Opinion Number. 449

Subject

FLAGS WHETHER COMMONWEALTH MAY AUTHORISE USE OF AUSTRALIAN BLUE ENSIGN

Author
Key Legislation

MERCHANT SHIPPING ACT 1894 (IMP.), s. 73

Date
Client
The Minister for Defence

The Motor Boat Club of New South Wales has applied to the Minister for Defence for a warrant granting to the Club the privilege of flying the Australian Blue Ensign.

Certain correspondence has taken place in relation to the matter and the following passage occurs in a letter from Captain Haworth Booth in relation to the matter:

The right to fly the Blue Ensign is only granted by Admiralty. Applications for permission to wear the Blue Ensign by yacht clubs etc. in the distant dominions should be forwarded as proposed in your letter, viz. through His Excellency the Governor-General.

The Minister for Defence has forwarded the correspondence to me for an opinion as to whether the Commonwealth has not the power to deal with the matter.

It is stated in the file that under Imperial authority Government vessels of the Com-monwealth or States wear the Blue Ensign with certain distinguishing emblems ac-cording to the service in which employed.

Section 73 of the Merchant Shipping Act 1894 prohibits the use of any distinctive national colours (except the Red Ensign and the Union Jack with a white border) or of any colours usually worn by His Majesty's ships or any colours resembling those of His Majesty without warrant from His Majesty or the Admiralty under a penalty not exceeding £500. This section applies throughout the whole of the British Dominions.

The Blue Ensign is one of the national colours and falls within this section, and the Australian Blue Ensign is, I take it, the Blue Ensign with certain distinguishing emblems.

The authority of the Commonwealth to use the Blue Ensign for Commonwealth vessels would not extend to authorise the Commonwealth to permit vessels, other than Commonwealth vessels, to wear the Blue Ensign.

Any person who flies the Blue Ensign without the King's or the Admiralty's per-mission commits an offence under section 73 and may be prosecuted accordingly and any permission given him by the Commonwealth would not legally avail him as an answer to the charge.

I am of opinion therefore that the Commonwealth has no power to deal with the re-quest so far as to grant the permission asked.

[Vol. 10, p. 74]