Kirmani v Captain Cook Cruises Pty Ltd - [1985] HCA 8 - HCA 1981 case summary — Zoe

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Kirmani v Captain Cook Cruises Pty Ltd

[1985] HCA 8

High Court of Australia|1981-08-09|Before: Dawson JJ

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Court

High Court of Australia

Decision date

1981-08-09

Before

Dawson JJ

Source

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Judgment (292 paragraphs)

[1]

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. Kirmani v Captain Cook Cruises Pty Ltd [No 1] [1985] HCA 8

[2]

ORDER Declare that Pt VIII of the Merchant Shipping Act 1894 Imp. is validly repealed in so far as it is part of the law of Australia by s. 104(3) of the Navigation Amendment Act 1979 Cth. Strike out par. 4 of the Notice of Grounds of Defence. Remit the matter to the District Court of New South Wales. Order that the costs of the plaintiff and the defendant be paid by the Attorney-Generals of the States of New South Wales, Western Australia and Queensland.

[3]

On 9 August 1981 the plaintiff, Mrs. Kirmani, while being carried on a cruise on Sydney Harbour in Captain Cook II, a vessel owned by the defendant company, sustained personal injuries which she claims were caused by the negligence of the defendant. She commenced an action for damages against the defendant in the District Court of New South Wales. The defendant, by par. 4 of its defence, claimed to be entitled to limit its liability under s. 503 of the Merchant Shipping Act 1894 Imp.. The plaintiff then moved in the District Court to strike out par. 4 of the defence on the ground that Pt VIII of the Merchant Shipping Act, in which s. 503 appears, was repealed on 31 January 1981, when s. 104(3) of the Navigation Amendment Act 1979 Cth ("the Amendment Act") came into force. In reply, the defendant gave notice that it would contend that s. 104 of the Amendment Act, on its true construction, does not repeal s. 503 of the Merchant Shipping Act in so far as that provision is part of the law of New South Wales and that in any case the Commonwealth had no power to repeal s. 503 in its application to the facts of the present case. The defendant company, which is incorporated in New South Wales, alleged that Captain Cook II was used only to carry passengers on cruises wholly within the waters of Sydney Harbour and was not a sea-going vessel within the meaning of the International Convention relating to the limitation of the liability of owners of sea-going ships signed at Brussels on 10 October 1957 ("the Convention"). A copy of the Convention is set forth in Sch. 6 to the Navigation Act 1912 Cth, as amended. At that stage of the proceedings this Court ordered that so much of the cause as involves the validity of the repeal of s. 503 of the Merchant Shipping Act by s. 104(3) of the Amendment Act be removed into this Court. The order for removal seems to be phrased rather too narrowly, since the case concerns the intended effect as well as the validity of s. 104 of the Amendment Act.

[22]

The word "authority" in this section must mean power or legislative competence. Dixon C.J. seems to have regarded the word as having that meaning in his reference to the provisions of s. 9(1) in Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. [10] . The provisions of s. 9(1) contain a clear indication that the Statute of Westminster was not intended to enlarge the legislative powers of the Commonwealth at the expense of the States. The introductory words of s. 9(1) show that that sub-section is intended to prevail over s. 2(2). The effect of the provisions in conjunction is that if, apart from s. 2(2), a matter is within Commonwealth legislative power (whether or not it is also within State legislative power), the Commonwealth Parliament may make laws on the matter and such laws will not be bad for repugnancy to the legislation of the United Kingdom or for extraterritoriality. If a matter is within the legislative power of the States, and not within the legislative power of the Commonwealth, s. 2(2) does not confer any power on the Commonwealth. If there were matters which are not within either Commonwealth or State authority, s. 9(1) would not apply, and it would then be a real question (although one of limited importance) whether s. 2(2) is an independent grant of power, or whether it does no more than strengthen existing powers. However I very much doubt whether that third position exists, i.e., whether there are matters which fall outside the authority of both the Commonwealth and the States. I rather think, as Barton J. said in Smith v. Oldham [11] , that "the Constitution in the distribution of powers between the Commonwealth and States embraces the whole range of legislative authority within the territorial limits of Australia": see also per Isaacs J. [12] . In my opinion, the provisions of s. 7 (which deals with Canada) and ss. 8 and 9 of the Statute sufficiently reveal that the intention of the framers of the Statute was to strengthen the existing powers of the Dominion Parliaments, but was not to affect in any way the relationship between the component entities of those Dominions which were federations - in other words, not to give to the Parliaments of the Commonwealth of Australia and of Canada increased powers at the expense of the States and the Provinces. A similar view appears to have been expressed by Menzies J. and Windeyer J. in Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. [13] .

[25]

The critical question in the present case is whether the relevant provisions of Pt VIII of the Merchant Shipping Act dealt with a matter within the authority of the States and, if so, whether it was nevertheless a matter within the authority of the Commonwealth, within the meaning of s. 9(1) of the Statute of Westminster. Part VIII deals with a number of matters but we are concerned only with s. 503 which provides for the limitation of liability in certain cases of (inter alia) injury caused to a person being carried on a ship whether British or foreign. It extends to the whole of Her Majesty's Dominions: s. 509. It accordingly applies to ships engaged in interstate or international trade and to ships which are navigated solely in the internal waters of a State. The limit of the liability of the owner of a ship for injuries sustained in the internal waters of a State is a matter within the competence of the legislature of the State. Of course laws on such a matter would be invalid if repugnant to an Act of the United Kingdom Parliament which extended to the State, since the provisions of the Statute of Westminster were not applied to the Australian States. Such laws would be invalid if repugnant to s. 503 of the Merchant Shipping Act unless passed in accordance with s. 735 of that Act which enables the legislature of any British possession, by any Act confirmed by Her Majesty in Council, to repeal, wholly or in part, any provisions of that Act (with an immaterial exception) in relation to ships registered in that possession, and which provides further that any such Act shall not take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed by the Act for the purpose. The reference to the legislature of a British possession does not now include reference to the Parliament of a Dominion (s. 5 of the Statute of Westminster) but it does include the legislature of a State. It was submitted on behalf of the Commonwealth that the requirements of confirmation and approval imposed by s. 735 mean that it is not within the authority of a State legislature to make a law to repeal s. 503. It was further submitted that ships can no longer be registered in a State, since the Shipping Registration Act 1981 Cth (which took effect on 25 March 1981) requires all Australian-owned ships to be registered under that Act (see s. 12 and that s. 735 therefore does not give any power to a State legislature.

