China Ocean Shipping Co v South Australia

China Ocean Shipping Co v South Australia - [1979] HCA 57 - HCA 1979 case summary — Zoe

[25]

The history of the Constitutional Conventions leading to Federation is, I think, consistent only with a contemplation by those who were, in the last decade of the nineteenth century, concerned to bring about Federation that the establishment of the Commonwealth would not of itself involve either the ending of the application to Australia of existing Imperial laws or the denial to the Parliament at Westminster of continued competence to legislate for Australia. One instance will serve to make the point. When that decade's endeavours culminated in the Australian delegates' negotiations with the Imperial authorities in London in 1900 the form of covering cl. 5 of the delegates' proposed Commonwealth of Australia Constitution Bill was a point of contention, the matter in issue being whether the clause made it sufficiently clear that laws enacted by the Commonwealth Parliament would be "colonial laws" subject to the provisions of the Colonial Laws Validity Act, 1865 Imp. The Imperial Government wished to leave no "room for doubt as to the paramount authority of Imperial legislation", while, as Quick and Garran observe at p. 350 of their Annotated Constitution, the Australian framers of the Commonwealth Bill had not "thought necessary to declare that the Constitution should be read in conjunction with the Colonial Laws Validity Act. It was assumed, as a matter of course, that that would be done". The Australian delegates, determined to avoid any change, even to the covering clauses, of a document so long debated in Australia and which had just been approved by referendum of the Australian people, contended that the Bill in fact left no room for doubt: "The Commonwealth appears to the Delegates to be clearly a "Colony" and the Federal Parliament to be a "Legislature" within the meaning of the Colonial Laws Validity Act " they observed in their memorandum to the Colonial Office and of this they succeeded finally in convincing the Imperial Crown Law Officers. As Quick and Garran observe, at p. 352, "It may be assumed, therefore, that the Crown Law Officers were satisfied that the Colonial Laws Validity Act is applicable to the Constitution as it stands".

[33]

Had it been otherwise and had Imperial law in fact ceased to be law for Australia in 1901 or at some later date, as the defendant's submission would have it, there would have thenceforth been revealed some areas of law, formerly regulated by Imperial statute, in which no law existed. One instance among many is that of copyright. The considerable extent to which, until 1907, copyright protection in Australia depended upon Imperial legislation, and the inadequacy of the protection otherwise afforded by legislation of the various Australian colonies, later States, is succinctly described in Ch. VIII of the fourth edition of Scrutton's Law of Copyright. Only with the proclamation, in 1907, of the commencement of the Copyright Act 1905 did Commonwealth legislation enter the field. Another instance is provided by the Admiralty jurisdiction of Australian courts, a matter discussed in historical detail in the judgments of members of this Court in Reg. v. Bull [39] and earlier referred to in a number of the judgments of this Court, including those in McIlwraith McEacharn Ltd. v. Shell Co. of Australia Ltd. [40] and in the Asiatic Steam Navigation Case [41] , per Taylor J. Rather than multiply instances, it suffices to refer generally to Pt V of Keith's work and to Professor Castles' article cited above, especially at pp. 29-31, on which latter page he remarks that by 1901 "such British Acts as the Merchant Shipping Acts and the Fugitive Offenders Act were generally accepted as part of the legal framework of each of the Australian States, as indeed they are today". Admiralty jurisdiction also provides an instance both of express acknowledgement by Australia's own federal Parliament of the continued operation of Imperial statutes and of express reliance upon their operation: its Judiciary Act 1914 introduced s. 30A into the principal Act of 1903 so that this Court might thereby, in the words of the section, be "declared to be a Colonial Court of Admiralty within the meaning of the Imperial Act known as the Colonial Courts of Admiralty Act, 1890 ". When s. 30A was later repealed by the Judiciary Act 1939 this was not done by way of any repudiation of the continued operation of Imperial legislation but, rather, so as to ensure that by the declaration State courts had not unintentionally been deprived of that same Imperial jurisdiction - see generally Cowen: Federal Jurisdiction in Australia, 1st ed. (1959), pp. 61 et seq.

