The following memorandum has been forwarded to me by the Comptroller-General of Customs with a request for advice:

From the attached cutting from the Sydney Sun of 31.3.20 it would appear that the application to ferry boats and limited coast-trade vessels running on the New South Wales coast of certain provisions, at least, of the Navigation Act will not be acquiesced in by the owners without a protest and probably action in the courts.

2. As regards Counsel's opinion quoted, it is not correct to say that: 'It has been erroneously assumed that Parliament possessed unlimited powers to make laws in respect of navigation and shipping . . . ' Section 2 of the Navigation Act clearly expresses the limitations upon the application of that Act. Paragraph 2 of Counsel's opinion agrees with section 2 referred to.
3. A memorandum by the Solicitor-General setting out the position as regards the legislative power of the Commonwealth as to navigation and shipping will be found in Hansard of 16.7.12, pp. 814-5.⁽¹⁾ The memorandum referred to does not, however, touch, except in an incidental way, upon the question dealt with in para. 4 of Counsel's opinion, i.e. the right of the Commonwealth to dictate conditions with respect of accommodation (presumably for officers and seamen) on ferries.
4. As this matter is of very great importance, it is suggested that the Attorney-General's Department be asked to advise as to whether, in regard to ferries plying in waters used by foreign and interstate shipping, there is power to enforce compliance

with section 136 (1) and to prescribe, under sections 135 (d) and 136 (4), the nature of the accommodation to be provided for officers and for the taking of meals by seamen and apprentices and for their sanitary and lavatory accommodation, including bathrooms.

5. Owing to some doubt as to the extent of the power of the Commonwealth to legislate in respect of accommodation on vessels of the class mentioned, no regulations on the question have up to the present been prepared. As it is very desirable (should it be decided that such a power exists and should be enforced) that proper notice be given to shipowners concerned, it is suggested that the Attorney-General's Department be requested to treat the matter as urgent.

Counsel's opinion as quoted in the press is as follows:

It has been erroneously assumed that Parliament possessed unlimited powers to make laws in respect of navigation and shipping, whereas section 51 of the Constitution distinctly limits such powers to shipping when engaged in trade with other countries.

Ferries which are in waters not used by foreign or interstate shipping are entirely out of Federal control.

Ferries in water which is used by foreign or interstate shipping would be amenable to Federal rule in respect of regulations made regarding navigation lights and equipment in so far as such requirements might affect the safety of other vessels using the same water.

The Federal authorities have no right to dictate conditions with respect of accom-modation on ferries.

Sections 135 (d) and 136 (1) provide or authorise the making, by regulation, of provisions for the accommodation on ships registered in Australia, of officers, seamen and apprentices. Counsel's opinion, as above quoted, is to the effect that these provisions, in so far as they apply to intrastate ferries, are ultra vires.

The power of the Commonwealth to legislate as to navigation is derived from sections 51 (i) and (xxxix) and 98 of the Constitution. From the combined opera-tion of sections 51 (i) and 98 the Commonwealth has express power to legislate as to interstate and foreign shipping and navigation.

Under section 51 (xxxix) the Commonwealth can legislate on matters incidental to that power.

I am of opinion that it is competent for the Commonwealth to enact legislation to secure the efficiency of intrastate shipping using highways common to interstate and foreign vessels and that legislation requiring suitable accommodation to be provided for seamen on intrastate vessels makes for such efficiency.

In this view the application of sections 135 and 136 to intrastate shipping is within the legislative power of the Commonwealth.

[Vol. 16, p. 467]

(1) The contents of the memorandum (not found in the Opinion Books) were disclosed by the Minister for Trade and Customs, Mr F.G. Tudor, in the course of his second reading speech, in the House of Representatives, on the Navigation Bill 1912 (enacted as the Navigation Ac: I912).

The memorandum reads:

‘The Commonwealth Parliament has power, under section 51 (i) of the Constitution, to make laws as to—

“Trade and commerce with other countries, and among the States”;

and by section 51 (xxxix) to make laws as to—

“Matters incidental to the execution of any power vested by this Constitution in the Parliament”. Section 98 declares that:

“The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping”.

In the Kalibia case, 11 C.L.R. 689, the High Court held that section 98 did not enlarge the ambit of the trade and commerce clause so as to extend it to shipping engaged in the domestic commerce of a State; and that therefore the Seamen’s Compensation Act, which was expressed to extend to such shipping, was ultra vires.

It must be taken, therefore, that over intrastate shipping—as such—the Commonwealth has no general power to legislate; but that does not mean that it has no power at all in regard to such shipping.

The Commonwealth has power to legislate as to interstate and external shipping, and as to matters incidental thereto.

This incidental power includes control of the highways on which such commerce is carried on. The Federal Parliament can prescribe rules for the use of those highways, to be obeyed by all ships, whether engaged in interstate or external commerce or not, so far as regards the safety of traffic on the highway, and its ordinary conduct. For example, it may provide for rules of the road, lights, and signals, certificated officers and sufficient crews, seaworthiness, etc. Some of the provisions of the Bill may appear to relate primarily not to the use of the highway, but to the protection of seamen, the comfort of passengers, etc. But it is very hard to say just how far the incidental power of the Commonwealth extends; where the regulation of the interstate highway ends and the immunity from Federal control begins.

Consequently, in case some provisions of the Bill, in their application to intrastate ships, may be held to be outside the power of Parliament, it is proposed to move an amendment to provide that where any enactment may be held to overstep the constitutional limits, it shall nevertheless be valid up to these limits.

Questions have arisen as to how far the legislative power of the Commonwealth is affected by the provisions of the Merchant Shipping Act.

This is discussed in my memorandum dated 15 January 1906, which forms Appendix E to the Report of the Commonwealth Royal Commission on Navigation [published as Opinion No. 229],

Before the Colonial Laws Validity Act 1865, there was much doubt as to the extent of the power of colonial legislatures to pass laws inconsistent with Acts of the British Parliament. That Act, however, settled the principle that a colonial law is not invalid by reason of repugnance to a British law unless the British law is by express words or necessary intendment made applicable to the colony; and that in that case the colonial law is invalid only to the extent of the repugnancy, and not otherwise.

Some parts of the Merchant Shipping Act are expressly made to apply to the whole of the British Dominions. Others are given a specified application beyond the United Kingdom. Others are not governed by any application clause at all. The result is that many difficulties arise as to the extent to which the different provisions of the Act are made applicable to the Dominions. It is not thought that in the Bill as it stands there is any repugnancy to British law which would invalidate any of its provisions’.