The Comptroller-General of Customs asks for advice on the question raised in the following memorandum:

• An all-Union Conference of the Waterside Workers’ Federation of the Commonwealth has formally repudiated the new Arbitration Court Award which came into operation yesterday, and from present indications there is every prospect of a great industrial upheaval along the waterfront in all ports. Cutting from this morning’s ‘Argus’ dealing with the subject is attached.

2. In conversation with Ministers during the last few months, first in regard to the working of the Commonwealth Lighthouse steamers and more recently with reference to the effect of the coastal clauses of the Navigation Act, the suggestion has been made by two Ministers, independently and at different times, that it would make for stability and industrial peace if the Commonwealth, under its ‘trade and commerce’ power, assumed control of the loading and unloading of interstate and overseas vessels, issuing licences to persons engaged in the industry, and providing for the suspension or cancellation of the licences for certain offences detrimental to trade, such as participation in a strike, pillaging cargo, etc.
3. It is possible that if the present trouble extends and there is any general hold-up of shipping, the proposal may be brought forward for adoption, and it appears very desirable that the Department should be in a position to state without delay whether, apart from any other consideration, there is power under the Constitution to bring the proposal into effect.
4. The validity of any legislation in the direction mentioned would apparently depend on the meaning of the term ‘navigation and shipping’ as used in section 98 of the Constitution.
5. This matter has been touched on in the case of Australian Steamships Limited v Malcolm (1914) 19 C.L.R. 298. In delivering Judgment in the case, Mr Justice Isaacs stated, ‘The test of the contents of the words ‘navigation’ and ‘shipping’ is what they ordinarily meant in the systems of law in Australia at the time of Federation. The test has several times been applied by this Court, and has the concurrence of the Privy Council in a similar case (In re Marriage Legislation⁽¹⁾ in Canada). The English Merchant Shipping Acts which applied here and the local statute on navigation and shipping ranged over an area which, in principle, includes the matters said to be outside the ambit of power’.
6. In the Merchant Shipping Acts and in the local navigation statutes in force in Australia at the time of Federation, there was no provision for the control or licensing of waterside workers. From this it would appear that the Commonwealth cannot now legislate on that subject.
7. Against this view it may be contended that in the case mentioned above (Australian Steamships Limited v Malcolm) the High Court upheld the validity of the Seamen’s Compensation Act 1911, notwithstanding that no provision for seamen’s compensation appeared, at the time of Federation, in either the Merchant Shipping Acts or in the local navigation laws of the States. The laws in question did, however, regulate the reciprocal rights and obligations of owners and seamen engaged in foreign and interstate traffic by means of ships, and as a matter of fact, included a provision as to payment of compensation in certain contingencies, e.g. breach of contract, bad provisions or water, etc. The enactment of the Seamen’s Compensation Act constituted, therefore, merely an extension of a principle already embodied in pre-Federation legislation. As mentioned, however, there is an entire absence of provision in such legislation for the regulation of the conduct of shore labour engaged in the loading and unloading of ships.
8. As the matter may at any time become one of urgency and importance, it is suggested that the papers be referred to the Attorney-General’s Department for favour of opinion.

In my opinion, legislation of the character indicated, whether it comes within the words ‘navigation and shipping’ or not, is clearly included in ‘trade and commerce with other countries and among the several States’, and is therefore within the competence of the Federal Parliament.

[Vol. 23, p. 796]

(1) [1912] AC 880.