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[1921] HCA 31
High Court of Australia
1921-07-01
Original judgment source is linked above.
~ until the Controller states to the Court the results of his investiga. H-C. or A. " tion of the facts, with or without the aid of experts. 'The parties peas,
prefer that the application should be dismissed rather than have Iw me
it adjourned for service of the notice of motion on the Australian 4pS™RAUAN
Solicitors for the Controller, Malleson, Stewart, Stawell & Nankivell, Solicitors for the Broken Hill Proprietary Co., Moule, Hamilton _ & Riddle Solicitors for the Broken Hill South Silver Mining Co., Blake & Rigel
Solicitors for the Sydney Municipal Council, Lynch, McDonald & Eliot.
THE NEWCASTLE AND HUNTER RIVER STEAMSHIP COMPANY LIMITED AND > Puarvriers; OTHERS ' J
THE ATTORNEY-GENERAL FOR THE) |, = COMMONWEALTH AND ANOTHER . |) PPPSPANTS:
Navigation and Shipping - Estent of power of Commonwealth Parliament - Ships H.C. ov A. 'engaged solely in intra-State trade and commerce - Validity of Federal legislation 192),
Manning and accommodation - Navigation Act 1912-1920 (No. 4 of 1913 - _ Svowey, Na of 1921), secs 2 (2), 7, Hy 43, 4, 135, 136, 288, 298, Schade Land July 25, 26,
W - Navigation (Manning and Accommodation) Regulations 1021 (Statutory "
Rules 1921, No, $4} - The Conatittion (63 & 64 Vick. 12), ee 5L(E) 9% gor G3 'aa The effet of se. 51 (1) ans. 88 of the Constitution isto endow the Rar- Geran ER
Tiament, not with a substantive power to deat with navigation and shipping 484 State 33.
at large, but only with power to deal with that subject in so far anit to interState and foreign trade and commerce,
the Schedules thereto and of the regulations made thereunder ag 'manning of, and accommodation on, ships, to the extent that they to prescribe rales of conduct to be observed in respect of ships
in the domestic trade and commerce of a State are beyond the Commonvealth Parliament, and are to that extent invalid,
2 (2) of the Navigation Act 1912-1920 provides that Rests pred subject to the Constitution, and so as nat to the legislative power of the Commonwealth, to the intent that wh enactment thereof would, but for this sub-section, have been being in exeess of that power, it shall nevertheless be a valid en the extent to which it is not in excess of that power.
Hala, that the sub-section is a legislative declaration of the intent Parliament that if valid and invalid provisions are found in the Act, interwoven together, no provision within the power of Parliament sll merely by reason of such conjunction, but the enactment shall op
0 much of its subject matter as Parliament might lawfully have d
Held, therefore, that neither the whole Act nor secs. 14, 43, 44, 185 288 or 298 thereof was rendered invalid by reason of the fact that sections there were included in one collective expression objects a8 'of which the particular enactment was invalid.
Dewcnren. An action was brought in the High Court by the New
firms and persons against the Attorney-General of the Comm wealth and the Minister for Trade and Customs, At the h the demurrer hereinafter referred to, the State of Westem was added as a plaintiff, and as then amended the s claim was as follows :- -
1, The plaintiffs are the owners of ships registered in the where they respectively reside.
2 (1). The said two ships of the said State take on board pas- H.C. oF A. sengers and for cargo at ports in the said State to be carried to and 121. Janded or delivered at other ports in the said State and also at Neweasru ports in Territories under the authority of the Commonwealth and at ports in other countries. ce
2 (a). In the course of their voyage the said ships go upon the Co. Lxo. high seas and for waters which are used by ships engaged in trade arronxey- and commerce with other countries or among the States. a
2 (b). The said ships are British ships, and upon all their voyages Cosb¥ox- their first port of clearance and port of destination are in the Com- - _ 'monvealth.