[26]

The argument that the repeal of s. 503 is not a matter within the authority of the States because of the procedural requirements of s. 735 of the Merchant Shipping Act can be answered by saying that the requirement that there should be confirmation and approval before the law takes effect does not mean that the law deals with a matter outside the competence of the State legislature. On the contrary, it rather contemplates that the law is within the authority of the State. The argument that the matter is not within the authority of the State because s. 735 confines the State legislative power to ships registered in the possession, and because once the Shipping Registration Act took effect no ships would answer that description (assuming that to be the case), can be answered by pointing out that at the times when the Amendment Act was passed and the plaintiff sustained her injury the Shipping Registration Act was not in force. For that reason it is unnecessary to consider either the validity or the effect of that Act. However, there is a more fundamental answer to these arguments. It is that a matter is not outside the authority of the State simply because if, in the exercise of that authority, the legislature of the State passes a law which is repugnant to an Act of the United Kingdom which extends to the State, the result will be that the State law is, by reason of s. 2 of the Colonial Laws Validity Act, void to the extent of that repugnancy. The provisions of s. 2 of the Colonial Laws Validity Act do not narrow the ambit of the authority of a colonial legislature, although they may render void certain enactments made in the exercise of that authority. In any case, in my opinion, the scheme of the Statute of Westminster indicates that s. 9(1) is intended to refer to the ambits of the respective powers of the Commonwealth and the States, as existing at the time when the Statute was passed, and is not directed to the question whether a law within the ambit of those powers is or is not repugnant to a law of the United Kingdom.

[30]

There is an important distinction between, on the one hand, United Kingdom enactments which "apply to" or "extend to" a dependent or other territory as part of the law only of the United Kingdom (in that the operation of the law in the United Kingdom is predicated on some event, circumstance, person or thing identified by relation to that dependent or other territory), and, on the other hand, enactments which "apply to" or "extend to" a dependent or other territory as part of the law of that territory (rather than, or as well as, the law of the United Kingdom). This distinction was clearly recognized in the Statute of Westminster: see the third preamble and ss. 2, 4 and 10. We are now concerned, as the Statute of Westminster was concerned, with laws of the latter kind - laws that extended to a Dominion as part of the law of that Dominion. Obviously it was not intended by the Statute of Westminster to impair the power of the United Kingdom Parliament to make a law which would extend to a Dominion as part of the law of the United Kingdom (in the sense indicated in the passage from Halsbury ), or to enable a Dominion Parliament to repeal or amend an Act of the United Kingdom Parliament which was not part of the law of the Dominion. For example, the Commonwealth Parliament could not repeal the Merchant Shipping Act in so far as it was part of the law of the United Kingdom. The provisions of Pt VIII of the Merchant Shipping Act extended to the Australian States as part of the law of those States. I would repeat what I said in China Ocean Shipping Co. v. South Australia [16] : When Pt VIII of the Act of 1894, upon its enactment, became part of the law of South Australia and of the other Australian colonies, the provisions of that Part did not occupy a separate and exceptional position. They became part of the whole body of the law by which the colony was governed. They were just as much a part of the law of the colony as the principles of common law and equity, the statute law of England enacted before the colony was settled, and the enactments of the colonial legislature. That statement expresses what I believe to be elementary and fundamental law. I find it impossible to say that an Act which forms part of the whole body of the law of New South Wales is something external to Australia. 1. [1969] 1 A.C. 645, at p. 722. 2. (1979) 145 C.L.R., at p. 194.

[95]

The point is a plausible one. It would have been easy for the legislature to have defined the phrase in wider terms if that had been its intention. For example, if the phrase had read "part of the law of Australia" there could have been little foothold for the argument. When the Parliament of the Commonwealth speaks of "the law of the Commonwealth" it is natural to conclude that it is speaking of that body of law to which it is related as a legislature within the federation, a body of law which is identified by reference to the totality of its legislative powers. The phrase may be contrasted with that used to refer to the body of law within the federation which falls within the competence of or is the exclusive concern of the States, namely, "the law of the States". Furthermore, the context is consistent with the submission. The corollary to the repeal of the limited liability provisions of the Imperial Act is the implementation within Australia of the provisions of the International Convention relating to the limitation of the liability of owners of sea-going ships signed in 1957 ("the Convention"). Section 104(2) of the Act approves of the ratification by Australia of the Convention and s. 65 substitutes a new Pt VIII in the Navigation Act 1912 Cth, as amended, ("the Principal Act"). Division 1 of the new Part deals with the limitation of liability. Although s. 332(1) of the Principal Act expressly excludes the operation of s. 2 (which section limits the application of the Principal Act) in relation to the provisions of the division, thereby applying those provisions to intrastate ships, their operation is nevertheless confined to sea-going ships because the terms of the Convention are limited in that way. Section 333 of the Principal Act enacts that the provisions of the Convention are to have "the force of law as part of the law of the Commonwealth". It is common ground that the ratification of the Convention brings into being an external affair with the consequence that its implementation within Australia is within the legislative competence of the Commonwealth (s. 51(xxix)) notwithstanding that it applies to such intrastate ships as satisfy the description of "sea-going ships". It is of particular importance to note that the Act does not attempt to extend the provisions of the Convention to cover intrastate ships which do not "go to sea" (whatever that expression may mean). It therefore follows that if the wider construction is to be given to the phrase "part of the law of the Commonwealth" in s. 103 of the Act the necessary effect of the Act is to repeal the application of the Imperial Act to intrastate shipping other than sea-going ships without putting any protection at all in its place.

[119]

It is plain that the intention of ss. 735 and 736 of the Imperial Act was to accord to colonial legislatures a measure of freedom from the repugnancy fetter imposed upon them by s. 2 of the Colonial Laws Validity Act 1865. Subject to the stated conditions the legislature of a British possession was empowered by any Act to regulate the coasting trade of the possession and to repeal wholly or in part any provisions of the Imperial Act (other than Pt III) relating to ships registered in the possession. The relevant condition was, in the case of an Act to regulate the coasting trade, the inclusion of a suspending clause withholding its operation "until Her Majesty's pleasure thereon has been publicly signified" in the possession. In the case of a repealing Act, it was that the Act should not take effect at least "until the approval of Her Majesty has been proclaimed in the possession". Each of these conditions required the participation of the United Kingdom government in the ascertainment of Her Majesty's decision. But is the necessity of that participation sufficient to deny to the subject-matter of the law the description that it is a "matter within the authority of" the States within the meaning of those words in s. 9(1) of the Statute? In my opinion, that question should be answered in the negative. The important consideration is that a State legislature is empowered to enact legislation on these matters. As a matter of constitutional theory and practice, the Queen herself is an essential component of the legislative process. The existence of a condition precedent to the operation of State legislation requiring a decision by Her Majesty involving the participation of the United Kingdom government does not deny the authority conferred on the State legislature. Furthermore, until the so-called colonial links between the States and the United Kingdom government are finally severed, that government is necessarily involved in the participation by Her Majesty in the government of the State. That participation is a feature of the constitutional authority of the State rather than a denial of it. There are no doubt many examples of legislation being enacted by State legislatures pursuant to the authority given by ss. 735 or 736 of the Imperial Act: cf. Western Australian Marine Act 1948 W.A., s. 2; Western Australian Marine Act 1982 W.A., ss. 2, 135(2). In my opinion, therefore, the conclusion on this aspect of the argument should be that legislation with respect to intrastate shipping which does not go to sea satisfies the description in s. 9(1) of a law "on any matter within the authority of the States of Australia".

