Opinion Number. 400



Key Legislation

CONSTITUTION, ss. 2,51 (vi), 61 : NAVAL DEFENCE ACT 1910

The Minister for Defence

The Minister for Defence has asked for a memorandum setting out the measures that are considered necessary to give to the Naval Forces of the Commonwealth the international status of warships of a sovereign state.

Westlake, in the work on International Law, states in Part I, p. 164:

First, the nationality of a ship is that of the flag rightfully carried by her. If she is a public ship, that is if she is in the service of a state whether as a ship of war strictly so called, as a transport, or in any other capacity, and whether she is the property of that state or chartered by it, her flag is its military flag, and her right to carry it is vouched by the declaration of her commander and the production of his commission.

Hall, in his work on International Law, also says at p. 167 (4th edn):

Public vessels of the state consist in ships of war, in government ships not armed as vessels of war, such as royal or admiralty yachts, transports, or store ships, and in vessels temporarily employed, whether as transports or otherwise, provided that they are used for public purposes only, that they are commanded by an officer holding such a commission as will suffice to render the ship a public vessel by the law of his state, and that they satisfy other conditions which may be required by that law. The character of a vessel professing to be public is usually evidenced by the flag and pendant which she carries . . . On the other hand . . . the commission under which the commander acts must necessarily be received as conclusive, it being a direct attestation of the character of the vessel made by the competent authority within the state itself.

From these observations it is evident that a vessel to have the status of a warship must fly the national flag of a sovereign state, and the commanding officer of the vessel must have a commission from the proper authorities of the state appointing him to the command of the vessel.

Under the Constitution, (section 51 (vi)), the Commonwealth Parliament has power to make laws with respect to the naval and military defence of the Commonwealth and of the several States.

Acting on this power, the Parliament has passed the Naval Defence Act 1910 (No. 30 of 1910) which makes provision for the raising and maintaining of Naval Forces for the defence and protection of the Commonwealth and the States, the appointment of officers, the issue of commissions to officers, and the acquisition, construction, and maintenance of ships for naval defence.

Sections 2 and 61 of the Constitution are as follows:

2. A Governor-General appointed by the Queen shall be Her Majesty's representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

The Royal Letters Patent, dated 29 October 1900, constituting the office of Governor-General and Commander-in-Chief of the Commonwealth provide (inter alia) as follows:

Now know ye that We have thought fit to constitute, order, and declare, and do by these presents constitute, order, and declare, that [sic] shall be a Governor-General and Commander-in-Chief (hereinafter called the Governor-General) in and over Our Commonwealth of Australia (hereinafter called Our said Commonwealth), and that the person who shall fill the said Office of Governor-General shall be from time to time appointed by Commission under Our Sign Manual and Signet. And We do hereby authorise and command Our said Governor-General to do and execute, in due manner, all things that shall belong to his said command, and to the trust We have reposed in him, according to the several powers and authorities granted or appointed him by virtue of 'The Commonwealth of Australia Constitution Act, 1900', and of these present Letters Patent and of such Commission as may be issued to him under Our Sign Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign Manual and Signet, or by Our Order in Our Privy Council, or by Us through one of Our Principal Secretaries of State, and to such laws as shall hereafter be in force in Our said Commonwealth.

By virtue of the Constitution, the Letters Patent, and the Naval Defence Act, the Governor-General has power to commission ships of the Australian Naval Forces in the King's name.

Ships of the Australian Naval Forces having commissions issued by the Governor-General in the King's name, and flying the proper flag for such ships, should have the international status of warships of the British Empire.

The proper flag to be worn by Australian warships is a matter for the Imperial authorities because, if any flag other than the British naval flag is authorised, it would have to be notified by the Imperial Government to foreign nations in order to obtain recognition by them.

As the ships of the Australian Navy will be part of the King's Navy, there seems to be no reason why they should not wear the same flags as ships of the British Navy.

[Vol. 8, p. 240]