Henry William, Baron Forster, the Governor-General aforesaid, acting with the advice of the Federal Executive Council, do hereby fix the first day of July, one thousand nine hundred and twenty-one, as the date upon which the following parts, sections, and schedules of the Navigation Act 1912-1920, namely, sees. 1, 24, 2,
7, 8,9, 10, 14, 43, 44, 47a, 50, 77, 85, 88, 91, 92, 122, 132, 135, 136, 137, 138, 187, 2044, 259 to 265a inclusive, 269a, Part VI. (namely, sees. 284 to 293 inclusive), secs. 3174, 378, 379, 380, 384, 386, 387, 389, 391 to 396 inclusive, 399 to 405 inclusive, 407, 4104, 413, 414, 416, 418a, 422, 423, 4234, 424, 425, Schedules 1,, IL, IV. and YV., shall commence and the first day of October, one 'thousand nine hundred and twenty-one, as the date upon which sec. 231 of that Act shall commence. Given under my hand and the seal of the Commonwealth, at Sydney, this thirty-first day of March, in the year of our Lord one thousand nine hundred and twenty-one, and in the eleventh year of His Majesty's reign - By His Excellency's Command, W. Massy Greene, Minister of State for Trade and Customs."
6, By Statutory Rules No. 84 of 1921 the Governor-General made certain Regulations called the Navigation (Manning and Accommodation) Regulations 1921 to come into operation as from Ist July 1921. A copy of the said Regulations is annexed hereto and filed herewith, and this statement, of claim is to be read asif such Regulations were incorporated therein,
of the jave to engage large numbers of officers and seamen in excess of the mumbers at present employed on their s 'working expenses will be greatly increased and their business will be seriously hampered and impeded.
10, The plaintiffs have requested the Minister for Trade and Customs not to enforce the before mentioned provisions and schedules ofthe said Act and Regulations or any of them against the plaintiffs in respect of their said ships trading as deseribed in par. 2 and par. 2 (1) hereof, but the said Minister has refused to agree to the 'aid request of the plaintiffs and has required the plaintifis to take all necessary steps to obtain licences for their said ships by Ist July
plaintifis apply for and obtain a licence under sec. 288 of the said Act and according to the form provided in the Regulations and
| unless the plaintiffs otherwise comply with the provisions of the said Act and Regulations,
12, The plaintiffs desire and intend to carry on their said trading operations in the said ships as described in par. 2 and par. 2 (1) hereof without obtaining such licence and without complying with the provisions of the said Act or Regulations, but fear that they will be unable to do so by reason of the threats and intentions of the defendants as aforesaid, and the plaintiffs fear that by reason 'of the premises their businesses will be brought to a standstill and that they and their agents and servants will be exposed to a multi- plicit
(1) That it may be declared that all the provisions and schedules 'of the Navigation Act 1912-1920 set out in the said Proclamation and all the said Regulations are invalid so far as they purport to apply to the plaintiffs' ships trading as mentioned in par. 2 hereof ;
jid Act and Regulations the plaintiffs and each of them will H.¢. oF A.
H.C. oF A. schedules of the said Act mentioned in par. 8 hereof and all the 1921. Regulations are invalid so far as they purport to apply to ships
Newoassre the plaintifis trading as mentioned in par. 2 hereof; '
HOx?,, (3) That the defendant the Minister for Trade and Customs kim, Testrained by the order or injunction of this Honourable Court Co. Lx.
enforcing or attempting to enforce the said provisions of the sai Arronvex- Act or any of them or the said Regulations against: the plaintifis in Sonus Tespect of their said ships trading as described in par, 2 hereof; Cowmios- (4) That. the defendants may be ordered to pay the plainti costs of this suit ; (5) That the plaintifis may have such further or other relief the nature of the case may require; (6) The plaintiff the said State of Western Australia also dla the relief asked in the Ist, 2nd, 3rd, 4th and 5th prayers in of its ships trading as described in par, 2 (1) hereof.
By demurrer to the amended statement of claim the defendants said (1) All the sections of the Act and all the Regulations referred to in the statement of claim are valid and the statement of elaim therefore discloses no cause of action,
(2) This pleading is a demurrer to the whole of the claim of plaintifis,
'The demurrer now came on for argument before the Full Court of the High Court.
Sir Edward Mitchell K.C, (with him EB, M, Mitchell), for the plaintifls other than the State of Western Australia, 'The Common- wealth Parliament has no power to legislate as to shipping which is purely intra-State, The arguments to the contrary were dealt with in Owners of s.s. Kalibia v. Wilson (1). It was there held that neither under sec. 98 nor under sec. 76 (111.) of the Constitution had the Commonwealth Parliament such power.