[123]

The second principal submission of the Commonwealth is that in any event the repeal throughout Australia of Pt VIII of the Imperial Act is a matter within the authority of the Commonwealth because it is an exercise of the power with respect to external affairs. As I have said, it is common ground that the ratification of the Convention brings into being an external affair which the Parliament may implement within Australia. The subject-matter of that affair is the limitation of liability of sea-going ships. It is undoubtedly incidental to the implementation of the Convention within Australia that the Parliament expressly repeal the operation within Australia of Pt VIII of the Imperial Act with respect to sea-going ships, because Pt VIII deals expressly and inconsistently with the same subject-matter. Indeed, if there was no mention in the Act of Pt VIII its provisions to that extent would be repealed by necessary implication. The question at issue boils down to this: does the power to implement the Convention encompass incidentally the power to repeal the operation of Pt VIII with respect to all shipping in Australia, including intrastate shipping which is not sea-going? In my opinion, the answer is clearly no. It may be true that only a comparatively small segment of Australian shipping falls outside the Convention. It may also be true that the effect of a complete repeal is not attended with serious long-term consequences because one result of the repeal would be to make it easier for State legislatures to fill the void; indeed, as to sea-going intrastate shipping, the provisions of s. 332(3) of the Principal Act encourage them to enact at least some local laws. In this respect, the Parliament may have performed a service for the States by the convenient removal of an anachronistic piece of Imperial legislation which affected their legislative powers. But the fact remains that there is a clear distinction between sea-going shipping and other shipping. Legislation which has the effect of removing an existing protection over the latter category without substituting any protection at all is clearly not incidental to the removal of existing protection over the former category in order to substitute more adequate protection. I would echo the words of Kitto J. in Airlines of N.S.W. Pty. Ltd. v. New South Wales [No. 2] [47] :

[133]

The 1930 Conference was preceded by a Conference on the Operation of Dominion Legislation and the Merchant Shipping Act in 1929. That Conference, as its Report states (par. 50), "proceeded on the basis that effect can only be given to the principles laid down in the Report of 1926 by repealing the Colonial Laws Validity Act, 1865, in its application to laws made by the Parliament of a Dominion". The Conference recommended "that legislation be enacted declaring in terms that the Act should no longer apply to the laws passed by any Dominion". The Report of the 1929 Conference was approved by the 1930 Conference and that recommendation was carried into effect by the enactment of s. 2 of the Statute. Before that section came into effect, the Colonial Laws Validity Act 1865 Imp. had fettered the exercise of legislative power by the legislatures of the several Dominions, the States of Australia and the Provinces of Canada. That Act had given to the laws of a colonial legislature the operation and force of sovereign legislation except to the extent to which those laws might be repugnant to the provisions of any Act of the Imperial Parliament extending to the colony by express words or necessary intendment or to the provisions of any order or regulation made under the authority of such an Act: ss. 1, 2 of the Colonial Laws Validity Act; and see Phillips v. Eyre [50] . But, as Professor K. C. Wheare observed, "while the Act was passed to extend rather than to restrict the powers of colonial legislatures, it reasserted, at the same time, in statutory form the overriding supremacy of the Imperial Parliament": The Statute of Westminster and Dominion Status, 5th ed. (1953), p. 79. The supremacy of Imperial Acts, orders and regulations which extended to Australia over legislation enacted by any of the legislatures in Australia was of particular importance to questions of maritime law and jurisdiction. Those matters were thought to be exclusively of Imperial concern apart from "a minute power of local regulation" left to the colonies by ss. 735 and 736 of the Merchant Shipping Act: see Professor H. A. Smith, The Legislative Competence of the Dominions, Law Quarterly Review, vol. 43 (1927), pp. 383, 384. When the Commonwealth was established, the powers of the Parliament were conferred subject to the application of the Colonial Laws Validity Act: Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 350. Stephen J., whose judgment in China Ocean Shipping Co. v. South Australia [51] examines the significance of the Colonial Laws Validity Act in our constitutional development, said that the continued application of that Act to federated Australia ensured "the supremacy of Imperial laws expressed to apply to Australia over any legislation enacted by the Parliament of the Commonwealth repugnant to those Imperial laws" [52] . In Union Steamship Co. of New Zealand Ltd. v. The Commonwealth [53] , the supremacy of Imperial law extending to Australia over federal law was assumed and accordingly the conditions governing the engagement and discharge of seamen imposed by the Navigation Act 1912-1920 Cth and regulations made thereunder were held to be repugnant to the provisions of the Merchant Shipping Acts, and to be void and inoperative. It seems that the maritime laws of the Canadian Parliament were also regarded as subject to the doctrine of repugnancy to the Merchant Shipping Act. In Canadian Pacific Railway Co. v. The Steamship "Storstad" [54] an argument supporting the validity of a 1906 Canadian law altering the Merchant Shipping Act limitation on ship-owners' liability was abandoned before the Judicial Committee.

[139]

it has never been doubted that, when a colony is acquired or annexed, following on conquest or settlement, the Sovereignty of the United Kingdom Parliament extends to that colony, and its powers over that colony are the same as its powers in the United Kingdom. In British constitutional theory the United Kingdom Parliament has not been divested of those powers. In British Coal Corporation v. The King [56] , the Judicial Committee said that the power of the Imperial Parliament to pass on its own initiative any legislation extending to a Dominion (in that case, to Canada) remained in theory unimpaired by the Statute. The 1929 Conference saw the continuance of this power to be a problem in the way of achieving equality between Great Britain and the Dominions. Paragraph 54 of the 1929 Report read: With regard lastly to the problem which arises from the existence of a legal power in the Parliament of the United Kingdom to legislate for the Dominions, we consider that the appropriate method of reconciling the existence of this power with the established constitutional position is to place on record a statement embodying the conventional usage. We therefore recommend that a statement in the following terms should be placed on record in the proceedings of the next Imperial Conference - "It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any Dominion otherwise than at the request and with the consent of that Dominion." We further recommend that this constitutional convention itself should appear as a formal recital or preamble in the proposed Act of the Parliament of the United Kingdom. The recommendation was adopted at the 1930 Conference and carried into effect in the third preamble of the Statute. A clause was also recommended for enactment in the body of the Statute with a view to resolving the problem: 1929 Report, par. 55; Imperial Conference, 1930 - Summary of Proceedings, Cmd. 3717, p. 18. That clause is to be found as s. 4 which provides: No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. 1. [1969] 1 A.C. 645, at p. 722. 2. [1935] A.C. 500, at p. 520.

