Opinion Number. 1626

Subject

whaling Whaling: power of commonwealth to prevent anchorage accommodation being granted to japanese whale chasers at careening bay, garden island (wa): regulation of use of ports by whaling ships: ‘fishing’ vessel

Key Legislation

Convention for the Regulation of whaling done at Geneva on 19 September 1931: International Agreement for the Regulation of Whaling done at London on 8 June 1937 [1946] ATS 10: Whaling Act 1935 ss 4, 8: Convention and Statute of the International Regime of Maritime Ports and Protocol of Signature done at Geneva on 9 December 1923 [1926] ATS 15, Statute arts 2, 14, 17: Immigration Act 1901 s 3(k): MERCHANT SHIPPING ACT 1894 (U.K.) (57 & 58 Vict. c. 60) s 744: Whale Fisheries (Scotland) Act 1907 (U.K.) (7 Edw. VII c. 41): Whale Fisheries (Scotland) (Amendment) Act 1922 (U.K.) (12 & 13 Geo. V c. 3): Whale Fisheries (Ireland) Act 1908 (U.K.) (8 Edw. VII c. 31): CONSTITUTION s 51(i), (xxix)

Date
Client
The Secretary, Department of External Affairs

Arising out of an application to Fremantle Harbour Trust Commissioners for anchorage accommodation for Japanese whale chasers at Careening Bay, Garden Island, Western Australia, the Secretary, Department of External Affairs has forwarded for my observations a copy of a memorandum drawn up in that Department with regard to grounds upon which the application could be refused, if such course were decided upon.

The memorandum is in the following terms:

  1. The Minister for Defence has intimated that the Fremantle Harbour Trust Commissioners have received an application for anchorage accommodation from April to October, 1938, for 16 Japanese whale chasers in Careening Bay, Garden Island, Western Australia. The questions raised by this application have been carefully investigated, in consultation with the Attorney-General’s Department and the Marine Branch of the Department of Commerce, with a view to the discovery of some satisfactory reason for refusal of the application.
  2. Japan is not a party to the International Whaling Convention of 1931, or to the International Whaling Agreement of 1937, and is not bound to respect the provisions in those agreements designed to prevent the capture of certain kinds of whales and to limit the periods of the year during which whales may be taken. The Commonwealth Government signed both these agreements, and although ratifications have not so far been effected owing to difficulties raised by various State Governments, it would of course be in accordance with the policy of the Commonwealth Government not to grant facilities to any whaling interests which are not bound by the terms of the whaling agreements.
  3. So far as the Commonwealth Government is concerned, it would appear that no breach of the Commonwealth Whaling Act 1935 or regulations made thereunder would be committed by entry of the Japanese whale chasers into Western Australian waters or ports. Section 8 of the Commonwealth Act prescribes that a ship designed and equipped for taking whales shall not be brought into any port or place in Australia unless the owner or charterer holds a licence under the Act, ‘or the ship is duly authorised by the Government of the country whose flag she flies to engage in taking … whales’. It is assumed that these chasers have been ‘duly authorised’ by the Japanese Government.
  4. The application for anchorage facilities has, however, been made to a Western Australian authority, and it may be possible to suggest to the Western Australian Government some ground upon which that Government might decide to refuse facilities. Australia and Japan are both parties to the Convention and Statute on the International Regime of Maritime Ports 1923. Article 2 of this Statute provides that, subject to reciprocity, every contracting State will grant to ‘the vessels of every other contracting State equality of treatment with its own vessel, or those of any other State whatever, in the maritime ports constituted under its sovereignty or authority, as regards freedom of access to the port and the full enjoyment of the benefits as regards navigation and commercial operations which it affords to vessels, their cargoes and passengers’. It would appear therefore that if the Western Australian Government refuses to grant anchorage facilities to Japanese whaling ships, it must do so on a ground which is applicable to all other ships, including Australian vessels.
  5. It is suggested (subject to formal advice from the Attorney-General’s Department as to the legality of the course proposed) that the Western Australian Government might be invited to announce that anchorage facilities will be granted only for whaling ships in respect of which satisfactory undertakings have been given that no breach of the provisions of the International Whaling Agreements will be committed. Western Australia may not be prepared to make such an announcement, as the Western Australian Government has recently made representations to the Commonwealth Government objecting to continuance beyond 30th June, 1938, of Australian obligations under the International Whaling Agreement, 1937. If, however, Cabinet should decide as a matter of policy that visits of foreign whalers to any Australian port should be discouraged, an attempt might be made to secure the support of the various State Governments for such a policy. Attention is drawn to the fact that in past correspondence with the Japanese Consul-General the Commonwealth Government has placed no difficulty in the way of Japanese whalers entering Australian ports. If a change in policy should be thought desirable, however, reasonable grounds for the change may be found in the subsequent proclamation of the Commonwealth Whaling Act 1935 and signature of the International Whaling Agreement 1937.
  6. The question of Australia’s obligation under the International Whaling Agreements has been exhaustively examined in this Department during the last fortnight, and several questions of law have been submitted for advice to the Attorney-General’s Department. As soon as this advice has been received, consideration will be given to the question of immediate steps being taken by the Commonwealth Government to tighten up the Commonwealth control over whaling facilities by ratification of the Whaling Convention of 1931 and, if necessary, by amendments to the Commonwealth Whaling Act of 1935.
  7. If you agree with the suggestion contained in paragraph 5, the question could be specifically referred to the Attorney-General’s Department, and then you would be in a position to submit the matter to Cabinet, in accordance with paragraph 2 of Mr. Thorby’s letter of 11th February, 1938. If the Attorney-General’s Department advise, after full consideration of the question, that the action contemplated in paragraph 5 of this memorandum would constitute a breach of the International Regime of Maritime Ports Convention, or if, in the alternative, the Western Australian Government should decide not to comply with a request by the Commonwealth Government that the application for anchorage should be refused, it would appear that no further action can be taken by the Commonwealth Government at the present time. Consideration could, however, be given to the question of amending the Commonwealth Whaling Act, without delay, in such a manner as to make it possible to refuse applications of this kind in the future by countries which are not parties to the International Whaling Agreements.

