The following draft minute relating to the application of the Navigation Act 1912-1919 to vessels carrying Papuan natives and trading within the Territory of Papua or between Papua and Australia has been forwarded to me with a request for advice as to whether, in view of the provisions of the Navigation Act 1919, the position, as regards intra-Papuan trade, as set out in the draft minute, is correct:

The questions raised in the Lieut.-Governor's memorandum of 19 November are, from the strictly legal point of view, fully covered by the opinions given by the Solicitor-General in his memoranda of 6.7.12 and 28.8.12⁽¹⁾ That is to say, the Commonwealth Navigation Act, not being expressed to extend to Papua, will not apply to vessels trading between Papuan ports. It would, however, apply, in Australia, to vessels trading between Papua and the mainland. Under the provisions of the Act the latter vessels would have to comply with Australian rates of wages and manning scales.

From the Department's point of view it may be stated, however, that it is recognised that the Act was never intended to exclude the Papuan native from employment as a seaman on vessels trading between Papua and Australia. The Department will, if so desired, refrain from taking arty action in the direction of enforcing the provisions as to manning scale, wages, and accommodation in respect of Papuans so employed, and will instruct its officers at Sydney and Queensland ports accordingly, but in this connection it must be pointed out that section 289 of the Act provides that a seaman on a ship engaged in any part of the coasting trade shall be entitled to and shall be paid for the period during which the ship is so engaged wages at the current rates ruling in Australia, and may sue for and recover those wages.

The Department would not, of course, have any power to prevent a Papuan seaman having recourse to the courts, under this provision, whilst his vessel was lying at an Australian port. As the Act does not run within the Territory, he would not be able to institute proceedings there.

As regards persons other than Papuans employed on the vessels calling at Australian ports, it would of course be necessary that the requirements of the Navigation Act as to wages etc. should be fully complied with.

The results of a tentative exemption of Papuans, as suggested, for a period of say six months, would afford valuable material upon which a decision could be come to as to the desirability of providing, in the Bill to amend the Navigation Act to be introduced into Parliament next year, for their specific and permanent exemption.

I adhere to the opinion expressed by me on 28 August 1912, viz.: that the effect of section 7 of the Navigation Act 1912-1919 is that ships trading in or with Papua are in the Commonwealth deemed to be engaged in the coasting trade.

The Act is not expressed to extend to Papua (Papua Act 1905, section 7) and the effect of section 7 of the Navigation Act as regards intra-Papuan vessels is that so long as they remain out of Commonwealth jurisdiction, they cannot be forced to comply with the Act (see section 378).

As regards the proposed exemption of vessels trading between Papua and Australia, I desire to point out that no power is given by section 7 to authorise this exemption. The second proviso to that section applies to Territories which are part of the Commonwealth.⁽²⁾ Papua is not a part of the Commonwealth.

[Vol. 16, p. 355]

(1)Opinion of 6 July l9l2 not found in the Opinion Books, but presumably this reference is to the memorandum set out in Hansard of 16 July 1912, the contents of which are repeated in endnote (l) to Opinion No. 981; opinion of 28 August 1912 [Vol.10, p. 337] not published in Vol.1.

(2)It would appear that Sir Robert Garran overlooked the amendment of section 7, effective 23 December 1919, by section 6 of the Navigation Act I919. As amended, the second proviso read:

‘Provided further that the Governor-General may by order declare that the carrying of passengers or cargo between ports in any Territory under the authority of the Commonwealth, or between ports in any such Territory and any other Australian ports, shall not be deemed engaging in the coasting trade’.