[55]

These descriptions of the basis for the decision in Gartland accord, I think, with what I have stated to be my understanding of it. It no doubt reflects what is now the orthodox view in Canada. That this may not always have been so is suggested by a reading of the earlier decision in Canada Steamship Lines Ltd. v. Emile Charland Ltd. [61] in which Demers L.J.A. held that s. 503 of the Merchant Shipping Act did not bind the Crown. That decision was not cited either in the judgments in the Supreme Court in Gartland or, so far as I am aware, in any succeeding case. Charland's Case was, however, discussed and distinguished when Gartland's Case was before Cameron J. at first instance in the Exchequer Court. His Honour's judgment is not reported but some reference to its contents appears in a note by Lalande in the Canadian Bar Review, vol. 38 (1960), p. 615. That note, while generally critical of the reasoning in Gartland's Case, both at first instance and in the Supreme Court, welcomes it as a matter of "policy", describing the Supreme Court's decision affirming Cameron J. as unexpected and as a deliberate policy decision. Mr. Lalande states that Cameron J.'s view that the limitation provisions might be invoked so as to limit a claim by the Crown was expressed to be founded upon a passage from Craies on Statute Law. This passage still appears in the seventh edition (1971), at p. 426, under the heading "Sovereign in private capacity" and however it now stands having regard to modern English and Australian authority (and it may well be that it stands unaffected, since it is confined to "the Sovereign looked upon as a mere individual", a capacity which, at least in Australia, the Sovereign will seldom assume), it appears to have little to do with the capacity in which the Crown was concerned in Gartland's Case. Mr. Lalande traces the passage in Craies to its acknowledged origin in Dr Wooddesson's Vinerian Lectures, where it was expressed to be so confined as to be quite in applicable to circumstances such as those with which Gartland's Case [62] was concerned.

[59]

No provision or enactment in any Act affects in any manner whatsoever, the rights of Her Majesty, her heirs or successors unless it is expressly stated therein that Her Majesty is bound thereby. This section would have been irrelevant to the decision in Charland's Case [64] since there it was the Imperial limitation provisions which were in question, to which no such interpretation statute would apply, Cameron J. indeed relied upon this fact in distinguishing Charland's Case and may therefore have treated s. 16 as having the effect of changing the common law rule, although it is not clear to me why it should be treated as having this effect. Section 16 was clearly applicable in Gartland's Case and if Locke J. shared the views of Cameron J. this may go far towards explaining the decision in Gartland . The other brief comment which should be made relates to Locke J.'s citation of the Nisbet Shipping Co. Case, which, it will be recalled, Cameron J. had also relied upon. It is cited for the proposition that a provision of the Canada Shipping Act operated to prevent "the exercise of the Royal prerogative". As I would understand that decision, which concerned the question whether the Crown might limit its liability by recourse to the limitation provisions of the Canadian Act, Viscount Simonds dealt with no question of the exercise of the prerogative: what the relevant section of the Canadian Act was held to do was to prevent the Crown from exercising, as could other shipowners, the statutory right to limit liability which the Act conferred. No prerogative right was in question but, rather, the right of the Crown to exercise a statutory right conferred upon all but from recourse to which the Crown was held to be excluded by a later section of the Act which said that the Act should not "except where specially provided, apply to ships belonging to His Majesty". The particular view taken by Locke J. of this decision may also have played some part in his decision in Gartland's Case. 1. [1933] Ex. C.R. 147.

[115]

By the Navigation Act 1912, the Parliament asserted its power under ss. 51 (i.) and 98 of the Constitution to legislate in terms quite inconsistent with the terms of the Merchant Shipping Act. In 1923, The Union Steamship Co. of New Zealand Limited challenged that power (Union Steamship Co. of New Zealand Ltd. v. The Commonwealth [23] ). Higgins J. said of the Navigation Act: " Parliament meant to occupy the whole field of agreements made in Australia, intended that its Act and Regulations should form a complete scheme " The only ground advanced for invalidity of the Navigation Act was its inconsistency with the Merchant Shipping Act. The Commonwealth asserted that the Commonwealth of Australia Constitution Act gave power to the Commonwealth Parliament to enact legislation contrary to the provisions of the Merchant Shipping Act in respect of matters within ss. 51 (i.) and 98 of the Constitution; that the Commonwealth of Australia Constitution Act, as a later Act, operated "as a repeal pro tanto of the earlier Act"; and that the Colonial Laws Validity Act did not operate on legislation passed under the Constitution. The High Court rejected the Commonwealth Government's argument and declared the Navigation Act invalid. The Parliament and the Government asserted that the Commonwealth's legislative power was in the Parliament, subject only to the Constitution, and not subject to earlier United Kingdom legislation (the Colonial Laws Validity Act and the Merchant Shipping Act). Although s. 51 of the Constitution provides that "the Parliament shall, subject to this Constitution, have power to make laws" with respect to enumerated subjects, the High Court has in effect implied into s. 51 a further limitation that the power was "also subject to the Merchant Shipping Act 1894 "; Dixon C.J. later stated in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [25] : " Before the adoption of the Statute of Westminster by Act No. 56 of 1942 the Merchant Shipping Act, 1894 was not a law which in its application to Australia the Parliament of the Commonwealth could affect. Nor could that Parliament make a law inconsistent with it "

