The Comptroller-General, Department of Trade and Customs, has forwarded the following memorandum for advice:

• Recently certain steam trawlers, which previously had operated off the coast of New South Wales, have been bringing their catches alternately to Sydney and Melbourne, thus involving an interstate voyage. While these vessels were operating within a single State, they were treated as exempt from the operation of the Commonwealth Navigation Act, but when they enlarged their sphere of operations and proceeded on cruises which took them from a port in one State to a port in another, they were considered to be subject to its provisions. In one case, in which the s.s. ‘Brolga’, (registered in Auckland N.Z.) was lost whilst proceeding from Melbourne to Sydney, a charge was laid against the master, before a Court of Marine Inquiry, of failure of duty in connection with the navigation of the ship under his charge. Prosecutions are also pending of the masters of two other trawlers for proceeding to sea on an interstate voyage–Sydney to Melbourne–without first obtaining a certificate of survey for the vessels.

2. Doubts have, however, now arisen as to whether these trawlers come at all within the scope of the Navigation Act, or whether, as a matter of fact, the control of this class of vessel generally comes within the ambit of the law-making power of the Commonwealth.
3. It is understood that the power of the Parliament of the Commonwealth to legislate in respect of ships, and their owners, masters and crews, is derived from sections 51 and 98 of the Constitution, supplemented by certain sections (e.g. ss. 264, 735 and 736) of the Merchant Shipping Act 1984.
4. Section 51(i) of the Constitution empowers the Commonwealth parliament to make laws with respect to ‘trade and commerce with other countries, and among the States’, whilst section 98 provides that this power ‘extends to navigation and shipping’. From opinions expressed in the High Court in the ‘Kalibia’ Owners v. Wilson (11 C.L.R. 689) and Australian Steamships Ltd v. Malcolm (19 C.L.R. 298) it appears that section 98 of the Constitution does not enlarge the ambit of the trade and commerce powers conferred by section 51(i), but is merely explanatory of that grant. The power consequently appears to be limited to matters which come properly within the scope of the words ‘trade and commerce with other countries and among the States’.
5. It is considered that a fishing vessel cannot properly be regarded as engaged in any operation of trade or commerce, and further, even if this is allowed, it appears doubtful if, in a case where, as in those now under discussion, a trawler leaves Sydney empty, proceeds to sea outside the three-mile limit, secures a catch of fish, and brings the same into Melbourne for marketing, the employment in trade or commerce, if it exists, could be said to be ‘among the States’.
6. In section 51(x) a further power is conferred on the Commonwealth Parliament to legislate as to ‘fisheries in Australian waters beyond territorial limits’. But this, it is suggested, is to be construed as relating only to matters directly bearing upon the protection and control of the fishing grounds, the preservation of the fish, and the regulation of extra-territorial fishing operations based on Australian ports, including the licensing of fishing boats, but not as extending to such matters as the equipment and manning of the vessels so employed, or anything occurring within the three-mile limit not directly connected with fishing operations conducted outside territorial limits. In any case, it is suggested, the Navigation Act is not an expression of the legislative power of Parliament in regard to ‘fisheries’, inasmuch as the only reference, direct or indirect, to the matter in that Act is of a negative character, i.e., where by section 423 power is conferred upon the Governor-General by Order to declare that certain specified provisions of the Act shall not apply to, inter alia, ‘fishing boats’.
7. As regards the powers of legislation conferred by the Merchant Shipping Act, no authority is apparently given by any of its provisions to make laws in regard to fishing vessels.
8. The power given by section 264, for instance, to the Legislature of a British Possession to apply or adapt to British ships registered at, trading with, or being at any port in that possession certain provisions of the Merchant Shipping Act which do not otherwise so apply, has reference only to the provisions of Part II of the Act, dealing with the relations of masters and seamen, and does not extend to the provisions of Part IV, relating to fishing boats. This last-mentioned Part, it will be noted, is by section 372 expressed not to apply to any British Possession.
9. Section 735 empowers the Legislature of a British Possession to ‘repeal, wholly or in part, any provisions of this Act (other than those of the Third Part thereof which relate to emigrant ships) relating to ships registered in that Possession’. This power of repeal, it has been stated, implies and recognises a power of new enactment. In this connection, it may be mentioned that the Order of the King-in-Council approving the Navigation Act 1925, as issued in the form of Statutory Rules and Orders 1925 No. 762, is headed ‘Order in Council confirming Act of the Commonwealth of Australia repealing certain Provisions of the Merchant Shipping Act 1894.’
10. But this power of repeal of a provision of the Merchant Shipping Act and its substitution by a law enacted by the Legislature of a British Possession has force, it is submitted, only in relation to such provisions of the Imperial Act, as up to the time of such repeal, actually had application in that British Possession. Any Part of the Merchant Shipping Act, e.g. Part IV relating to fishing boats, which has no application to Australia, obviously cannot be repealed by the Commonwealth Parliament, and consequently no power could be derived from section 735 for the Commonwealth Parliament to legislate as regards fishing boats, whether registered in the Commonwealth or not.
11. Section 736 gives authority to the Legislature of a British Possession to ‘regulate the coasting trade’ of the Possession. So far as fishing boats are concerned, this goes no further than section 51(i) and 98 of the Constitution. Fishing boats, it is thought, are not engaged in trade in any proper sense of the word.
12. There are other classes of ships besides fishing vessels, i.e. pleasure yachts, missionary ships, lighthouse tenders, pilot steamers, and dredges, to which the arguments set out above would appear to apply, though possibly not in all cases with equal force. To all of these, certain provisions of the Navigation Act have hitherto been considered to apply. At any time it may become necessary for the Department to take steps to enforce their observance, and it is highly undesirable that there should be any doubt as to its power to do so, or that it should act illegally.
13. In view of the fact that as regards fishing trawlers the position is acute, seeing that prosecutions are now pending, I shall be glad if the Solicitor-General will be so good as to favour me with his Opinion at the earliest possible moment.

I understand that the business is carried on as follows: Each trawler fits out in Sydney, proceeds on a fishing expedition, and brings its catch to Melbourne. The fish are sold in Melbourne, and the trawler departs on another fishing expedition and proceeds with its catch to Sydney, where the fish are sold, and the trawler fits out once more for the Melbourne trip.

Assuming that this statement of the facts is correct, I am of opinion that the trawlers are engaged in trade and commerce among the States within the meaning of sections 51(i) and 98 of the Constitution, and are subject to the provisions of the Navigation Act unless exempted from the Act by order made under section 423.

In view of the opinion expressed above, it is not necessary to consider the scope of the powers conferred by section 51(x) of the Constitution and by the Merchant Shipping Act.

[Vol. 22, p. 714]