NAVIGATION AND SHIPPING DETERMINING LIMITS OF PORTS FOR PURPOSE OF DEFINITION OF RIVER AND BAY SHIP: WHETHER STATE BOUNDARIES MAY BE ADOPTED: POWER TO PRESCRIBE LIMITS: PORT OF MARYBOROUGH
NAVIGATION ACT 1912, s. 6
The Comptroller-General of Customs has forwarded me the following minute with a request for advice:
In connection with the Solicitor-General's opinion of 15.1.1921 on the abovementioned subject, the following points are submitted for favour of further advice.
- Following on the advice contained in the Solicitor-General's opinion above mentioned, it is proposed to define by Regulation the limits of the principal ports of the Commonwealth, following as far as possible the existing limits as fixed by or under the laws of the several States.
- Ports, as defined under the State laws, almost invariably include any navigable river upon which the port town may be situated, but frequently take in only a portion of some adjacent bay or other portion of the sea. An example of this occurs in connection with the port of Maryborough, Queensland. The township itself is situated on the Mary River, a short distance from its mouth. The River empties into a narrow channel between Great Sandy Island and the mainland. The channel at its northern end opens into Hervey Bay, and at its southern end into the Pacific Ocean. The Port of Maryborough, as defined under the State law, includes the navigable portion of the Mary River, the channel referred to, and a portion only of Hervey Bay. (See rough sketch attached.) In this particular instance it is desired to adopt the State boundaries of the Port of Maryborough, and to fix those boundaries as the limits within which river and bay ships may trade. The question arises, however, as to whether, seeing that 'river and bay ship' is defined in section 6 as including every ship which trades exclusively within the limits of any port, bay or river, etc., and that the geographical limits of Hervey Bay extend some distance seaward beyond the limits of the port as defined, there is power to do this. Apparently, in view of the Solicitor-General's opinion that in the absence of definitions in the Act the terms 'bay' and 'gulf must be given their usual geographical meaning, there is no option but to permit river and bay ships to trade anywhere within the geographical limits of Hervey Bay.
- I shall be glad if the Solicitor-General will be so good as to favour me with an opinion in the matter as early as possible.
As stated in my opinion of 15 January 1921(1), there is no power under the Navigation Act to determine by regulation what waters are ports bays or gulfs. I note that it is proposed to define the limits of the port of Maryborough taking as a basis the limits fixed under State law. The seaward boundary of the port proposed to be adopted is the parallel of latitude 25°7' south, which includes a portion of Hervey Bay.
The fact that the definition of 'port' includes 'place and harbour' does not I think authorise the extension of the area of any particular port to include waters not within the limits to which the term may, in its ordinary meaning, be applied.
Any regulation setting out the limits of a port bay or gulf is of a declaratory nature only and cannot fix limits other than those applicable to the port, bay or gulf according to the geographical meaning of those terms.
The fact that the proposed limits are those fixed under State law does not authorise the determination by regulation under the Navigation Act of limits of an artificial nature.
With regard to the question whether, assuming that the limits of the Port of Maryborough can be, and are, fixed as those shown in the plan, river and bay ships may be restricted to trading within those limits, I am of opinion that by the terms of the definition of 'river and bay ships' such vessels can, notwithstanding the fixing of the limits of the port, claim the right to trade anywhere within the area of Hervey Bay.
[Vol. 17, p. 284]
(1)Opinion No. 1038; the opinion was given by Sir Robert Garran as Solicitor-General.