Broomfield K.C. (with him Milner Stephen), for the State Western Australia. The same case is an authority for saying that the whole Act is invalid
K.C. (with him Street), for the defendants, So much H-€. or A. he jadments in that case as deals withthe val ity of the Seamen's 1821-
Act 1909 was unnecessary to the decision of the case, Neweaster AND Hower River Sreamsmir
it was practically admitted that the Act could not be justified the trade and commerce power in sec. 51 (1.) of the Constitu- But that power was intended to be used in its widest sense, Co. Lr. see, 98 was only inserted to prevent any doubt as to its having Arrousxy- used in that sense. If the words " trade and commerce" in GRX""AY ec. 51 (1.) were used in a narrower sense, then sec. 98 was intended CO*%0N-
lextend the power to navigation and shipping generally, and not " - ~ ly to include in it navigation and shipping in relation to trade 'commerce. Thus the testing of chains and anchors and the lation of the building of ships are within the navigation and jing power, although they cannot be said to have anything to 'with trade and commerce, The history of sec. 98 in the Federal ntion supports this view. The navigation and shipping power at one time a separate placitum in sec. 52 of the Bill (now 51 of the Constitution), and it was removed from that place by the drafting committee and inserted in sec. 98 as a matter of only and not with any intention of limiting the power. (See Offcial Record of the Debates of the Australasian Federcl Convention, 'Third Session, Melbourne, 1898, vol. 1., pp. 1856, 2449.) The of the provision may be used as an argument as to its meaning ted Society of Engineers v. Adelaide Steamship Co. (1) ; wral for the Commonwealth v. Colonial Sugar Refining Co. (2); Bazter v. Commissioners of Taxation (N.S.W.) (3); Deakin Webb (4); Municipal Council of Sydney v. The Commonwealth J. The power as to navigation and shipping is unlimited except far as the power of the Commonwealth is limited territorially by see. V. of the Constitution Act, The words navigation and shipping include all matters which are ordinarily included in legis- tin as to navigation and shipping. If the power is limited it intended to enact the body of law which in the United States held to be included in the power as to navigation and shipping,
H.C. oF A. 1921, Neweasrir Herter River Sreamsiir Co. Lap,
which latter power was implied from the power as to trade anf commerce, 'That included the power to control the highways of inter State and foreign commerce, and authorized the making of general laws as to those highways, including laws for the licensing of ships in waters used for inter-State and foreign commerce (ee Gibbons v. Ogden (1) ; Lord, Steamship Co. (2) ; Ine Debs (3): The
[Kxox C.J. referred to Employers' Liability Cases (1); Second Employers' Liability Cases (8).)
If a general regulation of ships is capable of furthering inter State commerce it is for the Federal Parliament to say whether it is calculated to produce that result or not (Farey v. Burvet (9) If the sections so far as they relate to intra-State ships are invalid the invalid portions are severable under the decisions of this Court, and by reason of see. 2 2) of the Navigation et (see Otoners of ss. Kalibia v. Wilson (10).)
[Gavay Dury J. referred to Waterside Workers' Federation of Australia v. J. W. Alezander Lad. (11) eting Warren x. Chavledon
Sir Edward Mitchell K.C. All or most of the American cases referred to were based on the maritime power and not on the com merce power. (See also Lehigh Valley Railroad Co, v. Pennsyloania (13).) The Commonwealth Parliament has only power to regulate ships engaged in inter-State and foreign trade, but it may be that in order to prevent those regulations being nugatory the Parliament may limit the movements of intra-State ships. But provisions as to manning and accommodation cannot be brought within such a principle.
Broomfield K.C. and Milner Stephen. The test of severability t0 be applied here is that laid down in R. v. Commonwealth Court of Com ciliation and Arbitration ; Ex parte Whybrow & Co. (14), and Owners
(12) 2 Gray, Si, at p. 99. (13) 145 US. H92. (14) 1 CER, 1, at po
«« Kalibia v. Wilson (1), namely, "if good and bad provisions ate wrapped-up in the same . expression, the whole must fail" Applying that test, the whole Act is invalid. Sec. 2 (2) of the Navigation Act does not alter that test ; itadds no new criterion 'ofseverability. 'The section is merely declaratory and expresses the law as to severability which had been laid down by this Court. It has no application until it has first been determined whether the enactment is severable or not
Keating, for the State of Tasmania intervening. If, apart from see, (2) a provision is wholly invalid because it is not severable, that section does not make it severable. [Counsel referred to Inre Initiative and Referendum Act (2).]