It is stated in the letter of the Minister for Defence referred to in the above memorandum that a request for anchorage accommodation has been granted in the case of Norwegian whaling fleets operating from Point Cloates, Western Australia.

The principal question for advice appears to be whether there is anything in the Convention on the International Regime of Maritime Ports which would prevent the application being refused.

The Commonwealth is interested in the application from the points of view, inter alia, of defence, immigration and whaling.

The Minister for Defence states that the Naval Board has advised him that objection cannot be raised to the granting of the application on purely defence grounds.

The immigration aspect would need to be considered in the event of Japanese being left behind to look after the whale chasers. The probability is, however, that the provisions of the Immigration Act would not be contravened if the Japanese members of the crew were left behind. Paragraph (k) of section 3 excepts from the definition of prohibited immigrant ‘the master and crew of any other vessels landing during the stay of the vessel in any port in the Commonwealth’. It is probable, however, that when this provision was enacted it was not contemplated that vessels would remain in Australian ports for lengthy periods. This aspect of the matter might be considered in connection with any proposal to amend the Immigration Act.

The Whaling Act 1935 would only permit of direct Commonwealth action to prevent the chasers in question being brought into any port or place in Australia in the event of the chaser not being duly authorized by Government of the country whose flag they fly. Section 8 of the Whaling Act provides as follows:

A ship designed and equipped for taking, killing or treating whales shall not be brought into any port or place in Australia or any Territory of the Commonwealth unless the owner or charterer of the ship is the holder of a licence in force under this Act authorizing the ship to be used for taking, killing or treating whales or the ship is duly authorized by the Government of the country whose flag she flies to engage in taking, killing or treating whales.

Penalty (on owner, charterer or master): one thousand pounds.

It is assumed that the whale chasers have been duly authorized by the Japanese Government, but I think they should be required to produce such authority.

Mention is made in the memorandum of the Department of External Affairs of the Convention regarding the International Regime of Maritime Ports (1923). Both Australia and Japan are parties to this Convention. The material portions of the Convention are contained in the Statute annexed thereto. The relevant provisions of the Statute are Articles 2, 14 and 17. These articles are as follows:

Article 2. Subject to the principle of reciprocity and to the reservation set out in the first paragraph of Article 8, every Contracting State undertakes to grant the vessels of every other Contracting State equality of treatment with its own vessel, or those of any other State whatsoever, in the maritime ports situated under its sovereignty or authority, as regards freedom of access to the port, the use of the port, and the full enjoyment of the benefits as regards navigation and commercial operations which it affords to vessels, their cargoes and passengers.

