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

• Part VIII (section 330–355) of the Navigation Act refers to Pilots and Pilotage. This Part has not yet been proclaimed to come into operation.

2. It has come under notice that an attempt is being made by certain interested parties to organise opposition by the several State Governments to the proclamation of this Part of the Navigation Act and the taking over from State control, under its provisions, of the pilots now stationed at the principal ports.
3. It is stated, in this connection, that Sir Edward Mitchell, K.C., of Sydney, has advised the New South Wales authorities that ‘the Commonwealth has no power under section 5 of the Constitution to take over from the States pilotage matters in respect to foreign vessels, as that section limits the Commonwealth’s power to British ships’. It is further stated that the New South Wales Government, presumably on the strength of this advice, proposes to contest the matter if any action in the direction mentioned is taken by the Commonwealth.
4. It seems hardly probable that Sir Edward Mitchell has given the advice mentioned in regard to the ordinary pilotage work in and out of ports. It is more likely that the advice, if given, related to the licensing of pilots to conduct ships from one port to another port in Australia (section 332). Even in such case, however, it would appear that the contention had weight in regard only to so much of the pilotage work as was performed outside territorial limits. The only body of licensed pilots, however, to which any consideration need be given is that known as the Torres Straits Pilots’ Association. The members of this Association are licensed to pilot vessels to or from Sydney or Brisbane by way of Torres Straits. The engagement, embarkation and disembarkation of such pilots would, however, always be in territorial waters, and though, whilst off the New South Wales coast, the vessels piloted would be for some time beyond the three-mile limit, the greater portion of the route along the Queensland coast would be inside the Great Barrier Reef, and consequently, by virtue of the Coast Islands Annexation Act 1879 (43 Vic. No. 1) within territorial limits.
5. In view of the importance of the matter, and of the probability of opposition by at least one State to the taking over of the pilots under the Navigation Act, I shall be glad if the Solicitor-General will be so good as to furnish me with early advice as to the powers of the Commonwealth in regard to Pilots and Pilotage.

The advice which has caused the doubt as to the power of the Commonwealth to enact the pilotage provisions of the Navigation Act 1912–1920 is that covering section 5 of the Constitution refers only to British ships and not to foreign ships.

The intention of section 5 is to declare the territorial limits within which the legislation of the Commonwealth shall operate. Such limits include British ships whose first port of clearance and whose port of destination are within the Commonwealth, even while those ships are outside the geographical limits of the Commonwealth.

The power of the Commonwealth Parliament to legislate as to pilotage is derived from placitum (i) of section 51 of the Constitution (as explained by section 98) and from placitum (xxxix) of section 51.

The obligations of ships as regards pilotage are in respect of compulsory pilotage ports (section 330, Navigation Act) and in respect of the entering, leaving, or navigation within, such ports of vessels not exempt under the Act from pilotage.

Part VIII of the Navigation Act does not in my opinion purport to extend its territorial operation beyond that fixed by covering section 5 of the Constitution.

The Parliament of the Commonwealth has clearly the power to legislate with regard to foreign vessels entering or leaving Commonwealth ports and I am of opinion
that the objection to the validity of Part VIII as stated in the above memorandum is without foundation.

[Vol. 21, p. 124]