[121]

Although the Constitution was brought into being by the Commonwealth of Australia Constitution Act, it is not of the same order as United Kingdom Acts generally. It provides for the legislative, executive and judicial powers of the Commonwealth and of the States. It is capable of amendment by the procedure in s. 128 which involves the Australian people, without reference to the United Kingdom. Since 1901, it could have been amended expressly to exclude (or enable Parliament to exclude) the operation of any United Kingdom Act. This feature has been ignored in the conclusion that until 1942, or even later, the Commonwealth of Australia was a colony subject to the legislative supremacy of the United Kingdom Parliament. The fact that constitutional alteration enabled Australia (without reference to the United Kingdom) to exclude any doctrine of supremacy of United Kingdom law (as incorporated in the Colonial Laws Validity Act, 1865 Imp. or otherwise) shows that the Commonwealth had no colonial status and that the legislative supremacy of the United Kingdom Parliament over Australia had ended. In my opinion, since 1901 no Act of the Australian Parliament has been or could be invalid except for inconsistency with the Constitution. The view that the Colonial Laws Validity Act and various other Imperial Acts applied notwithstanding the Constitution logically requires reading into s. 128 a limitation that the section does not permit any constitutional alteration inconsistent with those Imperial Acts. This would make even more nonsense of the Constitution than decisions such as those on the Colonial Courts of Admiralty Act. The result of this thinking is that if there were no Statute of Westminster and Statute of Westminster Adoption Act, Australia would be doomed indefinitely to live in a constitutional strait-jacket in which Australians could not use their representative legislatures to make laws contrary to nineteenth century laws for the regulation of colonies, and that the High Court would forever be a colonial court of Admiralty and the Parliament would be unable to confer on it the jurisdiction in admiralty and maritime matters which the Constitution plainly authorizes it to do.

[123]

There is, however, one most important element in it which, from a strictly constitutional point of view, has now, as regards all vital matters, reached its full development - we refer to the group of self-governing communities composed of Great Britain and the Dominions. Their position and mutual relation may be readily defined. They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. As former Prime Minister Hughes later insisted, the 1926 Conference did not raise the status of the Dominions because "equality with Britain had been for years firmly established". He cited the statements at the Imperial Conference of 1921 and the opening of the War Cabinet in 1919 showing that it was accepted then that the United Kingdom had no legislative supremacy over the Dominions (see Commonwealth Parliamentary Debates, vol. 172, pp. 1424-1430, on the Statute of Westminster Adoption Bill). Neither the Statute of Westminster nor the Adoption Act added to the status of Australia. The object of the Adoption Act was to deal with form, not substance, "to remove doubts as to the validity of certain Commonwealth legislation to obviate delays occurring during its passage and to effect certain stated purposes". The Adoption Act was regarded as "a practical necessity" in wartime because of decisions such as the Union Steamship Case [37] . These decisions make a mockery of the constitutional provisions vesting legislative power in the Commonwealth Parliament with respect to specific subjects, such as copyright, navigation and shipping, admiralty and maritime jurisdiction. The decisions that the Parliament could not legislate inconsistently with certain pre-1901 and, in some cases, post-1901 United Kingdom Acts meant that Parliament's legislative power was either non-existent or so restricted that it was useless on those subjects. These decisions contradict s. 1 of the Constitution which states that "the legislative power of the Commonwealth shall be vested in" the Parliament of the Commonwealth. The Court instead found the legislative power of the Commonwealth in the United Kingdom Parliament and, subject to that, in the Parliament of the Commonwealth. The role of the courts in taking such an approach to the Constitution is not consistent with the exercise of only the judicial power of the Commonwealth. It is rather an exercise of some purported additional imperial judicial power which enabled them to choose between laws of the Commonwealth made by Parliament under the Constitution and laws made by the United Kingdom Parliament, in such a way as to override the laws of the Commonwealth. In doing so, they treated Australia as inferior in status to the United Kingdom and subordinate to it. It is not easy to see how this was a duty or a right of those courts exercising only the judicial power of the Commonwealth under the Constitution. In another century, some English courts readily accepted the pretensions of the Stuart Kings; in this century, some Australian courts have just as readily accepted the United Kingdom Parliament's "divine right" to legislate for the Australian nation. 1. (1926) 37 C.L.R., at p. 412. 2. (1925) 36 C.L.R. 130. 3. (1929) 41 C.L.R. 1. 4. (1925) 36 C.L.R. 130.

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