QUARANTINE: NA V1GA TION AND SHIPPING WHETHER SYDNEY HARBOUR TRUST IS REQUIRED TO PROVIDE QUARANTINE MOORINGS FOR COMMONWEALTH: MEANING OF 'GOVERNMENT DEPARTMENT' IN STATE LEGISLATION
SYDNEY HARBOUR TRUST ACT 1900, ss. 34, 35
The Director of Quarantine has forwarded the following memorandum for advice:
The papers hereunder are forwarded together with a copy of the Sydney Harbour Trust Act 1900.
It is desired that you will be good enough to favour me with an opinion as to whether this Act imposes upon the Sydney Harbour Trust Commissioners the obligation of providing the moorings which are stated in the letter from the Secretary to the Department of Navigation dated the 24th March to be necessary. It will be noted that in the letter dated August 1st hereunder the Commissioners state that they are strongly of the opinion that moorings are necessary.
It would therefore appear from section 34 that the obligation of providing such moorings does rest with the Commissioners. Section 34 of the Sydney Harbour Trust Act 1900 provides as follows:
All mooring-chains laid down within the port and being the property or under the control of any Government department shall be transferred to and the property in the same is hereby vested in the commissioners, and the commissioners are hereby required to maintain the same in good order and repair, and also to remove the same to other more convenient situations, and to lay down additional mooring-chains as and when they may think desirable.
This section vested in the Commissioners all mooring-chains belonging to any Government Department of the State of New South Wales, and empowers the Commissioners to lay down additional chains, but I do not think that any obligation is cast upon the Commissioners to undertake the laying down of mooring-chains at the request of and for persons or bodies other than a Government Department of the State of New South Wales.
The existence of such an obligation is negatived by section 35 which is as follows:
After the commencement of this Act no mooring-chains shall be put down or placed within the port without the permission of the commissioners previously obtained; and every such mooring-chain so put down or placed shall be so continued only during the pleasure of the commissioners; and the commissioners may at any time, by giving one week's notice in writing, require such mooring-chains to be removed; and in case default is made in complying with such notice, such mooring-chain may be treated by the commissioners as a public nuisance, and removed accordingly.
This section implies that persons or bodies, other than the Harbour Trust or a Government Department of the State of New South Wales, may lay down mooring-chains, but the consent of the Commissioners must be first obtained. There is, however, no obligation on the Commissioners to lay down these mooring-chains or to attend to the upkeep thereof.
In my opinion, under the Sydney Harbour Trust Act 1900, the Sydney Harbour Trust Commissioners are under no obligation to lay down and keep in repair the mooring-chains in question, but the Commonwealth Quarantine Department may do so with the consent of the Commissioners.
[Vol. 14, p. 244]
- This date is attributed. This opinion is undated in the Opinion book, But its position, in relation to adjacent openions, suggests a date towards the end of January 1916.
- This opinion is unsigned in the Opinion Book, but it is attributed to Mr Garran.