I am asked to advise as to the constitutional power of the Commonwealth to exempt the North-West Coast from the coasting provisions of the Navigation Act.

I attach copy of an opinion given by me on 29 December 1919⁽¹⁾ on this question.

My view is that not every difference of treatment between ports is a preference within the meaning of section 99 of the Constitution.

The mischief aimed at by that section is unfair discrimination, giving one State or part of a State an advantage over another.

Not every difference of treatment would be a 'preference' within the meaning of the section. It is material, in this regard, whether the difference is unfair and arbitrary, whether it benefits one district at the expense of another, whether the discrimination is direct or only incidental, and so forth.

The direct exemption of a particular district from the coast-trade provisions might be construed as a preference.

But the new section 286, proposed by the draft Navigation Bill (copy attached), to be inserted⁽²⁾, is not I think open to objection.

I understand that what is desired is not to give a preference to North-West ports, but to relieve them from the unfair incidence of a uniform application of the coast-trade provisions.

This section would enable this to be done, either in the case of the North-West ports or any other ports similarly circumstanced. It would enable relief to be given on grounds which are neither arbitrary nor unfair; and I do not think that either the section or action taken in accordance with the spirit of the section, could be held to be unconstitutional.

[Vol. 16, p. 417]

(1)Opinion No. 946.

(2)By Section 105 of the Navigation Act 1920.