[143]

The phrase "part of the law of the Dominion" or "part of the law of that Dominion" is to be found in ss. 2(2), 4 and 10(1) of the Statute. In each case the phrase is descriptive not of a law made by a Dominion Parliament but of an Imperial law having a local operation. An Imperial law extending to Australia or to a State or part of Australia is part of the law of Australia because it operates as part of the body of law in force in Australia. It is immaterial that the Commonwealth Parliament could have made a law with respect to the same matter. It is not the subject-matter of the Imperial law but its recognition as a law in force in Australia which determines whether it is "part of the law of the Dominion". The source of the law - whether the Queen or King in Council, the Imperial Parliament, the Parliament of the Commonwealth, the Parliaments of the Colonies or States or the common law - is not the criterion. "The law of the Commonwealth" is an expression of wider denotation than "a law of the Commonwealth" which denotes a law made in exercise of Commonwealth constitutional power: Spratt v. Hermes [58] . Though an Imperial law is not a law of the Commonwealth, it is part of the law of the Commonwealth if it is part of the law in force in the Commonwealth. It is not essential that the law be in force in all parts of Australia. "The law of Australia", as Starke J. said in McArthur v. Williams [59] , "includes the law of all its component parts." An Imperial law which extends to a State or part of Australia is part of the law of the Commonwealth, recognized by all Australian courts and given effect according to its tenor. The power of repeal and amendment could hardly have been granted to the legislatures of the Canadian Provinces if an Imperial law that operated only within a part of a Dominion did not fall within the scope of the power: see s. 7(2). In my opinion, the expression "part of the law of the Dominion" brings within the scope of the power any Imperial law in force in any part of a Dominion. If the power conferred on the Parliament of a Dominion falls short of a power to repeal or amend any Imperial law extending to that Dominion, the supremacy of the Imperial Parliament over the laws of that Dominion would, to that extent, be retained: see Re Constitution of Canada [60] .

[151]

Moore's Case was concerned with the powers of the Oireachtas, the Irish Parliament, under the Irish Constitution. The Oireachtas had purported to abolish appeals to the Privy Council. In Ireland, by a ruling of the Supreme Court, it had been held in substance that the Irish Constitution was subject only to Irish law and that its provisions were outside the authority of the Imperial Parliament, but in the Judicial Committee their Lordships decided the case on the footing that the validity of the abolition of Privy Council appeals depended upon the operation of the Irish Free State Constitution Act 1922 Imp. and the Statute. The Oireachtas had been given "sole and exclusive power of making laws for the peace, order and good government of the Irish Free State" and a limited power to amend the Constitution. The Irish Free State Constitution Act gave the force of law to a Treaty between Great Britain and Ireland, and Art. 2 of that Treaty had been construed as ensuring that a right to petition for special leave to appeal to the Privy Council should be retained: Performing Right Society v. Bray Urban District Council [66] . That right was provided for in Art. 66 of the Constitution. The Constitution had been fashioned by the Irish Dail and expressed as a schedule to a Constituent Act which in turn was embodied in the Imperial Act and given the force of an Imperial law. The Constitution could be amended by the Oireachtas but, as their Lordships held, the Irish Free State Constitution Act conferred no power to amend the Constitution otherwise than in accordance with the terms of the Treaty. It followed that the Imperial Act could not support an amendment of the Constitution which would abolish all appeals to the Privy Council. However, the Oireachtas passed a law (Act No. 6 of 1933) purporting to amend the Constituent Act and the Constitution by repealing the provisions limiting its power to amend the Constitution; then the Oireachtas passed the law purporting to amend Art. 66 of the Constitution by abolishing appeals to the Privy Council (Amendment No. 22 of 1933). Their Lordships upheld the validity of the law repealing the provisions limiting the power to amend the Constitution so that the law abolishing appeals was then supportable as an amendment of the Constitution. Sir Owen Dixon observed that, unless some other power of amendment existed, the Oireachtas "had attempted to enlarge its own power of amendment by exercising that very power. On this view it had induced the stream to flow above the source." But their Lordships did not uphold the validity of Act No. 6 of 1933 and Amendment No. 22 of 1933 as an exercise of the power of amendment conferred upon the Oireachtas by the Irish Free State Constitution Act. Had they done so, Sir Owen Dixon's observation would have been justified. Their Lordships upheld the validity of those Acts under another power. Their Lordships found in s. 2 of the Statute a new unlimited power to amend Acts of the Imperial Parliament of which the Constituent Act, containing the Constitution, was one. This power was different from and additional to the power conferred by the Irish Free State Constitution Act. Viscount Sankey L.C., delivering the judgment of the Judicial Committee, said [67] :

[166]

If that hypothesis were relied on, the Statute would stop short of authorizing the making of laws in exercise of the powers conferred by s. 2 on matters which are not within the authority of the States unless the matters were within Commonwealth authority. As the formula used in s. 9(1) is used also in s. 9(2) to connote the kinds of laws which the United Kingdom Parliament may enact to extend to Australia without the concurrence of the Parliament and government of Australia, the hypothesis would extend the exemption given to the United Kingdom Parliament from compliance with the concurrence requirements imposed by the Statute (ss. 4, 9(3)). A construction which relies upon the hypothesis would give s. 9(1) a familiar operation, eliminating the first qualification and restricting the grant of power under the Statute to the making of laws on matters within the existing heads of Commonwealth constitutional power. The validity of a law made in purported exercise of the power conferred by the Statute would depend upon the familiar process of characterization - an examination of the operation of the law and its connexion with a constitutional head of power. Under s. 9(2) the inquiry would be whether the proposed Imperial law extending to Australia would have the requisite connexion with a constitutional head of Commonwealth power. A construction of s. 9 which relies on the hypothesis would limit the operation of the Statute to the buttressing of existing Commonwealth powers: the Statute strikes the fetter of repugnancy from the exercise of Commonwealth legislative power, the United Kingdom Parliament abandons (so far as it can), in the absence of Commonwealth concurrence, its power to make laws on matters within Commonwealth power, and any constitutional practice which had led the Imperial Parliament before 1931 to forbear from making laws extending to Australia without the concurrence of the Parliament or government of Australia is continued. But the s. 2 grant of power would go no further.

[178]

Although it is unnecessary to consider the validity of an amending law for the purposes of the present case, it is desirable to refer briefly to the operation of an amending law made by the Commonwealth Parliament in order to see whether an amending law satisfies or may satisfy the first qualification in s. 9(1). Whether the first qualification is satisfied by an amending law depends upon the characterization of the matter on which the law is made and upon the authority of the States to make a law on that matter once the amending law comes into force. An amending law takes its character in part from the amended law and in part from its own terms. If it makes a substantial amendment, it may not be correct to describe the amending law as a law on the same matter as the matter on which the amended law was made. But if the matter on which the amending law is made is properly identified as the matter on which the amended Imperial law was made, the Colonial Laws Validity Act does not exclude the matter from the authority of the States once the amending law comes into force. An amending law, like a law of simple repeal, repeals pro tanto an inconsistent Imperial law. Unlike a law of simple repeal, however, it also speaks to the future: its amending terms operate prospectively. As a law which simply repeals an Imperial law extending to a State is a law on a matter which, until the repealing law comes into force, is not within the authority of the States, the repealing law cannot satisfy the first qualification; but the same cannot be said of an amending law. If, upon an amending law coming into force, the matter on which it is made comes within the authority of the States, the operation of the amending provisions must be supported, if at all, by a constitutional head of Commonwealth power. If the matter on which such an amending law is made is not a matter within the authority of the Parliament or government of the Commonwealth, the amending provisions satisfy the first but do not satisfy the second qualification in s. 9(1) and find no support in s. 2 of the Statute. Unless the repealing provisions of such an Act were severable, the Act would be wholly invalid.