The equality of treatment thus established shall cover facilities of all kinds, such as allocation of berths, loading and unloading facilities, as well as dues and charges of all kinds levied in the name or for the account of the Government, public authorities, concessionaires or undertakings of any kind.

Article 14. This Statute does not in any way apply to fishing vessels or to their catches.

Article 17. Nothing in this Statute shall affect the measures which one of Contracting States is or may feel called upon to take in pursuance of general international conventions to which it is a party, or which may be concluded hereafter, particularly conventions concluded under the auspices of the League of Nations, relating to the traffic in women and children, the transit, export or import of particular kinds of articles such as opium or other dangerous drugs, arms, or produce of fisheries, or in pursuance of general conventions intended to prevent any infringement of industrial, literary or artistic property, or relating to false marks, false indications of origin or other methods of unfair competition.

If whale chasers can be regarded as being ‘fishing vessels’ within the meaning of that expression in Article 14, then the Convention will not apply to the chasers in question and the Commonwealth or the States would not be restricted by the provision of the Convention of 1923 from taking any legislative action or other action authorized by law to debar chasers from anchoring in Australian ports.

In Murray’s New Oxford English Dictionary, ‘fishing’ is defined as ‘the business, occupation or industry of catching fish or of taking other products of the sea or rivers from the water’. ‘Fishing vessels’ are, of course, vessels engaged in fishing. As an illustration of the use of the term ‘fisheries’ in relation to whaling, reference might be made to section 744 of the Imperial Merchant Shipping Act 1894. This section reads as follows:

s. 744. Ships engaged in the whale, seal, walrus, or Newfoundland cod fisheries shall be deemed to be foreign-going ships for the purpose of this Act, and not fishing boats, with the exception … of ships engaged in the whale fisheries off the coast of Scotland and registered at ports in Scotland.

There are several other Imperial Acts which refer to whale ‘fisheries’, e.g., Whale Fisheries (Scotland) Acts, 1907 and 1922 and the Whale Fisheries (Ireland) Act, 1908.

It would seem, therefore, that a vessel engaged in the taking of whales, that is to say, a whale chaser, could be regarded as fishing vessel. Although the matter is not absolutely clear, I think reliance may be placed upon Article 14 to justify the Commonwealth and States in claiming freedom to enact any legislation thought fit in respect of whale chasers desiring to use ports in Australia.

Article 17 of the Maritime Convention may also be helpful in the present connexion. This Article gives a Contracting State a very wide discretion to take measures ‘in pursuance of general international conventions to which it is a party’.

It seems highly desirable–in case it may be held that Article 14 does not extend to vessels engaged in catching whales–that the Whaling Convention should contain such provisions as would justify a contracting party in taking measures (in accordance with Article 17 of the Maritime Convention) to prevent the use of its territory by the vessels of another country which is not bound by the Convention. It may be, therefore, that the Commonwealth should endeavour to have the Convention amended so as to take power in express terms to refuse port facilities.

The Commonwealth Parliament could, in my view, enact legislation, under section 51(i) (trade and commerce) and (xxix) (external affairs) of the Constitution, for regulating the entry of foreign whaling vessels into Australia, but as a matter of policy the Commonwealth, in the enactment of any such legislation, would need to pay regard to the provisions of any International Conventions by which it was bound.

I am of opinion, although the matter is not clear beyond doubt, that the terms of the Convention on the International Regime of Maritime Ports will not prevent the refusal of the application for anchorage accommodation for the Japanese whale chasers.

I am further of opinion that it is competent for the Commonwealth Parliament to enact legislation of general application prohibiting whale chasers coming into Australian ports except in accordance with prescribed conditions.

I understand that it is proposed to convene a further conference on the subject of whaling in June next, and I suggest that consideration might then be given to the amendment of the Convention with a view to contracting parties being expressly authorized to refuse port facilities to vessels of countries which have not adhered to the Convention.

[Vol. 31, p. 207]