is any power to prescribe life-saving appliances to be carried on any ships which are not engaged in trading to other countries or among the States.
  3. The opinion has been given by the Solicitor-General(1), in regard to the application of sections 135 and 136 of the Navigation Act to ferry boats plying in Sydney Harbour, that it is competent for the Commonwealth to enact legislation to secure the efficiency of intra-State shipping using highways common to inter-State and foreign-going vessels, that legislation requiring suitable accommodation to be provided for seamen on intra-State vessels makes for such efficiency, and that consequently the application of sections 135 and 136 to intra-State shipping is within the legislative power of the Commonwealth.
  4. The supply of life-saving equipment is not, however, on the same footing, in this connection, as the provision of suitable sleeping accommodation. Insanitary quarters would undoubtedly tend to impair the health of a seaman, and consequently to lower his efficiency. A man, for instance, who was berthed in a badly ventilated forecastle
  5. might conceivably be drowsy whilst on watch, and maintain a much less efficient look-out than a man berthed in well ventilated and otherwise sanitary quarters.

  6. The question, however, as to whether the life-saving appliances on a ship were or were not adequate, whilst it might cause the seamen some slight degree of anxiety, would not, I think, in ordinary circumstances in any way operate to impair their efficiency as seamen. As you are aware, sailormen take surprisingly little interest in the boats, belts, and other life-saving equipment carried on their ship.
  7. As the preparation of the Regulations cannot well be proceeded with until the question is settled, it is suggested that the matter be referred to the Attorney-General's Department for favour of advice.

Provisions for ensuring the supply to intra-State vessels of life-saving appliances do not perhaps make for the efficient navigation and working of the vessels to the same extent as compliance with some of the other provisions of the Act.

The state of mind of the crew is however not the only factor to be considered in this connection. The absence of life-saving appliances might well, in critical circumstances, impede the efficient handling of a vessel and render her a menace to other vessels using the same waters.

I therefore incline to the opinion that the validity of the regulations in question is supported by considerations similar to those expressed in my opinion above referred to.

[Vol. 17,p. 268]

(1)Opinion No. 981.

(2)This Opinion is unsigned in the Opinion Book, but it is attributed to Sir Robert Garran.