Opinion Number. 253

Subject

DISABILITY OR DISCRIMINATION WHETHER EXEMPTION BY STATE FROM PILOTAGE DUES IN FAVOUR OF VESSELS OWNED AND REGISTERED IN THAT STATE AMOUNTS TO

Key Legislation

CONSTITUTION, ss. 92,117

Date
Client
The Prime Minister

The Prime Minister asks to be advised on a question which has arisen as to whether there is anything unconstitutional in the distinction made by the Victorian Pilotage Regulations, as regards exemption from pilotage rates, between vessels owned and registered in Victoria and other vessels.

The text of the Regulations is not submitted, but the facts are stated in the following memo by the Comptroller-General of Customs:

The position in regard to this matter is this:

As to any vessel engaged in the coastal trade of Australia if in charge of an exempt master, i.e. a master who has a certificate from the Marine Board of Victoria that he is competent to pilot his own ship no pilot is required or pilotage charged. As to vessels engaged in oversea voyages (outside Australia) if they are-

  1. owned and registered in Victoria and
  2. in charge of an exempt master, no pilotage is charged.

The effect of the above is that there is a difference made between ships of two States. If the Rover (trading to the East) for example be registered in Victoria she would be free of pilotage if under the charge of an exempt man, but if registered in Sydney though also in charge of an exempt master she would be charged pilotage were she to enter a Victorian port en route (say) to Calcutta. This is undoubtedly to give an advantage to a Victorian ship which the ships of other States do not have, and would seem to be an infringement of the Constitution.

It appears that, as regards vessels engaged in the oversea trade, the Victorian Regulations discriminate in favour of vessels owned and registered in Victoria, as against vessels owned and registered either in one of the other States of the Commonwealth or in some other country.

I am not however aware of anything in the Constitution which-in the absence of Federal legislation on the subject-makes it unlawful for the State of Victoria to grant such an exemption to vessels registered in Victoria and not to vessels registered elsewhere. Such a discrimination does not appear to involve any interference with freedom of interstate trade, commerce, or intercourse.

I am inclined to think, however, that discrimination on the ground of ownership in Victoria, as against ownership in other States, may be in conflict with section 117 of the Constitution-i.e. that a British subject resident (say) in New South Wales, and owning a ship registered in Victoria, is entitled to the same exemptions as a British subject resident in Victoria and owning a ship registered in Victoria.

[Vol. 5, p. 303]