[180]

It remains to apply these principles to s. 104(3) of the Navigation Amendment Act. Being a provision which simply repeals Pt VIII of the Merchant Shipping Act, its enactment is authorized by the Statute unless the States have exceptional authority to repeal or amend Pt VIII. That authority is said to reside in ss. 735 and 736 of the Merchant Shipping Act. Section 735 gives conditional authority to the legislature of a British possession to repeal, wholly or in part, certain parts including Pt VIII of that Act, relating to ships registered in that possession. Section 736 gives the legislature of a British possession conditional authority to regulate the coasting trade of that possession. Assuming that a State is, for the purposes of ss. 735 and 736, a "British possession", the power of a State legislature to repeal Pt VIII or to regulate the coasting trade of the State by amending the provisions of Pt VIII is subject to the condition that the State Act should be confirmed by Her Majesty in Council (s. 735) or that it should contain a suspending clause providing that the Act should not come into operation until Her Majesty's pleasure thereon had been publicly signified in that State: par. (a) of s. 736. The conditions imposed by ss. 735 and 736 respectively are no mere matter of procedure. The Imperial government's concurrence is required before a State Act can repeal any of the provisions of the Merchant Shipping Act or regulate the coasting trade of a State. Confirmation by Her Majesty in Council as required by s. 735 is not merely the Royal assent which may be a step in a State legislative process. What is required is the confirmation of an Act already passed and assented to. Confirmation is to be given on advice of the Ministers of the United Kingdom government. Clearly, the requirement of confirmation limits the authority of the State Parliament. It may be right to describe a signification of pleasure under s. 736 that a State Act should come into operation as a legislative act: cf. Reg. v. Burah [8] . Whether that description is accurate or not, the authority of a State Parliament is not itself sufficient to permit the enactment of a law regulating the coasting trade of the State. An attempt on the part of Queensland to exercise the power conferred by s. 736 of the Merchant Shipping Act without satisfying the condition failed: see Reg. v. Commissioner for Transport; Ex parte Cobb & Co. Ltd. [9] , esp. per Wanstall J. [10] . Sections 735 and 736 did not confer on the States authority to repeal or amend Pt VIII of the Merchant Shipping Act. Those sections required the concurrence of the Imperial government signified in the manner specified in the conditions set out in ss. 735 and 736. When s. 104(3) of the Navigation Amendment Act 1979 was enacted the matter on which that law was made was not within the authority of the States.

[187]

The references in sub-s. (2) to a "Dominion" were to each of the six member countries of the British Commonwealth of Nations (as it was then commonly described) which had attained the status of "self-governing Dominions". Those six countries were New Zealand, South Africa, the Irish Free State and Newfoundland, which had each adopted a unitary system of government, and Canada and Australia, which had each adopted a federal system. The scheme of the Statute reflects the course of proceedings at the plenary meetings of the 1929 Imperial Conference. It is that the general substantive provisions are contained, in words applicable to all of the Dominions, in the first three operative sections (ss. 2, 3 and 4) while the remaining operative sections deal with "certain subjects" in respect of which "special provision" needed to be made, namely, shipping and admiralty matters (ss. 5 and 6) and matters in which considerations "peculiar" to one or more of the Dominions called "for special treatment" (ss. 7, 8, 9 and 10): see, generally, Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929 (1930), Cmd. 3479, especially par. 57. In that context, one would expect the provisions of s. 2 of the Statute, including the final words "the law of the Dominion" which refer distributively to the law of any Dominion whose Parliament's powers are in question, to have a corresponding meaning in relation to each of the six Dominions. The obvious meaning, when the words are used to refer indifferently to Dominions with unitary and federal systems of law, is that which encompasses the whole system of municipal law of the particular Dominion seen as a territorial community. The question arises whether there is anything in the provisions of s. 2(2) or in the other provisions or general context of the Statute which warrants departure from that prima facie connotation either in the general construction of the words or in the application of them to the Commonwealth of Australia.

[190]

Nor is the distinction between "federal" law and "State" or "Provincial" law one that is really appropriate to be applied to the construction of the general provisions of s. 2(2). The general provisions of the Statute of Westminster emerged, as the Statute's recitals makes clear, from the Imperial Conferences of 1926 and 1930. Great Britain and the six Dominions which participated in those Conferences did so on the basis that they were all full members of the British Commonwealth of Nations and were, in the words of the Report of its Inter-Imperial Relations Committee which were adopted by the 1926 Conference, "autonomous Communities equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs": Imperial Conference, 1926 - Summary of Proceedings (1926), Cmd. 2768, p. 14. By 1919, when she had been accepted as a member of the League of Nations, Australia had attained the practical status of a full member of the international community. The same comment can be made of at least Canada, New Zealand and the Union of South Africa. The representation of the two federations, Australia and Canada, at the Imperial Conferences was not a schizophrenic representation limited to so much of the personality of the nations as could be stamped with a federal, as distinct from a State or Provincial, aspect. It was a representation of the "autonomous Community" in its full international personality and capacity. Except in so far as particular problems relating to those Dominions which were federations were expressly raised in the discussions or records of the Conferences and were the subject of "special treatment" in the Statute, no distinction was drawn either at the Conferences or in the Statute between those Dominions which were federations and those Dominions which were not. In that context, the references in the general provisions of s. 2 of the Statute to the "law of the Dominion" were references to the whole body of the law of the territorial community or nation. That this is so is confirmed by consideration of the other provisions of the Statute in which the phrase "law of the Dominion" is used. To the extent that they are of assistance, the special Australian sections of the Statute support the conclusion that the phrase was used in that sense in relation to Australia.

[192]

The origins of the special Australian (ss. 8 and 9) and Canadian (s. 7) sections were quite different from those of the general clauses (ss. 2, 3, 4, 5 and 6) in that they lay largely in the Dominion to which they related: see, e.g., Imperial Conference, 1930 - Summary of Proceedings (1930), Cmd. 3717, pp. 17, 19. For that reason, less weight can be placed, in construing the general clauses, upon any assistance that can be obtained from the special Australian and Canadian sections than would have been the case if the general and special sections had developed together as a coherent whole. Subject to that qualification, the provisions of s. 9 protecting the position of the Australian States support, in a number of distinct ways, the conclusion that the words "law of the Dominion" in s. 2(2) should be construed, in their application to Australia, as a reference to the whole system of law operating in this country. One of those ways is that the provisions of s. 9, like those of s. 7, demonstrate that where it was intended to draw a distinction between "federal" and "State" or "Provincial" laws, the distinction was drawn by the use of express language. Another is that the section's confinement of federal powers to protect the legislative powers of the States did not take the form of a mere exclusion of anything not within "federal powers" or "federal law" under the internal constitutional division of governmental power and function. It took the form of an exclusion only of those matters which could be identified as being positively "within the authority of the States of Australia" and "not within the authority of the Parliament or Government of the Commonwealth" (s. 9(1)) with, in the case of s. 9(2), a further restriction on the ambit of the exclusion by reference to the established practice before the commencement of the Statute as to the circumstances in which the United Kingdom Parliament would make a law which extended to Australia without "the concurrence of the Parliament or Government of the Commonwealth". Yet another way in which the provisions of s. 9 support the view that the words "law of a Dominion" in s. 2(2) should be so read is that, if the words are given the restricted meaning of referring only to "federal" law, the provisions of s. 9 are largely surplusage, at least in their application to s. 2, since a repeal or amendment of an Imperial Act in so far as it was part of "federal law" under the constitutional division of legislative powers would never be a law on a matter within the authority of the States and not within the authority of the Commonwealth Parliament.

