The Minister for Trade and Customs asks to be advised whether the papers disclose any unconstitutional practice on the part of the Victorian authorities.

The Victorian Marine Act 1890 provides (sections 80, 81) that pilotage exemption certificates may be granted to-

1. the master of any ship employed in coasting only or actually trading between any port of Victoria and any of the other Australian States, New Zealand, or Fiji; and
2. the master of any ship registered and owned in Victoria.

The result is that while the master of a ship registered or owned in (say) New South Wales, may obtain an exemption certificate if the ship is engaged solely in the coasting trade (including New Zealand and Fiji), the master of a ship which trades to oversea ports (other than New Zealand and Fiji) cannot obtain such a certificate unless the ship is registered and owned in Victoria.

Mr Attorney-General Isaacs in an opinion of 9 July 1906'" advised the Prime Minister as follows:

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.

I agree with the above opinion as regards section 92 of the Constitution, and am of opinion that no violation of interstate free trade is shown in this case.

As regards the question whether there is any breach of section 117 of the Constitution, the facts of the case appear to be as follows: As regards ships solely engaged in the coasting trade, there is no discrimination; but as regards oversea ships there is this discrimination-that if the ship is registered and owned in Victoria, the master can obtain an exemption certificate, whereas if the ship, though registered in Victoria, is owned in (say) New South Wales, he cannot.

Assuming that 'owned in Victoria' means 'owned by persons resident in Victoria', the question would be whether a British subject resident (say) in New South Wales, and owning a ship registered in Victoria, is by the Victorian Act 'subject in Victoria to a disability or discrimination' within the meaning of section 117.

The master of the ship is clearly subject to a disability, and to a discrimination, but he cannot rely on section 117, because the discrimination, so far as it affects him, is not based on the ground of his residence, but of the owner's residence. Whether the owner is subject to disability or discrimination is a more difficult question; but I am inclined to think that-on the above assumption-there would be a discrimination against the owner by reason of the disability imposed upon masters employed by him.

However, I do not think that the assumption made above-that 'owned in Victoria' means 'owned by persons resident in Victoria'-is justified. It is difficult to understand exactly what is meant by the words, which seem to refer to the place of ownership. There is no express mention of residence; and it would appear that the real ground of discrimination is rather the domicile than the residence of the owner; in which case on the authority of Davies v. Western Australia 2 C.L.R. 29, section 117 has no application.

On the whole I incline to the opinion that section 117 could not be successfully invoked in this case by the owner, resident in another State, of an oversea ship registered in Victoria; and I cannot advise that any unconstitutional practice on the part of the Victorian authorities has been shown.

[Vol. 6, p. 450]

(1)Opinion No.253.