Opinion Number. 61



Key Legislation

CONSTITUTION, ss. 51 (i), 98


The questions asked relate to the powers of the Commonwealth as to:

  1. Regulation of gear.
  2. Liability of stevedores.

All shipping except that trading only within a State is subject to the trade and commerce powers.

All matters affecting ships and shipping including loading and unloading no doubt come within the very wide powers included under this head. Trade and commerce under section 98 includes navigation and shipping.

In the United States Courts cases relating to injuries to employees in ships and to those engaged in loading and unloading them are common. See cases quoted in the Federal Digest under the headings 'Master and Servant', pp. 5711-5715-5719; 'Shipping', pp. 8719 et seq., 8730-8742 etc.

There can be no doubt therefore but that the Parliament can legislate both in regard to gear, and to the liability of stevedores etc.

But this power so far from being exclusive of that of the States is concurrent and as a matter of practice appears to be much less often used by Congress than it is by the State legislatures which have in some respects an ample range of jurisdiction in this re-gard under what are sometimes named their 'police powers' which are those powers which belong to every State to protect life, liberty, property, public health and public morals.

There is now in existence in the several States of the Commonwealth legislation dealing with these subjects, namely (inter alia):

New South Wales: Employers' Liability Act of 1897, No. 28

Employers and Employees Act 1890, No. 1087; Part III

(made permanent by Act 1757)

Queensland: The Employers Liability Act of 1886
The Employers' Liability Act Extension Act (Seamen) 1888
South Australia: Employers Liability Act 1884, No. 325
Amendment 1889, No. 458
The Workmen's Compensation Act 1900, No. 739
Tasmania: The Employers' Liability Act 1895, No. 25
Amendment 1898, No. 27
Western Australia: The Employers' Liability Act 1894, No. 3.

It will be competent for the Commonwealth hereafter to pass uniform laws in this regard but it seems unlikely that this can be essayed for some time to come. It would re-quire in the first instance a careful enquiry into the practical working of the provisions already in force. At present these questions are only dealt with by the States.

[Vol. 1, p. 453]