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

• In his Opinion No. 41 of 21.2.24,⁽¹⁾ the Solicitor-General advised, inter alia, that the provisions of the Navigation Act relating to the issue of certificates of competency override the provisions of any State Act providing for the issue of similar certificates. The State Act, it was ruled, as far as the certificates are concerned, became superseded upon the date that Division 3 of Part II of the Navigation Act commenced, and thereafter the State-issued certificates are only valid to the extent permitted by the Commonwealth Act in section 24.

2. But this Opinion, as pointed out in the Secretary’s memorandum 54/7/148 of 5.8.24, was confined to certificates having force beyond the limits of a State, and did not deal with the right of the States to issue certificates of competency having effect only in respect of voyages within the limits of the State by which they are issued.
3. This Department issues certificates of competency in respect of ‘limited coast-trade’ and ‘river and bay’ ships, irrespective of whether the vessels do or do not trade beyond the confines of a single State. Certain of the States also issue certificates of a similar character valid only on vessels trading within the limits of the State jurisdiction.
4. A proposal was recently made to the Premiers of these States that in the interests of economy the issue of certificates of competency should be dealt with by a single authority, and that as the Commonwealth had of necessity to maintain a staff to examine candidates for certificates for foreign-going and interstate ships, the States should cease to issue certificates of any grade, leaving the examination of candidates and the issue of certificates, including those for intrastate ships, to the Commonwealth Navigation Service. The suggestion has been reserved by certain of the States for discussion at a Conference to be shortly held in Melbourne.
5. In this connexion I shall be glad if the Solicitor-General will be so good as to advise whether, seeing that provision is made in the Navigation Act for the issue of all grades of certificates for masters, mates and engineers, and that such certificates would cover, inter alia, voyages within the limits of a single State, such provision has the effect of superseding the provisions of any State Act for the issue of similar certificates. If such is the case, it would greatly facilitate the transfer to the Commonwealth of the work still carried out by certain States.
6. The view taken is that the enactment of the provisions of the Navigation Act in regard to the issue of certificates of competency is a proper exercise of the powers of the Commonwealth Parliament under the Constitution, and that those provisions override any State law dealing with the same subject-matter.
7. It has been held by the High Court, in Australian Steamships v. Malcolm (19 C.L.R., page 335) that the effect of section 98 of the Constitution is to include in the power to make laws with respect to trade and commerce with other countries and among the States the power to make laws with respect to navigation and shipping ancillary or relevant to such trade and commerce (per Gavan Duffy and Rich, J.J.). This ruling was recently quoted with approval in the judgment of the High Court in the Newcastle and Hunter River s.s.Co. v. the Attorney-General for the Commonwealth. In the last mentioned case, it was held that certain provisions of the Navigation Act and regulations, relating to manning, accommodation and licensing to engage in the coasting trade, were beyond the power of the Commonwealth Parliament to the extent to which they purported to prescribe rules of conduct to be observed in respect of ships engaged solely in the domestic trade of a State. The reason given for this Judgment, as regards the provisions relating to manning and accommodation, was that the facts stated on the record did not suggest that provisions relating to the manning and accommodation on ships engaged solely in intrastate trade were relevant or ancillary to trade with other countries or among the States.
8. The Court, however, expressly limited the Judgment to the particular provisions mentioned, and declared ‘We must not be taken as expressing any opinion on any provisions of the Act other than those which we have specifically dealt with.’ The Judgment therefore cannot be taken as in any way affecting the power of the Commonwealth to control intrastate ships navigating in waters used by ships engaged in trade or commerce with other countries or among the States in so far as it is necessary to do so for the purpose of securing the safety of the interstate and foreign-going shipping.
9. All navigation upon the high seas or in waters connected therewith and navigable by sea-going vessels is regulated, when such navigation is within the limits of Commonwealth jurisdiction, by the Navigation (Collision) Regulations, being Statutory Rules 1923 No. 100, made under the Navigation Act. It is essential that the masters or officers at any time in charge of ships using these waters shall have an intimate knowledge of the thirty-one articles contained in these Regulations. A steamship, for example, whose master or officer in charge was ignorant of the requirements of Articles 18 and 19 as to meeting and crossing vessels would be a direct menace to the safety of all vessels in her vicinity.
10. It is also essential that engineers in charge of the engines of vessels shall be fully competent to handle them and to put into effect instantly all orders from the bridge as to speed, etc., ahead or astern.
11. A knowledge of the Collision Regulations is one of the subjects of examination under the Navigation Act of masters and deck officers for certificates of competency. Similarly, in examinations for certificates of competency as engineers, the qualifications of the candidates in the handling of engines in times of emergency are examined into.
12. As the Commonwealth Parliament has, under the Constitution, the power to make laws in regard to interstate and foreign-going shipping, and as, to source the safety and proper navigation of such shipping it has provided, in the Navigation Act, for the examination of masters, mates and engineers, the power of the States to issue certificates to vessels navigating in waters used by interstate and foreign-going ships has, it is suggested, ceased to exist, the provisions of the State Acts conferring such power on the State authorities having become superseded as from the date upon which the provisions of the Navigation Act in the matter come into effect.
13. If, however, the Solicitor-General is of opinion that the States still retain the power to issue certificates of competency to masters and officers of vessels wholly engaged in the domestic trade of a State, I shall be glad if he will further advise as to whether such power would extend also to the issue of certificates in respect of vessels which, while navigating only within the limits of a State, were engaged, in the course of their trade, in the carriage of goods forming part of the interstate or oversea trade of the Commonwealth, for instance, to quote the example given in the Newcastle and Hunter River Company case, goods sold in Sydney for delivery in Queensland, and sent by an intrastate vessel to Byron Bay and thence to Queensland by railway.
14. The favour of early advice in the matter would be appreciated.

