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

Section 133 (1) of the Navigation Act provides: The owner or master of every-

1. foreign-going ship, or
2. Australian-trade ship on a voyage between consecutive ports of call which exceeds a prescribed distance,having one hundred persons or upwards on board shall cause to be carried as part of her complement, a duly qualified medical practitioner. Penalty: One hundred pounds.

2. Section 6 defines 'foreign-going ship' as including every ship (other than an Australian-trade ship) employed in trading or going between places in Australia and places beyond Australia; and 'Australian-trade ship' as including every ship (other than a limited coast-trade ship or river and bay ship) employed in trading or going between places in Australia, and every ship employed in trading between (a) Australi``a and (b) territories under the authority of the Commonwealth, New Zealand, or the islands of the Pacific.
3. Certain vessels ordinarily engaged in the foreign-going trade make, on occasions, voyages which are confined to the Australian coast, e.g. the s.s. Charon, Gorgon and Minderoo, usually running between Fremantle and Singapore via north-west ports, and having crews engaged upon Articles of Agreement for the foreign-going trade, on occasion make purely coastal trips from Fremantle to Derby and return.
4. I shall be glad to be advised as to whether such vessels should, for the purpose of section 133 (1), be regarded as a foreign-going or Australian-trade, and also whether, as a general rule, the character of a vessel, whether foreign-going or Australian-trade, is determined by the nature of the voyage in which the vessel is at the time engaged. In this connection reference is invited to your opinions in regard to the application of the Navigation Act to vessels engaged at one time in the inter-State and at another time in the intra-State trade⁽¹⁾, and as regards the commencement and termination of engagement of a ship in the coasting trade⁽²⁾; also to the judgment of the High Court in the Merchant Service Guild of Australasia v. Commonwealth Steamship Owners Association 16 C.L.R.664, from which latter it would appear that, in determining the nature of any particular voyage of a ship, regard is to be paid to the intention at the commencement of that voyage, and that the ship's papers are not conclusive as to what the voyage is.

The question whether a ship is required to comply with sub-section (1) of section 133 of the Navigation Act depends upon the nature of the trade upon which she is engaged at the time the question arises.

If the ship is engaged upon a coastal voyage of less than the prescribed distance between Australian ports, prima facie she is relieved of the necessity of carrying a duly qualified medical practitioner, although, by reason of her usual employment, the ship is at other times classed as 'foreign-going'.

Such a coastal journey might, however, be part of a voyage originally commenced overseas and in such case the ship would be regarded, during the whole of such voyage, as a foreign-going ship.

In order to determine this question it is necessary to ascertain the port of destination intended when the voyage was entered upon.

[Vol. 19, p. 138]

(1) Opinion No. 1222.

(2) Opinions Nos 941 and 958.