[196]

There are three main considerations favouring the broader view that the provision constituted a grant of an independent legislative power. The first is that, as a matter of language, that would appear to be the more obvious meaning of a provision that the "powers" of a Parliament "shall include" an identified legislative "power". The second is that the purpose served by the Statute was to assimilate "legal relationships to existing political relationships" (see the comment of Evatt J. in the Australian Law Journal, vol. 10 Supp. (1936), p. 107) by providing legislative acknowledgment and enactment of the concept of the equality of the Dominions with the United Kingdom and with one another which had been formulated at the Imperial Conferences of 1926, 1929 and 1930. In that context, the provisions of s. 2 should, in accordance with the settled rules of construction applicable to such an "organic statute" and the "spirit, with which the preamble to the Statute of Westminster is instinct" (sic), be construed so as to accord "the widest amplitude of power" to the Dominion Parliaments: per the Privy Council, Attorney-General (Ontario) v. Attorney-General (Canada) [12] . The third is a matter to which reference has already been made in considering the meaning, in its application to Australia, of the phrase "law of the Dominion" in s. 2(2) of the Statute. It is that, to the limited extent that they are relevant, the provisions of s. 9(1) of the Statute support the view that the legislative power conferred by s. 2(2) is not confined merely by reference to the identified heads of legislative power conferred upon the Parliament of the Commonwealth under the Constitution in that s. 9(1) is framed on an assumption that the legislative powers conferred by the substantive provisions of ss. 2 and 3 will include power to make laws on at least some matters not otherwise "within the authority of the Parliament or Government of Australia" under the constitutional division of powers. Unless that assumption be correct, the confinement of the exclusion in s. 9(1) to "any matter within the authority of the States of Australia" and the reverse approach to the constitutional division of legislative power which it involves would be without content or reason in so far as the provisions of s. 2(2) are concerned.

[197]

The main considerations favouring the narrower view flow from the legislative scheme which can be discerned in the overall provisions of s. 2. The limited doctrine of repugnancy embodied in s. 2 of the Colonial Laws Validity Act 1865 Imp. had been seen as a fetter or "restriction on the exercise" of the legislative powers which the Dominion Parliaments enjoyed under their various constating instruments: see, e.g., Sir Owen Dixon, The Statute of Westminster 1931, Australian Law Journal, vol. 10 Supp. (1936), p. 101. Section 2(1) of the Statute of Westminster removed that fetter or restriction in relation to any future law made by the Parliament of a Dominion by providing that the Colonial Laws Validity Act should not apply to any such law. The negation of the general doctrine of repugnancy with respect to any future law of a Dominion Parliament which was contained in s. 2(2) ensured that s. 2(1) did not have the effect of reinstating some wider doctrine of repugnancy such as that which had been perceived by Boothby J. in his "career of destruction" on the South Australian Supreme Court as applying prior to 1865: see Maughan, The Statute of Westminster, Australian Law Journal, vol. 13 (1939), p. 153, and the Report of the 1929 Conference, par. 51. In that context, it is arguable that the second part of s. 2(2) should properly be seen as intended to do no more than reinforce the provisions of s. 2(1) by stating in positive form that existing legislative powers of the Parliament of a Dominion would no longer be confined by an inability to enact legislation which would previously have been invalid solely on the grounds of repugnancy. Apart from the above-mentioned considerations favouring the broader approach, a problem with any such argument is that there is authority to support the view that, notwithstanding the use of the words "absolutely void" in s. 2 of the Colonial Laws Validity Act, the doctrine of repugnancy should be seen as concerned with the operation or effectiveness of laws and not with legislative capacity: see Co-operative Committee on Japanese Canadians v. Attorney-General (Canada) [13] but cf. In re Reg. v. Marais; Ex parte Marais [14] ; Attorney-General (Q.) v. Attorney-General (Cth) [15] . Another related, and perhaps more soundly based, problem is that the conferral of the power to "amend or repeal" the local operation which an "existing or future" Imperial Act was, upon its proper construction, intended to have, transcended the mere negation of the doctrine that local legislation was void and inoperative to the extent that it was repugnant with the intended local operation of United Kingdom laws: Colonial Laws Validity Act, s. 2. The conferral of that legislative power reflected the decisions of the Imperial Conferences recognizing that, in the light of the autonomy of the Dominions and their equality with the United Kingdom, the question of the extent, if any, to which an enactment of the Parliament of the United Kingdom should be permitted to intrude or continue to operate in the law of a Dominion was essentially a matter for that Dominion and its Parliament. It involved the establishment of a new and reverse doctrine of local repugnancy and the grant of a positive legislative power to alter and override, by direct repeal and amendment, the intended local operation and scope of any existing or future Act of the very Parliament to which, according to traditional legal theory, the Dominion Parliament must look for the actual source of all its legislative powers. There are plainly some conceptual difficulties in seeing such a local legislative power other than as distinct and qualitatively different from the legislative powers which had been previously conferred and under which it was, as a matter of traditional legal theory, "impossible" for the Parliament of a Dominion to repeal or amend the intended operation of an enactment of the "Mother" Parliament to which it was seen as owing both existence and legislative competence: see Marais [14] .