Brissenden K.C., in reply. The precedent for sec. 2 (2) of the Navigation Act is found in the Colonial Laws Validity Act 1865 (28 29 Viet. c. 63), sec. 2. 'The object of each is the same, namely, to preserve what is good and to cut off what is bad. 'There is no authority for the contention that the Commonwealth has no power
to enact such a provision. It is valid under sec. 51 (xxx1x.) of the Constitution, It is incident to the legislative power to be able to limit legislation in any manner the Parliament thinks fit, and the Parliament has, in sec. 2 (2), clearly expressed its intention to limit the Act by the extent of the commerce power.
Tue Cover delivered the following written judgment : -
This action was brought by various shipping companies against the Attorney-General and the Minister of Trade and Customs of the Commonwealth seeking declarations that various sections of the Navigation Act 1912-1920 and schedules, and regulations made under it, were invalid in so far as they purport to apply to the plaintiffs' ships mentioned in par. 2 of the statement of claim. As the state- 'ment of claim was originally framed it was alleged that these ships of the plaintiffs took on board passengers and /or cargo in a State
Hoxrer River Sreamsune Co. Lx. Arrorxey- GENERAL Comtox-
to be carried to, landed or delivered at other ports in the same: and do not travel beyond or engage in trade beyond the limits one State. At the hearing before us, the State of Western Ai applied to intervene for the purpose of arguing that the whole Act was invalid if the parts challenged by the plaintifis were the legislative powers of the Commonwealth. It was suggestal from the Bench that the interest of the plaintiffs originally before the Court, and the allegations made in plaintiffs' statement of claim, did not warrant so extensive a field of argument, The parties then arranged, with the sanction of the Court, the State of Western Australia should be joined as a plaintiff that the position of some of its ships should be set forth so as raise the ground which that State wished to argue. 'The statement of claim was then amended, and an allegation made that two shi of the State take on board passengers and /or cargo at ports in the said State to be carried to landed or delivered at other ports in that State and also at ports in Territories under the authority of the Commonwealth, and at ports in other countries, but the only relief claimed in respect of this allegation was the same relief as the other plaintiffs claimed in respect. of their ships. In other words, the State of Western Australia said that if the Act was invalid as to ships in the position of the plaintiffs' ships then the whole of the attacked provisions of the Act were infected and totally failed, The argument on the demurrer was conducted on this basis only.
In dealing with the case, as we are, on demurrer, we must take the facts alleged in the statement of claim and the precise relief that is sought. 'There is no allegation that the intra-State ships fare engaged or used for the purpose of inter-State or foreign trade. An intra-State vessel may be used for the purpose of inter-State or foreign trade, although it may carry goods only between ports it the same State. For instance, goods sold in Sydney for delivery in Queensland may be sent by an intra-State vessel to Byron Bay and then sent to Queensland by railroad. We cannot deal with such a case on the pleadings as they now stand.
The provisions, the validity of which are challenged, are se 14, 43, 44, 135, 136, 288 and 293 and Schedules I. and II. ofthe Act
dntions 1921 (Statutory Rules 1921, No. 84). me provisions of sees. 14 (I), 43, 41 and 136 in terms applied Neweasen ecery ship registered in Australia or engaged in the coasting yovren sde, of sec. 135 to every steamship so registered or engaged, of , RIVER 288 and 293 to every ship engaged in the coasting trade, of Co. Lap.
le I. to every British ship registered in Australia or engaged Arronxey-
'the consting trade and of Schedule II. to every British steamship Son nme
'tinted in Australia or engaged in the coasting trade (other than Crmmxn"
limited coast trade or river and bay ship of less than 15 tons - registered tonnage). Speaking generally, these enactments
the regulations prescribe certain scales of manning and standards
'of accommodation for the ships to which they relate, prohibit any
'dip from engaging in the coasting trade without a licence, and
'impose penalties on the master or owner of any such ship for
Sec, T of the Act provides that "A ship shall be deemed to be
'engaged in the coasting trade, within the meaning of this Act,
if she takes on board passengers or cargo at any port in a State,
"ora Territory under the authority of the Commonwealth, to be
"carried to, and landed or delivered at, any other port in the same
"State or Territory or in any other State or other such Territory."
'This definition is subject to provisoes which have no bearing on the
The ground on which the validity of the Act and Regulations is,
challenged is that their provisions, so far as they relate to ships
'ot engaged in trade or commerce with other countries or among
'theStates, are beyond the powers of the Commonwealth Parliament;
'r, in other words, that the Commonwealth Parliament has no
'ower to prescribe conditions of manning and accommodation with
_Tespect to ships engaged solely in intra-State trade, or to require
_ the owners of such ships to obtain a licence to engage in such trade.
