The Director-General of Health has forwarded the following memorandum to me for advice:

I am informed by the Chief Quarantine Officer (General), New South Wales, who is the representative of this Department in that State, that the Secretary of the Sydney Harbour Trust has forwarded a form of Application for Licence with an intimation that as this Department’s steam launch ‘Jenner’ is being used on the waters of the port for business purposes it will be necessary for a licence to be taken out in accordance with the Trust’s Regulations, the fee for which is £1.

The form of Application for Licence is attached hereto.

The launch ‘Jenner’ is engaged on Sydney Harbour acting as a tug boat towing the fumigating barge to various vessels, transporting animals to and from the Stock Quarantine Station at Abbotsford, conveying patients and other persons, also stores, to and from the Quarantine Station, North Head. A fumigating machine is also installed on the ‘Jenner’ and when necessary fumigation of vessels is carried out by this machine.

The ‘Jenner’ has been in commission since 1914 and a Licence has never been taken out nor has a request been made that such should be done.

Other launches of this Department at Sydney are:

Steam Launch ‘Pasteur’ engaged in fumigation work and relief to Steam Launch ‘Jenner’.

Fumigating Barge on which a large fumigating machine is installed.

Stock punt on which cattle and horses are conveyed to Stock Quarantine.

Motor Launch ‘Hygeia’ for conveying Medical Officers to board vessels and visit various places in Sydney Harbour.

I should be glad to be favored with information as to whether Commonwealth vessels or launches are subject to such requirements of State Harbour Trusts with respect to licensing of launches and to the payment of fees for the issue of licences.

By the Sydney Harbour Trust Act of New South Wales, No. 1 of 1901, the Sydney Harbour Trust Commissioners are established and given certain powers.

Among the regulations purporting to have been made pursuant to the provisions of the above Act are regulations 182 and 183 which read as follows:

LICENSING OF VESSELS

182. A vessel shall not be used within the port as a tug, ferry boat, ferry steamer, storage or coal hulk, lighter, water boat, floating plant, or as a launch for business or trade purposes, nor shall any vessel ply or be let for hire for business or trade purposes therein unless such vessel has been previously licensed by the Commissioners.
183. Every application for a license in respect of any vessel required to be licensed by the Commissioners shall be made on the prescribed form, which may be obtained from the head office of the Commissioners, and shall be accompanied by the prescribed annual fee for the license for which such application is made.

Regulation 183 above refers to ‘the prescribed form’ of application which ‘may be obtained from the head office of the Commissioners’. The form is not set out in the regulations, but I have obtained a copy from the office. It is a form of application for a license, to be made and signed by the owner of the vessel.

I have also obtained a form of the license, which is as follows:

NOT TRANSFERABLE

SYDNEY HARBOUR TRUST

LICENCE

Number……………………………………………………………………….

THIS IS TO CERTIFY that…………………………………………………………….

of…………………………………………………………………………….

subject to the Regulations and Conditions concerning the name is hereby licensed to use and employ the ‘……………..’ of …………………………tons register, of which he is the Owner within Port Jackson for the purpose of ………………………………

…………………………………………………………………………………………..

In default of production of the necessary Survey Certificate on or before the ……………….day of……………………..in each year, and payment in advance before the first day of ……………………………..in each year of the Annual License Fee, this License shall thereupon immediately cease and determine.

DATED at Sydney this…………………….day of…………………….19………….

On behalf of the Commissioners

………………………………………….Secretary.

It therefore appears that the Claim of the Commissioners is that the launch ‘Jenner’, belonging to the Commonwealth, may not lawfully be used as a tug or ply in the service of the Quarantine Department in Sydney Harbour until her owner, the Commonwealth, has applied for and obtained a licence for which the Commissioners charge £1 per annum.

In my opinion the claim cannot be supported.

In the first place, I think that the licence fee attempted to be charged is a tax by the State on property belonging to the Commonwealth, and is therefore prohibited by section 114 of the Constitution.

In the next place, I think that the requirement that the Commonwealth shall take out a licence and also the demand that the Commonwealth shall pay a fee for the licence, is inconsistent with the provisions of the Quarantine Act 1912–1924, and therefore contrary to section 109 of the Constitution, as a condition on the performance of a duty prescribed by Commonwealth law. See D’Emden v. Pedder,⁽¹⁾ which on this point is not overruled by subsequent cases.

The demand that a vessel of the Commonwealth shall not be used or ply unless the Commonwealth has taken out a licence from a State authority is in substance a command by the State to the Commonwealth Executive. As such, it is inconsistent with section 61 of the Constitution, which declares that the executive power of the Commonwealth is exercisable by the Governor-General, and extends to the execution of the laws of the Commonwealth. Clearly, no State law can be valid which enacts that ‘The Governor-General shall’, or ‘the Commonwealth shall’, do anything. It is equally incompetent for a State legislature to enact that no person shall use a vessel or a vehicle belonging to the Commonwealth, unless the Commonwealth has first obtained permission from the State.

It may be that the Harbour Trust Commissioners rely upon Pirrie v. McFarlane, 36 C.L.R. 170. That, however, was a very different case. Macfarlane was charged with driving a motor-car without a driver’s license; and the Court held that it was no answer for the defendant to say that he was on military duty in a military car. There was no suggestion that the Commonwealth, as owner of the car, was bound like a private owner to take out a licence for the car.

There was a later police court case of Pirrie v. Lavelle⁽²⁾ (Melb., May 1926) in which the driver of a Commonwealth mail van was charged with driving an unregistered vehicle. The case was defended by the Commonwealth on constitutional grounds, and the magistrate reserved his decision; but before it was given, the State Crown Law Department withdrew the prosecution.

In my opinion, vessels and launches the property of the Commonwealth are not subject to the licensing requirements of State authorities.

I have not dealt with the question whether the State Act purports to bind the Crown, nor whether this particular license is authorised by the State Act. In the event of proceedings by the State to enforce its claim, there would be something to be said on both these points. See sections 27, 63, 70 and 71 of the Act.

I may add that, as a result of the two cases in which Pirrie was complainant, regulations were made under the Defence Act providing that members of the Forces should not be required under State law to obtain any licence for doing anything in the performance of their duties, or to register any vehicle, vessel etc., belonging to the Commonwealth and appropriated to the use of the Forces. If steps are taken by the Harbour Trust Commissioners to enforce their claim, the passing of a similar Regulation under the Quarantine Act might be considered; but I do not advise such a course at present.

[Vol 23, p. 757]

(1) (1904) 1 CLR 91.

(2) Unreported judgment.