Section 14 of the Navigation Act requires that ships registered in Australia or engaged in the coasting trade shall carry ‘a duly certificated master and officers according to the scale set out in Schedule I’. The officers referred to are stated in the Schedule to be such as hold certificates proper for the ship and voyage.

Section 14 has been declared by the High Court to be invalid in so far as it purports to apply to ships engaged solely in intrastate trade. (Newcastle & Hunter River S.S.Co.’s case 29 C.L.R. 357.)

If the number of officers of such ships is not within the legislative competence of the Commonwealth, it cannot be assumed that the Commonwealth can interpose its authority as to the qualifications of such officers, and it appears to be a function of the States to lay down the qualifications required and to provide the means of testing candidates for positions as officers.

It is stated in the judgment in the case above referred to that, to support the validity of the sections in question ‘it is not enough merely to say that the intrastate ships go upon the high seas or in waters used by interstate or foreign ships’.

The granting of certificates to officers is a matter so closely allied to the requirements laid down in section 14 that I am extremely doubtful whether it can be successfully contended that sections 15–25 have valid application in relation to the manning of intrastate ships.

With regard to the circumstances mentioned in paragraph 13 of the above memorandum, it appears that the vessel which carries the goods between Sydney and Byron Bay is engaging in the coasting trade within the meaning of section 7. That section includes the carriage of goods from a port in a State to another port in the same State as being part of the coasting trade to which the Act applies.

Assuming that the application of the Act to such carriage of goods is unconstitutional the result is that by virtue of section two the application of section 7 is regarded as limited to the trade in regard to which the Commonwealth can validly legislate, i.e., the carriage of goods between one State and another State.

It is, in my opinion, within the power of the Commonwealth to regulate any carriage by sea of goods sold in Sydney for delivery in Queensland, which is part of the transport necessary to effect such delivery, and the issue of certificates to officers on ships engaged in that carriage is within the province of the Commonwealth.

[Vol. 21, p. 282]

(1) Opinion [Vol. 21, p. 10] not published.