The Comptroller-General of Customs has forwarded me the following memorandum for advice:

It is proposed to take over from the State Governments, on 1 February next, the control of the Mercantile Marine Offices at the various ports in Australia. On the date mentioned, the provisions of the Navigation Act regarding, inter alia, the engagement and discharge of seamen, will come into operation, superseding the provisions of the Merchant Shipping Act or of local State Acts in that regard at present operative.

In connection with a recent inspection of the work of the Mercantile Marine Offices, it came under notice that in two States the engagement and the discharge of seamen were subject to stamp duty under the local State Stamps Act, stamps to the prescribed value being affixed to the Articles of Agreement on each occasion when a seaman was engaged or discharged, and cancelled by perforation with a hand punch.

Under the Navigation Act it is required that the masters of certain ships, when engaging any seaman, shall enter into an agreement with him in the prescribed form in the presence of the superintendent (section 46). Similarly, seamen are to be discharged (section 61) in the presence of a superintendent.

It is considered, in the light of the High Court judgment in the case of D'Emden v. Pedder 1 C.L.R. 91, that the imposition of a stamp duty by a State on the engagement and discharge of seamen before a superintendent would be an interference with the free exercise of the legislative and executive powers of the Commonwealth, and that the provisions of any State Act requiring the payment of duties in such cases would be invalid and inoperative.

In order that superintendents of Mercantile Marine Offices may be suitably instructed, it is requested that the Solicitor-General will be good enough to advise me in the matter at his earliest convenience.

Section 46 of the Navigation Act 1912-1920 provides that the master of a ship who engages a seaman in Australia shall enter into an agreement with him in the prescribed form.

If the master carries a seaman without having entered into an agreement the master is guilty of an offence.

Section 61 of the Act provides that when a seaman is discharged from a ship the master shall sign and give the seaman in the presence of a superintendent a discharge in the prescribed form. Failure on the part of the master is an offence.

Any State Act making it an offence for the master of a ship to enter into an agreement or to give a certificate of discharge without paying stamp duty thereon is, in my opinion, inconsistent with the provisions of the Navigation Act above quoted, and, by virtue of section 109 of the Constitution, invalid to that extent (Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd 28 C.L.R. 129 at p. 156).

[Vol. 18, p. 299]