Opinion Number. 211



Key Legislation

CONSTITUTION, covering cl. 5; ss. 51, 51 (i), (vii), (xxix), (xxxixj, 76, 98, 102, 104. 108. 109: POST AND TELEGRAPH ACT 1901. s. 2: DEFENCE ACT 1903, s. 6: COLONIAL LA WS VALIDITY ACT 1865 (IMP.): MERCHANT SHIPPING ACT 1894 (IMP.), ss. 735. 736

The Chairman, Royal Commission on the Navigation Bill

The Chairman, Royal Commission on the Navigation Bill:

(1) Under what sections of the Constitution does the Parliament of the Commonwealth derive its authority to pass navigation laws generally?

Primarily, under section 51 (i), read with section 98. Also under section 51 (vii) (lighthouses, lightships, beacons and buoys) and 51 (xxix) (external affairs). Incidentally, under section 51 (xxxix) (matters incidental to the execution of powers). Probably also as incidental to the 'Admiralty and maritime jurisdiction' conferrable on the High Court by section 76 (iii). See Prentice Egan, Commerce Clause of the Federal Constitution (U.S.A.), pp. 95 et seq. and American authorities there cited.

(2) What, if any, are the limitations of such power with respect to (a) area of jurisdiction;(b) subject-matter?

  1. There is some authority for the proposition that a colonial legislature cannot (unless expressly authorised by the Imperial Parliament) enact a law binding over persons beyond the limits of its territory (including territorial waters). See Tarring, Law relating to the Colonies, p. 75; Macleod v. Attorney-General of N.S.W. [1891] A.C. 458. But it is submitted that the power given to a colony to make laws for the 'peace, order, and good government' of the colony is not necessarily limited altogether in its operation to the territory and territorial waters of the colony-and that the dicta to that effect result from a confusion between municipal and international law. I incline to the opinion that there is no absolute legal limit of area, except such as is implied by the requirements that the law (1) must be for 'the peace, order, and good government of the Commonwealth'; (2) must not be repugnant to an Imperial law expressly, or by necessary intendment, made applicable to the Commonwealth.
  2. Even assuming the strict territorial limitation, the Commonwealth jurisdiction is expressly extended by covering clause 5 to British ships (other than ships of war) whose first port of clearance and whose port of destination are in the Commonwealth.

  3. The Commonwealth power is limited as to subject-matter-(1) by the two requirements mentioned above; and (2) so far as it depends on the 'trade and commerce' power, by the limiting words 'with other countries, and among the States'. The words 'navigation and shipping' in section 98 are not followed by any words limiting them to interstate and external shipping, and I do not think that those words ought to be read into the section; but I think that the declaration that the legislative power with respect to 'trade and commerce' extends to 'navigation and shipping' implies that the navigation and shipping referred to must in some way affect, or be connected with, interstate or external commerce. The power to control interstate and external commerce necessarily involves power to control, incidentally, vessels, which, though not engaged in such commerce, are using interstate or national highways. See Prentice & Egan, pp. 85,95-19106, etc.

(3) Has the Commonwealth Parliament power to repeal, modify, or re-enact the Merchant Shipping Act?

Under section 735 of the Merchant Shipping Act, the legislature of any British possession may, by an Act confirmed by the King in Council, repeal, wholly or in part, any provisions of the Merchant Shipping Act (except the provisions of Part III, which relate to emigrant ships) relating to ships registered in that possession. The Commonwealth Parliament can therefore, with the concurrence of the King in Council, repeal any of the provisions of the Merchant Shipping Act relating to ships registered in Australia (with the exception mentioned).

Except as aforesaid, the Commonwealth has no power to repeal or modify any part of the Merchant Shipping Act-or to affect the operation in Australia of any part of the Act-which expressly, or by necessary intendment, extends to Australia. But the Commonwealth may supplement any of such provisions by any laws, passed in the exercise of the general 'navigation and shipping' power, which are not repugnant to the provisions of Imperial laws so extending to Australia. E.g. if the Merchant Shipping Act, in a part extending to Australia, provides that certain ships must carry three engineers, the Commonwealth Parliament can require those ships to carry four-but cannot make it lawful for them to carry only two.

(4) Has the Parliament of the Commonwealth jurisdiction to legislate with respect to navigation where the subject-matter is exclusively within the territorial jurisdiction of the State?

E.g.-(a) bills of lading where goods are shipped on boats trading within a State only; (b) the ferry-boat service at Sydney?

It is hard to answer the question in this general form. As to navigation generally within a State, probably the answer would be 'no'-unless such a power can be collected from the 'Admiralty and maritime jurisdiction'. But this answer must be qualified so far as control of such navigation is incidentalto the control of the highways of interstate and external commerce. E.g. boats plying from port to port within a State would, in my opinion, be subject to Federal laws as to lights, signals, rule of the road, licensing of officers, safety, complement of men, liability for collision, inspection of hull and boilers, etc. See Prentice & Egan, pp. 101-19106.

  1. As to bills of lading, I think the point is doubtful. There is room for argument that this is wholly a State matter. So far as the bill of lading relates to matters occurring at sea, I am inclined to think that the Commonwealth Parliament has power. See Prentice & Egan, p. 105.
  2. As to Sydney ferry-boats, Sydney Harbour is a highway of Federal commerce, and the ferry-boats are subject to Federal control in their use of that highway-as regards such matters as are indicated above.

(5) Has the Parliament of the Commonwealth power to expressly repeal existing State navigation laws?