[201]

The decision in Moore's Case [18] directly turned upon the question of the nature and scope of the "power" conferred by the provision in the second part of s. 2(2) of the Statute. That provision was part of an Act of the Imperial Parliament giving legislative force to decisions reached at the preceding Imperial Conferences. That "power" and the Privy Council's determination of its nature and scope were of fundamental constitutional importance to the then Dominions and remain of general importance to those member countries of the Commonwealth which have evolved from colonial status. At the time when Moore's Case was decided, the Judicial Committee was clearly the pre-eminent judicial organ of the British Commonwealth and Empire of which the United Kingdom and the six Dominions were all members. It was also the ultimate appellate tribunal in the Australian judicial system. The effect of the decision was seen and accepted in this country and in other parts of the Commonwealth and Empire as establishing that the provision in the second part of s. 2(2) of the Statute of Westminster constituted an independent grant of legislative power to the Parliament of a Dominion (see, e.g., Jennings, loc. cit., pp. 186-187; Dixon, loc. cit., p. 106) and that view of the effect of the provision has prevailed ever since: see, e.g., Reference re Amendment of the Constitution of Canada [19] ; R. T. E. Latham, The Law and The Commonwealth (1949), p. 588; D. V. Cowen, Parliamentary Sovereignty and the Entrenched Sections of the South Africa Act (1951), p. 111 and cf. K. C. Wheare, The Statute of Westminster and Dominion Status, 5th ed. (1953), pp. 159-163. Other legislation of the Parliaments of at least two of the then Dominions (South Africa and the Irish Free State) was accepted or enacted on the basis of the Privy Council's construction of that provision. The Imperial Parliament, no doubt acting on the basis that the legislative power conferred by the words used in s. 2(2) of the Statute was an independent and substantive power to amend or repeal any Act of the United Kingdom to the extent that it was part of local law, subsequently used the identical words in other organic laws conferring legislative powers on the Parliaments of new Dominions: see, as regards India and Pakistan, the Indian Independence Act 1947 Imp., s. 6(2). All these circumstances combine to create a situation in which very powerful reasons would require to be identified before this Court would be justified in declining to accept as correct the Privy Council's conclusion regarding the nature and scope of the legislative power which the words of s. 2(2) should, as a matter of construction and subject to the effect of other provisions of the Statute, be held to confer. Perhaps such powerful reasons could be identified if the Privy Council's construction of s. 2(2) was plainly erroneous or would, if applied to Australia, have an unforeseen effect which would be destructive of the existing authority of the States under the operation of the Imperial statutes conferring and confining their authority including the division of legislative and governmental powers contained in the Australian Constitution. Neither condition is, however, satisfied. It has been seen that the construction accepted by the Privy Council was, at least, plainly open. The special provisions of ss. 8 and 9(1) of the Statute (see below) avoid any such destructive effect. That being so, the correct course for the Court to follow is to accept the construction of s. 2(2) of the Statute which formed the basis of the Privy Council's considered judgment in Moore's Case.

[208]

On the other hand, the conclusion that the legislative power conferred by s. 2(2) of the Statute is not to be taken into account in determining whether a matter is within the "authority" of the Parliament of the Commonwealth for the purposes of s. 9(1) leads to the further conclusion that the mere fact that a law operates to repeal or amend an Act of the United Kingdom Parliament in so far as the same is part of the law of Australia should not, in itself, be seen as necessarily establishing that that law is not, for the purposes of s. 9(1), a law on a matter within the authority of either the States or the Commonwealth. Section 9(1) was plainly intended to confine the plenary grant of legislative power contained in s. 2(2). Any law enacted pursuant to s. 2(2) will, of necessity, be a law amending or repealing the intended direct local operation of an Act of the United Kingdom Parliament and therefore, as a matter of traditional legal theory and in the absence of the legislative power conferred by s. 2(2), beyond the authority of both the Commonwealth and the States. The protection which s. 9(1) provides to the States would be illusory if the fact that an enactment of the Commonwealth Parliament was within the terms of s. 2(2), in that it operated to repeal or amend the direct local operation of an Act of the United Kingdom Parliament, meant that the law was, of necessity, a law on a matter which was within neither Commonwealth nor State authority for the purposes of s. 9(1). For the purposes of that sub-section, the mere fact that a particular law would have been or would be struck down by the doctrine of repugnancy to United Kingdom legislation which was preserved by s. 2 of the Colonial Laws Validity Act is irrelevant to the question whether that law is on a "matter" within the authority of the States not being a matter within the authority of the Commonwealth. It can be argued that that result flows from the theory that repugnancy under s. 2 of the Colonial Laws Validity Act was a cause merely of pro tanto inoperativeness as distinct from lack of legislative competence or authority: see Co-operative Committee on Japanese Canadians v. Attorney-General (Canada) [20] . A sounder basis for that conclusion is, however, that s. 9(1) is, in its application to a law purportedly made pursuant to s. 2(2), concerned with the identification of the "matter" upon which the law operates locally and the fact that the law would have been or would be void and inoperative because of repugnancy with the intended local operation of some United Kingdom Act is simply irrelevant to the question whether that "matter" is, under the internal division of legislative powers between the Commonwealth and the States, within the exclusive authority of the States.

[209]

In the result, the independent grant of legislative power contained in the second part of s. 2(2) of the Statute is of but limited importance for Australia. The more important accrual to the legislative powers of the Commonwealth Parliament which resulted from the Statute will, for most purposes, be found to be that involved in the enhancement of existing legislative powers by removal of the restrictions involved in the doctrine that an Act was void and inoperative to the extent of repugnancy with the intended local operation of an Imperial Act and in the view that the Parliament of the Commonwealth lacked competence to make a law whose operation was extra-territorial. As has been seen, s. 2 of the Statute removed the fetter of repugnancy by providing that s. 2 of the Colonial Laws Validity Act did not apply to any law subsequently made by a Dominion Parliament and that no such law should be void or inoperative on the grounds of repugnancy to the provisions of any existing or future Act of the United Kingdom Parliament. Section 3 removed any fetter relating to extra-territorial operation by declaring and enacting that the Parliament of a Dominion had full power to make laws having such operation. The practical operation of the exclusion in s. 9(1) was not to cut down the enhancing effect which the removal of those fetters or restrictions had upon existing powers with respect to "matters" within the Commonwealth's authority under the Constitution. In so far as s. 2 is concerned it was to cut back what would otherwise have been the additional content of the grant of independent legislative power contained in the second part of sub-s. (2) of that section. Notwithstanding that operation of s. 9(1) however, the independent grant of legislative power contained in s. 2(2) was important in that it reflected, in positive form, the abolition of the doctrine of repugnancy and, by expressly conferring a power to repeal or amend a United Kingdom Act, order, rule or regulation, expressly established the paramountcy, for purposes of Australian law, of an Act of the Commonwealth Parliament over the local operation of a repugnant law of the United Kingdom. That grant also encompassed a further at least theoretical addition to the legislative power of the Commonwealth Parliament which survived the effect of s. 9(1). That surviving addition was that the Parliament of the Commonwealth acquired power to make a law repealing or amending an Imperial Act, order, rule or regulation in so far as the same is part of the law of Australia in a case where such a Commonwealth law, while not being contrary to the Constitution, is on a matter which would otherwise have been within the authority of neither the Commonwealth nor the States. Plainly, such a case would be an exceptional one: cf. Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [21] ; Smith v. Oldham [22] . It is, however, unnecessary for the purposes of the present case that I attempt to determine the practical content or importance of that surviving independent addition to Commonwealth legislative powers. Nor is it necessary that I consider whether the relevant provisions of the 1979 Act are a law on a matter within the authority of the States for the purposes of s. 9(1) of the Statute. The reason is that I have come to a firm conclusion that those provisions were a law for the peace, order and good government of the Commonwealth with respect to "external affairs". That being so, they were a law on a "matter" within the authority of the Commonwealth Parliament under the internal division of authority between the Commonwealth and the States: Constitution, s. 51(xxix).

