Opinion Number. 1516

Subject

Manufacture By Commonwealth of Spare Parts For Aeroplanes cockatoo island dockyard: manufacture for private concern of spare parts for aeroplanes: power of Commonwealth to set up manufacturing or engineering business for general commercial purposes: action against commonwealth to complain of transgression: action by attorney-general on relation of complainant

Key Legislation

Commonwealth Shipping Act 1923 s 14

Date
Client
The Assistant Secretary, Prime Minister

The Assistant Secretary to the Prime Minister’s Department has forwarded the following memorandum for advice:

I attach hereto copies of letters from the General Manager, De Havilland Air Craft Pty Ltd., and the Manager, Cockatoo Island Dockyard, dated 30th April and 24th May respectively, and am directed by the Assistant Minister to ask that you will kindly advise in regard to the legal aspect of the manufacture at the Dockyard, for a private concern, of spare parts for aeroplanes.

The letter of the General Manager of the De Havilland Air Craft Proprietary Limited mentioned in the Assistant Secretary’s memorandum is, in substance, a complaint against the manufacturer of aeroplane spare parts at Cockatoo Island Dockyard, and the letter of the Manager of the Dockyard is an admission that spare parts were manufactured but that the order for such manufacture was not solicited by the Dockyard.

The management of the works and establishments at Cockatoo Island is, under section 14 of the Commonwealth Shipping Act 1923, vested in the Board appointed under that Act.

Sub-section (4) of section 14 enables the Board to carry on in respect of Cockatoo Island the business of manufacturer, engineer, dock-owner, ship-builder and repairer, and any other business incidental thereto or to the said works and establishments.

In the case under consideration, aeroplane spare parts were manufactured at the Cockatoo Island Dockyards.

In an analogous case, the High Court held that the Australian Shipping Board has no power to enter into an agreement with a municipal council to supply, deliver and erect on municipal land steam turbo-alternators either on the ground that the Commonwealth Shipping Act 1923 conferred no power to enter into such an agreement, or that, if it did, the Act was beyond the power conferred upon the Parliament of the Commonwealth by the Constitution. (Commonwealth v. Australian Commonwealth Shipping Board, 39 C.L.R. 1).

In short, the High Court held that there is no power in the Constitution which enables the Parliament or the Executive Government of the Commonwealth to set up manufacturing or engineering businesses for general commercial purposes.

In view of the decision in this case, the Board is not, in my opinion, authorized, either under the Constitution or an Act of the Commonwealth, to manufacture at Cockatoo Island Dockyard aeroplane spare parts for a private concern.

In that case, however, the High Court declared that if a public body constituted under the laws of the Commonwealth transgresses its powers, the Attorney-General of the Commonwealth is a proper party to complain of that transgression. (See also Kidman v. Commonwealth, 37 C.L.R. at pp. 240 and 243). It would appear, therefore, that no action could be commenced against the Commonwealth Shipping Board unless the Attorney-General consented to institute the action on the relation of the party concerned.

[Vol. 25, p. 768]