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

With reference to the Solicitor-General’s Opinion of 23.5.23, No. 105 of 1923,⁽¹⁾ relative to the above, in which he advised that a master or ship’s officer affected by a decision of a Court of Marine Inquiry cancelling or suspending his certificate of competency had the right of appeal under section 475 of the Merchant Shipping Act 1894 to the High Court of England, it is considered highly desirable that, if possible, provision should be made in the Navigation Act 1912 for an appeal to some Court in Australia.

It is recognised, of course, that in view of the Opinion abovementioned there would be no power, by Commonwealth legislation, to deprive a master or officer affected by a decision of a Court of Marine Inquiry of his right under the Merchant Shipping Act to appeal direct to the High Court of England. Possibly, however, provision might be made for an appeal to an Australian Court, still leaving to the person affected the option either of appealing direct to the High Court of England or, if he were dissatisfied with the decision of an Australian Court, appealing from that Court to the High Court.

I shall be glad if the Solicitor-General will be good enough to advise in the matter, and, if he considers the suggestion practicable, whether an amendment to section 366 of the Navigation Act to the following effect would meet the case:

Rehearing an appeal

Section three hundred and sixty-six of the Principal Act is amended by adding at the end thereof new sub-sections as follows:

2. Where on an inquiry by a Court of Marine Inquiry a decision has been given with respect to the cancelling or suspension of the certificate of a master or officer, and an application for a rehearing under this section has not been made or has been refused, an appeal shall lie from the decision to the Supreme Court of the State in which the inquiry was held.
3. Nothing in this section shall be read as in any way derogating from or interfering with any right conferred by the Merchant Shipping Act on a master or officer affected by the decision of a Court of Marine Inquiry to appeal from that decision to the High Court of England.

I see no legal objection to providing in the Navigation Act for an appeal to an Australian Court against a decision of a Court of Marine Inquiry. Such provision would not, as stated above, affect the right of the person concerned to appeal to the High Court of England under section 475 of the Merchant Shipping Act.

It is suggested that the proposed provision should be in the following form:

Appeals against cancellation or suspension of certificates

372A Where a Court of Marine Inquiry has cancelled or suspended the certificate of a master or ship’s officer and the decision of the Court has not been reheard in pursuance of section three hundred and sixty six of this Act, the master or officer may appeal to the Supreme Court of the State in which the inquiry resulting in the cancellation or suspension was held, and the Supreme Court shall have jurisdiction to entertain the appeal and to confirm, revoke or vary the cancellation or suspension.

[Vol. 20, p. 41]

(1) Opinion [Vol. 19, p. 483] not published.