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

With reference to his memorandum of 11.5.22⁽¹⁾, relative to the above-mentioned subject, the Secretary is informed that unless section 1 of the Imperial Act of 1921 referred to can be given application in the Commonwealth the remainder of that Act will be of little if any value.

With reference to the Secretary's suggestion, in paragraph 4 of his memorandum, that it is not competent for the Commonwealth to pass legislation to apply that section to the Commonwealth, it is suggested that possibly section 735 of the Merchant Shipping Act 1894 could be read as giving the necessary power in that regard. The power of repeal given by that section would include, it is suggested, the power to amend or modify. The application of the Imperial Act of 1921 within the Commonwealth could perhaps be brought within the scope of the enabling power conferred by section 735 by limiting such application to ships registered in Australia.

In this connection, it may be pointed out that in the various Orders of His Majesty in Council declaring his assent to the Navigation Bills of 1912, 1919 and 1920, section 735 is cited in the preamble as, apparently, the source or one of the sources of the legislative power of the Commonwealth Government in passing those Bills.

It is requested that the Secretary will be so good as to give the matter further consideration, and, if he concurs in the suggestion submitted above, that he will submit a draft amendment of the Navigation Act to give effect thereto.

Should the draft follow the lines of the draft Bill submitted with the Secretary's memorandum of 11.5.22 above-mentioned (copy attached) it is suggested that the power conferred on the Board of Trade under sub-section (3) of section 1 of the Imperial Act be not transferred to the Minister, but left unimpaired, as it is thought possible that any interference in this direction might be objected to by the Imperial authorities and possibly interfere with the granting of assent to the amending Bill.

Section 1 of the Merchant Shipping Act 1921 amends Parts I and VIII of the Merchant Shipping Act 1894 by extending the meaning of the expression 'ship' to include 'every description of lighter barge or like vessel used in navigation in Great Britain'.

Part I of the British Act deals with registry and is expressed to apply to the whole of His Majesty's Dominions.

Section 735 of the Act of 1894 provides that the legislature of any British possession may by any Act or Ordinance confirmed by Her Majesty in Council repeal wholly or in part any provisions of the Merchant Shipping Act 1894 relating to ships registered in that possession. The proposal to apply the amendment made in Part I to the Commonwealth involves an amendment of the provisions of the British Act in regard to ships not registered in the Commonwealth under that Act. In my opinion it is not competent for the Commonwealth Parliament to enact effectual legislation bringing vessels within the purview of the registration provisions of the British Act to which those provisions do not themselves apply.

The effect of the amendment of Part VIII is to extend the limitation of liability of shipowners to ships other than those previously covered by that Part. So far as lighters, barges and like vessels engaged in navigation in the Commonwealth are concerned, there is at present no Commonwealth law limiting the liability of shipowners, and a Commonwealth law limiting liability in respect of those ships would not be in conflict with Part VIII of the British Act. The passing of such a law is, in my opinion, within the powers of the Commonwealth Parliament.

[Vol.18, p.404]

(1)Opinion No.1214.