[226]

The question of the extent to which legislative enactments, judicial decisions or executive actions of one independent and sovereign nation should be permitted, merely of their own force, to operate or possess local authority within another is plainly a matter which directly concerns the relations between the two. Indeed, where it is a live question, it is one that will lie at the heart of those relations since it will relate to the very foundations of international relations and international law, namely, the existence and incidents of territorial sovereignty: see, generally, Kelsen, General Theory of Law and State (1961), p. 208ff., 350; Oppenheim's International Law, 8th ed. (Lauterpacht, 1955), vol. 1, pp. 286-297; De Visscher, Theory and Reality in Public Law, 3rd ed. (trans. Corbett, 1968), p. 204ff; Buck v. Attorney-General [20] . A law precluding the direct operation within Australia of a law of another country is a law with respect to a matter concerning Australia's relations with that country. Those laws of the United Kingdom Parliament which operate within Australia as part of the inherited law can be repealed or amended in the same way as provisions of the common law which have no identifiable statutory origin. They have become truly part of Australia's own local or internal law. Their exclusion from the law of this country by repeal of their provisions involves no question or matter of external affairs. On the other hand, those statutes of the United Kingdom Parliament which operate directly within Australia by force of their operation as Acts of the United Kingdom Parliament and for the reason that that Parliament has said that they should extend to this country are in a different class. To the extent to which they operate directly within Australia by virtue of their character as laws of the Parliament of the United Kingdom, their operation must, at the present time, be seen as a matter concerning the relations between Australia and the United Kingdom.

[228]

Once the conclusion is reached that the extent to which an Act of the Parliament of the United Kingdom should, of its own force and not merely as part of the ordinary local law, operate or continue to operate within Australia is a matter concerning the relations between those two countries, it follows that a law repealing such a local operation of a United Kingdom Act is a law for the peace, order and good government of Australia with respect to "external affairs" since, as has been seen, the "relations of the Commonwealth with all countries outside Australia, including other Dominions of the Crown, are matters which fall directly within the subject of external affairs": per Latham C.J., R. v. Sharkey [21] , and see also, per Dixon J. [22] . That being so, the enactment of such a law is within the legislative competence of the Commonwealth Parliament under s. 51(xxix) of the Constitution unless there is some overriding restriction which operates to preclude its enactment. Prior to 1931, the doctrine of repugnancy would, according to traditional legal theory, have so operated. Since the removal of that fetter upon legislative power, there is no such restriction. Plainly, the Statute of Westminster designedly and effectively negated any implication of such a restriction from considerations of traditional associations, of past subservience or of the part played by Imperial statutes in the establishment and development of the law of this country. Subject only to the effect of the provisions of ss. 8 and 9, which have already been considered, the Statute freed the Commonwealth Parliament "from every one of the constitutional limitations which, traditionally, inhibited the law-making of subordinate legislatures in the British dominions": Ibralebbe v. The Queen [23] . In that regard, one can do no better than quote the words used by the Privy Council in British Coal Corporation v. The King [24] . In speaking of the competence of the Canadian Parliament, in the exercise of its ordinary legislative powers under the British North American Act (referred to in the judgment as "the Act"), to curtail the Imperial Prerogative to entertain appeals from colonial courts (a matter to which the Canadian, unlike the Australian, Constitution makes no express reference), their Lordships said [25] :

[232]

Some statements in this judgment have contained the qualification "according to traditional legal theory". That is because the case was, in accordance with the approach long accepted in this Court, argued on the basis that the authority of the provisions of the Australian Constitution and the Statute of Westminster rests, as a matter of legal theory, wholly upon their enactment by the Imperial Parliament as distinct from resting upon a wider foundation which also encompasses the social compact and the international agreements which the Constitution and the Statute respectively embodied. That is not to suggest that there may be grounds for questioning the rejection by this Court of the general proposition that Imperial statutes which applied to Australia have somehow automatically ceased so to apply: see, e.g., China Ocean Shipping Co. v. South Australia [26] . It may, however, be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full "independence and Sovereignty". Plainly, there is something to be said for the view that any explanation of the legal nature of that process is incomplete if it fails to acknowledge and examine the relevance and importance, under both international law and internal law, of that social compact, of those international agreements, of the "established constitutional position" to which the Statute of Westminster expressly refers and of international recognition of Australia as an independent and sovereign State whose only de jure government is that which is locally based: cf. Buck v. Attorney-General [27] ; Ibralebbe v. The Queen [28] . Those questions could become of some practical importance if the Parliament of the United Kingdom were, for example, to purport on its own initiative to repeal the provisions of the Constitution or the provisions of the Statute or otherwise to legislate for Australia. Apart from such farfetched examples however, they lie largely in the realm of theory by reason of the scope of the power to amend the Constitution by the process which it itself contains (s. 128) and, at least since the Statute of Westminster, of the full ambit of the power under the Constitution to make laws, however extra-territorial be their operation and however repugnant they be to the law of another country, with respect to external affairs. The practical effects of that power to amend the Constitution and of that legislative power which the Constitution confers are that, whatever be the theoretical explanation, ultimate authority in this country lies with the Australian people and that, subject to the Constitution and to the State Constitutions which it protects, the Commonwealth Parliament possesses legislative competence to preclude or exclude from Australia and from Australian law the direct operation of the laws, executive actions and judicial decisions of any other country including the United Kingdom.

[277]

Both of those submissions may, I think, be answered shortly. The fact that both s. 735 and s. 736 of the Merchant Shipping Act require Royal assent or confirmation to be given or signified in a particular manner does not, in my view, detract in any way from the authority of the States which is confided to them by those sections. That authority is an authority to legislate upon the matters referred to in those sections and the fact that the exercise of the authority has to be carried out in a particular manner is hardly to deny the authority. Royal assent is part of the legislative process and the Crown has at all times been and remains the legislative head of the State legislatures. True it is that in exercising the power of assent under ss. 735 and 736, whether in the form of confirmation, approval or the signification of Her Majesty's pleasure, the Crown would be acting on the advice of Her Majesty's United Kingdom government, but that does not mean that the assent is any the less part of the legislative process. The power of the Queen to disallow legislation may be seen in both the Constitutions of the States and of the Commonwealth. The fact that at least in the case of the Commonwealth (see Constitution, ss. 58 and 59), the power is now exercisable only upon the advice of the Queen's Commonwealth Ministers and is hence for all practical purposes a dead letter, is a matter of convention rather than constitutional theory and it must be recognized that at its inception that power was exercisable upon the advice of the Queen's United Kingdom Ministers: see Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929, p. 11. It could not be suggested that the statutory power of disallowance to be found in the Commonwealth Constitution itself in any way diminishes the authority of the Commonwealth Parliament over the matters with respect to which it may make laws any more than the requirement in ss. 735 and 736 of the Merchant Shipping Act that Royal assent or confirmation be given in a particular manner diminishes the authority of the State legislatures over the matters with which those sections deal.