In my opinion it has-so far as those laws deal with matters within the legislative power of the Commonwealth. This is one mode of legislating with regard to those matters. The Commonwealth Parliament has power to decree, if it wishes, that Federal navigation shall not be subject to any statutory regulation-and, therefore, that the State laws on the subject shall cease to have effect-i.e. it has power to repeal those laws.

This opinion, however, is contrary to the views expressed by several leading constitutional lawyers in Parliament, during the passage of the Post and Telegraph Bill(Parliamentary Debates, 1901-2, pp. 3661-4, 4472) and the Immigration Restriction Bill (Parliamentary Debates, 1901-2, pp. 4859, 7355-62, 8377). The view taken was that under the Constitution (sections 108,109) State laws continue in force unless they are inconsistent with Commonwealth laws. My view is that when a Commonwealth law repeals a State law (on a subject within the Federal legislative power) the State law is inconsistent with Commonwealth laws. That the Commonwealth Parliament has power to declare State laws to be inoperative or inapplicable appears to be admitted (Post and Telegraph Act 1901, section 2; Defence Act 1903, section 6); and I see no difference in principle between a declaration of this kind and a repeal.

(6) What power has the Parliament of the Commonwealth to pass navigation laws binding (a) British, (b) foreign ships?

The power of the Parliament as to navigation extends to foreign ships within its jurisdiction, equally with British ships. But covering clause 5 gives the laws of the Commonwealth an exterritorial operation as regards certain British ships, which is not given as regards foreign ships. And, of course, legislation with respect to foreign ships may, in some cases, be a breach of treaty obligations-which, however, is a matter of international comity-not of law.

(7) Has the Parliament of the Commonwealth power to legislate with respect to State-owned ships?

I think it has-just as it has power to legislate with regard to State-owned railways. (The words 'railways the property of any State' in section 98 are to be read in connection with sections 102, 104, the object of which is to limit the power of the Commonwealth with respect to State railways.) But, of course, the power of the Parliament to legislate as to State-owned ships only applies when those ships come within the ambit of Federal jurisdiction-e.g. when they engage in Federal commerce, or use a Federal highway, etc.

(8) Under the Instructions of the Governor-General must navigation and shipping laws be reserved?

The gazetted Instructions contain no such requirement.

(9) May the Parliament of the Commonwealth empower Courts of Marine Inquiry to hold inquiries into the loss of foreign boats, which, after having left an Australian port, are lost outside the jurisdiction of the Commonwealth?

I think so-though when the parties and witnesses were outside the jurisdiction it might be impossible to give effect to the law.

(10) Has the Parliament of the Commonwealth power to regulate in any way the existing Harbour Boards or authorities in the various States?

Yes, to the extent of preventing them from infringing the Constitution, or a valid law of the Commonwealth; but I do not think it can control them generally.

(11) Can the Parliament of the Commonwealth regulate wharfage charges?

Yes, so far as they are an infringement of interstate free trade, or operate as preferences or discriminations of a kind lawfully forbidden by the Parliament.

(12) Has the Constitution conferred upon the Commonwealth any additional powers respecting navigation laws or matters incidental thereto? If so, what are they, and what are their limitations?

I understand that by 'additional' powers is meant powers in addition to those previously possessed by the States. The Constitution has conferred additional powers in this respect: that whereas before federation each colony was a separate jurisdiction, and intercolonial trade was practically foreign trade-so that ships sailing on an intercolonial trip left the jurisdiction of the State from which they sailed, and got beyond its control-the whole Commonwealth is now one jurisdiction. Moreover, covering clause 5 further extends the jurisdiction by providing that British ships whose voyage begins and ends in a Commonwealth port are subject to Australian law, i.e. are to all intents and purposes in Australian territory.

Assuming-which I am not prepared to admit-that the Australian colonies-whose Constitutions empowered them to legislate generally for the peace, etc. of the colony, but made no special mention of 'navigation and shipping'-were unable to pass laws regulating their coasting trade, except under the provisions of section 736 of the Merchant Shipping Act, then I think that the Constitution confers an additional power in that respect, as, in my opinion, the Commonwealth Parliament has, apart from that section, and subject of course to the Colonial Laws Validity Act, and to the provisions of the Merchant Shipping Act 'extending' to the Commonwealth within the meaning of that Act, full power to regulate its coasting trade.

(13) To what extent do the Merchant Shipping Act and the Colonial Laws Validity Act affect the powers of the Commonwealth in this connection?

This question has substantially been answered in the answer to the last preceding question. It may be added, however, that the Colonial Laws Validity Act is an enabling rather than a restrictive Act; in place of the old rule, expressed in somewhat vague language, that colonial laws repugnant to the laws of England were void, it substitutes a more precise rule that any colonial law repugnant to any Imperial Act extending to the coiony (defined to mean 'applicable to such colony by . . . express words or necessary intendment') shall be null and void 'to the extent of such repugnancy, but not otherwise'. See Quick & Garran, pp. 347-352.

Does section 5 of covering clauses in the Constitution Act limit the Commonwealth powers over the British Mercantile Marine?-If so, does the Bill, in any way assume such powers?

No; covering clause 5 is wholly an extending, and not a restrictive, clause. It practically extends the territorial area of the Commonwealth to embrace the British ships described in the clause, as if they were during their whole voyage in the territorial waters of the Commonwealth. It does not take away any power which without that clause the Commonwealth Parliament would have had.(1)

(1)This opinion is not in the Opinion Books but was published in Commonwealth of Australia, Parl. Papers 1906, Vol. III, p. 678 (Minutes of Evidence, Royal Commission on the Navigation Bill, 1906).

* See also Opinion No. 229.