Opinion Number. 1815

Subject

SHIPPING
POWERS OF MARITIME INDUSTRY COMMISSION: WHETHER MARITIME INDUSTRY COMMISSION HAS POWER TO MAKE AN ORDER APPLICABLE TO A SPECIFIC SHIP REQUIRING A WHOLLY AUSTRALIAN CREW: SCOPE OF DEFENCE POWER: COMMONWEALTH PARLIAMENT’S POWER TO LEGISLATE IN RELATION TO CREWS ON VESSELS ENGAGED IN OVERSEAS TRADE

Key Legislation

CONSTITUTION s 51 (i), (vi): NATIONAL SECURITY (MARITIME INDUSTRY) REGULATIONS regs 2, 7

Date
Client
The Secretary, Department of Supply and Shipping

I refer to your memorandum, dated 30thNovember, 1946, concerning the employment of a white crew on the ‘Mangola’.

(2)  It is clear that the ‘Mangola’ is a ‘ship’ within the meaning of the National Security (Maritime Industry) Regulations.

(3)  The Maritime Industry Commission is authorized to make an order applicable to the ‘Mangola’ under regulation 7 in relation to any of the matters specified in paragraphs (a) to (1) of sub-regulation (1) for the purposes mentioned in regulation 2.

(4)  The particular paragraphs of sub-regulation (1) of regulation 7 that appear applicable in this case are paragraphs (e), (f), (g) and (l). These are as follows:

(e)  The manning of ships, the selection of ships complements, and the terms and conditions under which persons may become qualified for ranks or ratings;

(f)  The number of the various classes of employees, classified according to their ranks and ratings, to be carried in any ship or class of ship;

(g)  Preference in employment in ships;

(l)  Any matter which appears to the Commission to be conducive to the purpose of these Regulations.

It might here be noted that sub-regulation (2) of regulation 7 provides that:

Any order made under this regulation may be framed so as to apply either in relation to all employees, ships and places, or in relation to such particular employees, ships or places, or to such particular classes of employees, ships or places as are specified in the order.

(5)  The provisions I have quoted confer, in my view, ample power to make an order of the nature desired by the representatives of the maritime organizations, provided always that the order is directed towards the fulfilment of the purposes of the Regulations. These purposes are specified in regulation 2 as being purposes ‘to secure the adequate and efficient manning of Australian merchant ships and the improvement and safe-guarding of the conditions of all persons serving therein.

(6)  I think it is clear that the Commission may consider both these purposes in relation either to Australian ships and seamen generally or to particular Australian ships and the persons serving in them. I would add that, in my view, the improvement and safeguarding of the conditions of any persons serving on an Australian ship would be within the purposes of the Regulations as stated in regulation 2.

(7)  Messrs. Burns, Philp and Co. contend, it appears, that their ship ‘Mangola’ is adequately and efficiently manned. Assuming the truth of this contention, it is not necessarily to be inferred that the Commission could not make, in relation to the ‘Mangola’, an order of the nature under discussion. For example, there may be circumstances which would justify the Commission in holding that such an order would be conducive towards an improvement in the conditions of some of the persons serving in the ship. Furthermore, there may be circumstances, in relation to Australian merchant shipping generally, by reason of which an order requiring the ship ‘Mangola’ to be manned in a different manner would, in the view of those competent to express an opinion in such matters, tend to achieve one or more of the purposes specified in regulation 2. It follows, therefore, that the present adequate and efficient manning of the ship ‘Mangola’ does not conclude the matter as to whether an order under regulation 7, affecting the manning of the ship ‘Mangola’ may be made. I am not sufficiently fully informed to express any opinion on these points.

(8)  Before making an order in relation to the ‘Mangola’, the Commission should, I think, consider what effect the manning of the ship ‘Mangola’ by a wholly Australian crew would have in promoting the purposes specified in regulation 2. If the Order would, in the view of the Commission, have no such effect, the Commission should not make an order of the nature sought by the representatives of the maritime organisations.

(9)  Notwithstanding what I have said above, I think I should state that these views are based simply on the wording of the Regulations. However, the Regulations have been made under the ‘defence’ power of the Commonwealth and the powers of the Commission should be so exercised as not to exceed the limits of the ‘defence’ power. The Regulations themselves state that the purpose of the Regulations is to secure during the present war the matters referred to above (regulation 2). Technically, the present war is still continuing, but it is clear from cases recently decided by the High Court that the validity of Regulations of this type (and of orders made thereunder) will be considered with reference to the extent to which emergency conditions still prevail in the field in which the Regulations operate. In this connexion, I would invite reference to my memorandum to you, dated 14th February, 1947, in regard to the proposal to grant annual leave to seamen.1 At this late stage in the life of National Security Regulations, it could not be confidently assumed that the High Court would uphold an order of the type contemplated. 

(10)  I should mention that Parliament would have undoubted power, even in time of peace, to enact legislation in relation to the crews to be carried on vessels such as the ‘Mangola’ which are engaged in overseas trade.

(11)  An additional copy of this memorandum is attached for transmission to the Maritime Industry Commission.

[Vol. 37, p. 540]

1 Opinion not published.