Hume v Palmer [1926] HCA 50

Hume v Palmer [1926] HCA 50 - HCA 1926 case summary — Zoe

[43]

of those rules. The rules prescribed by the Commonwealth law and the State law respectively are for present purposes substantially identical, but the penalties imposed for their contravention differ. Under the Commonwealth law a contravention caused by wilful default is an indictable offence, and for a contravention not so caused the penalty is a fine not exceeding £100. Under the State law the penalty is a fine not exceeding £50, and is imposed only in case of wilful default. Moreover, offences against the respective Acts are cognizable by different tribunals. The territorial area which is within the jurisdiction of the State Parliament is also within the jurisdiction of the Commonwealth Parliament, and the power of the Commonwealth Parliament to make laws with respect to naviga- tion and shipping extends to ships engaged in trade and commerce between the States (see Newcastle and Hunter River Steamship Co. v. Attorney-General for the Commonwealth (1)), which are also within the operation of the rules prescribed by the State Act, if valid. In these circumstances, it is, I think, clear that the reasons given by my brothers Isaacs and Starke for the decisions of this Court in Union Steamship Co. of New Zealand v. Commonwealth (2) and Clyde Engineering Co. v. Cowburn (3) establish that the provisions of the law of the State for the breach of which the appellant was convicted are inconsistent with the law of the Commonwealth within the meaning of sec. 109 of the Constitution and are therefore invalid. And art. 30 of Statutory Rules 1923, No. 100, in my opinion does not affect the matter. That article provides that "nothing in these rules shall interfere with the operation of a special tule, duly made by local authority, relative to the navigation of any harbour, river, or inland waters." Having regard to the preliminary statement in the New South Wales Regulations that "these rules shall be followed by all vessels upon the high seas and in all waters connected therewith, navigable by seagoing vessels " and to the terms of art. 30 of those rules, it appears to me impossible to regard art. 19 as a special rule relative to the navigation of a harbour. Nor do I think the expression "' duly made by local

[46]

The validity of the relevant provisions of the Commonwealth Act and the rules made under it was challenged on the ground that they were repugnant to the provisions of the Imperial Merchant Shipping Acts within the meaning of the Colonial Laws Validity Act and were therefore void and inoperative. The answer to this contention is to be found in sec. 735 of the Merchant Shipping Act 1894 and sec. 2 (2) of the Commonwealth Navigation Act. By sec. 735 of the Merchant Shipping Act 1894 it is provided that the Legislature of any British possession may repeal any provisions of that Act (except certain provisions not relevant to this case) relating to ships registered in that possession. The Commonwealth is a British possession (John Sharp & Sons Ltd. v. The Katherine Mackall (1) ), and its Legislature is therefore authorized to prescribe rules of conduct in relation to the navigation of ships registered in Australia, even if such rules be inconsistent with, and by implication repeal, provisions of the Merchant Shipping Act. The steamship Wear was at the relevant time registered in Australia, and rules relating to her navigation were therefore within the authority conferred on the Commonwealth Parliament by the Merchant Shipping Act. She was at the relevant time engaged in trade or commerce between the States, and this Court has decided in Newcastle and Hunter River Steamship Co. v. Attorney-General for the Commonwealth (2) that the Commonwealth Navigation Act, so far as it applies to ships engaged in inter-State or foreign trade, is a valid exercise of the legislative power of the Commonwealth, although such ships are included in the Act in one collective expression with ships not within that legislative power. In the circumstances of this case the operation of the Colonial Laws Validity Act is excluded by the authority conferred by sec. 735 of the Merchant Shipping Act, and the constitutional limitation of the power of the Commonwealth Parliament to make Jaws with respect to navigation is satisfied by the interpretation which this Court has put on sec. 2 (2) of the Navigation Act. It follows that the regulations for avoiding collisions contained in Statutory Rules 1923, No. 100, in their application to the navigation

[128]

authorities in some respects appears likely ; but in sec. 2, sub-see. 2, is a provision that the Act shall be read and construed subject to the Constitution and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for the sub-section, have been construed as being in excess of the power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. The sub-section was construed in the case of Newcastle and Hunter River Steamship Co. v. Attorney-General for the Commonwealth, and held to be a legislative declaration of the intention of Parliament that if valid and invalid provisions are found in the Act, however woven together, no provision within the power of Parliament shall fail by reason of such conjunction, but the enactment shall operate on so much of its subject matter as Parliament might lawfully have dealt with. The power given to the Federal authority is to make regulations for the prevention of collisions (Navigation Act, sec. 258). The Navigation (Collision) Regulations, made or purporting to have been made under that power, provide that they shall apply to all ships (British or foreign) wherever the Commonwealth has jurisdiction, whether upon the high seas or in waters connected therewith and navigable by sea-going vessels. Even coupled with the provisions of secs. 14 and 2 (1) of the Navigation Act, the generality of the power to make regulations, and the regulations actually made, may be in excess of the legislative power of the Commonwealth, but then comes sub-sec. 2, which ensures their validity to the extent to which they are not in excess of that power. Consequently, the Regulations are within power as applied to ships registered in Australia and engaged in inter-State or foreign trade, and cover the case now before the Court. It is unnecessary to consider whether the State Regulations are repugnant to the Imperial Regulations, for assuming them to have been lawfully passed under its constitutional powers, including in

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Before

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Judgment (136 paragraphs)