The following communication has been forwarded to me for advice:

• A question has been raised by the Department of Defence as to the power to control the flying, by yachts, of national and other distinctive flags, e.g. the Royal Standard, Union Jack, Australian Ensign, etc., and suggestion made that section 406 of the Navigation Act be amended to require that yachts owned in Australia, and whether so registered or not, shall wear the Australian Red Ensign, as described in that section, and no other.

2. Some doubt is felt as to whether the Commonwealth Parliament has, under the Constitution, any power to legislate, in this particular regard at any rate, in respect of yachts or other vessels not engaged in trade or commerce, or whether, if such power is given, the Navigation Act is the proper statute in which to make the provision.
3. The power of the Commonwealth Parliament to legislate in regard to navigation and shipping, as a general subject-matter, is, it is understood, restricted to matters ancillary or relevant to trade or commerce by sea with other countries or among the States (Kalibia v. Wilson 11 C.L.R., 689; Newcastle and Hunter River Steamship Co v. Commonwealth, 29 C.L.R., 357; The King v. Turner; Ex parte Marine Board of Hobart, 39 C.L.R., 411. See also Navigation Act, s.2).
4. Yachts do not themselves engage in trade or commerce, and apparently they may be made the subject of legislation, under the trade and commerce powers, only in so far as is incidental to the proper control or protection of ships that are so engaged, e.g. it may be, and is, required (for the protection of merchant ships from danger of collision etc.) that yachts, in common with other vessels navigating in waters used by trading ships, shall display the proper navigation lights at night and shall at all times obey the prescribed Rules of the Road.
5. But it is apparently not competent for the Commonwealth Parliament to legislate, under the trade and commerce power, in regard to vessels not engaged in trade or commerce, such as yachts, dredges, trawlers or lighthouse tenders, even if engaged on interstate voyages, in any matter, such as the colours to be worn, which has no relation, directly or indirectly, with the well-being or proper control of trading ships.
6. It may be, however, that in time of war it might be regarded as necessary to the public safety that every vessel in Australian waters, irrespective of her employment, shall be in a position, in response to a demand by a Naval vessel (e.g., by flag signal or gun fire) to hoist a flag indicating her nationality and whether or not she is a commissioned ship. If so it would presumably be in order to prescribe by enactment under the naval and military power (Constitution, s 51(vi)) the flags to be carried and displayed by the various classes of ships, and prohibiting the use of any others. Even if such is the case it appears questionable whether such provision could be regarded as properly enforceable in time of peace. This is, however, an aspect of the matter in regard to which the Defence Department will no doubt, if thought necessary, ask for an Opinion.
7. This Department is at present interested only in the question as to whether the Navigation Act can be regarded as applying, or amended to apply, to vessels not engaged in trade or commerce, in respect of matters which do not directly or indirectly affect vessels so engaged. As the matter is, in its wider aspect, of considerable importance, I shall be glad if the Solicitor-General will be good enough to advise in regard thereto as early as possible.

Section 406 of the Navigation Act reads as follows:

406. The red ensign usually worn by British merchant ships defaced as follows, namely: In the centre of the lower canton next the staff, and pointing direct to the centre of the St George’s Cross in the Union Jack in the upper canton next the staff, a white seven-pointed star, indicating the six Federated States of Australia and the Territories of the Commonwealth, and in the fly five smaller white stars, representing the Southern Cross,

is hereby declared to be the proper colours for all merchant ships registered in Australia, except in the case of any ship for the time being allowed to wear any other national colours in pursuance of a warrant from the King or from the Admiralty.

It is stated that the yachts do not themselves engage in trade or commerce, and I think therefore that the provisions of the Navigation Act would not extend to them. The powers of the Commonwealth with respect to the subject of navigation and shipping only empower it to deal with that subject in so far as it is relevant to interstate and foreign trade and commerce. (See Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth, 29 C.L.R. 357 at p. 368). By section 406 the red ensign is declared to be the proper colours for all merchant ships. Dredges, trawlers and lighthouse tenders may engage in interstate trade and commerce and would thereby become subject to the provision of the Act, but in view of the statement that yachts do not engage in trade and commerce I do not think an amendment of section 406 as suggested above would be a valid exercise of the power of the Commonwealth to make laws with respect to trade and commerce with other countries and among the States.

[Vol. 25, p. 732]