Tt was further argued by the States of Western Australia and
Tasmania that the provisions were so interwoven together that if
'Tewas not denied that the provisions attacked were intended to
'avigation (Manning cnd Accommodation) H. ©. oF A. 1921.
H.C. oF A.Neweasree, Hoxren River Sreausire Co, Lr. Arrorsey Genera Constox.
and, if valid, did affect ships engaged in trade wholly within boundaries of a single State and not in any way engaged in trade op commerce with other countries or among the States. Dr. Brin, for the Commonwealth, contended that authority to make thee enactments was to be found in sec. 51 (1.) of the Consittin, "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Com. monwealth with respect to trade and commerce with other comntie, and among the States," read with sec. 98 of the Constitution, which provides that "The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping and to railways the property of any State." No other provisim of the Constitution was relied on for this purpose, and the plaints did not deny that Parliament intended by some of the provisions of the Act to exercise this power. The defendants did not contend that the relief sought could not be given if the plaintiff' view of the Constitution and of the Act is right, and we do not proposein. this case to debate a point that the parties did not argue; and the matter must be considered open if ever again it arises, The Com stitution does not endow Parliament with a substantive power to deal with navigation and shipping at lange. It only empower it to deal with that subject in so far as it is relevant to inter State and foreign trade and commerce. As was said by Gavan Duffy and Rich J5. in Australian Steamships Led. v. Malcolm (1), the effect of sec, 98 is to include in the power to make laws with respect to trade and commerce a power to make Jaws with respect to navigt tion and shipping ancillary or relevant to such trade and commerce The facts stated on the record do not suggest that provisions relating to the manning of, and the accommodation on, ships engeged solely in intra-State trade are relevant or ancillary to trade and commerce with other countries or among the States. It is not enough merely to say that the intra-State ships go upon the high seas or in waters used by inter-State or foreign ships. They ate not engaged in any act of inter-State or foreign trade. Consequently, we are of opinion that the provisions of the Act and Regulations specified above, to the extent to which they (1) 19. CLR, 298, at p. 335,
'purport to prescribe rules of conduct to be observed in respect of H.C. oF A. ships engaged solely in the domestic trade of a State, are beyond 1 'the power of the Commonwealth Parliament. Meo
Tt was argued for the plaintiffs that if these provisions were so yy8 far invalid they were invalid for all purposes, and in support of < Rive
this contention reliance was placed on the decision of this Court Co. Lev. in Ouners of s.s. Kalibia v. Wilson (1); but the Navigation Act axrouxey. 'contains a provision, sec. 2 (2), which had-no counterpart in the GB3"n" 'Act which was the subject of that decision. This section is as Common- follows: "This 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 this sub-section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." We think this provision is a legislative declaration of the intention of Parliament that, if valid and invalid provisions are found in the Act of Parliament, however interwoven together, no provision within the power of Parliament shall fail by reason of such con- junetion, but the enactment shall operate on so much of its subject matter as Parliament might lawfully have dealt with. The inten- tion and effect of the section may be illustrated by reference to sec. 135 of the Act. In terms the provisions of that section apply tothe owner of every steamship registered in Australia or engaged jn the coasting trade. This class of ships includes: (1) every ship registered in Australia engaged in inter-State or foreign trade ; (@) every ship so registered engaged solely in intra-State trade; 8) every ship not so registered engaged in inter-State trade; (4) every ship not so registered engaged solely in intra-State trade. With respect to the ships comprised in classes 1 and 3, the Parlia- 'ment has power to enact the provisions of sec. 135; with respect to those comprised in classes 2 and 4, it has no such power. The decision in the Kalibia Case proceeded on the footing that the _itelusion in one collective expression in an Act of Parliament of bjects as to some of which the enactment was invalid, operated to iwalidate the whole enactment because it did not appear that i (2) UC.LR., 689.
H.C. or A. Parliament would have imposed the rule as to some only of 1921. lass if the whole class could not be affected. The whole enactment Neweasrur Was declared invalid in that case because it was impossible to 28x ascertain an intention that some only of the class designated by
een the collective expression should be affected if the others were not Co. Lp. But in the present case sec. 2 (2), though its verbal expression may. Arronxey. be open to criticism, sufficiently discloses the intention of Parl Gexese ment that if all four classes of ships could not be brought under
'ron ite the provisions of sec. those provisions should operate in Tepe j
Comox: NEE ofall ships to which they might lawfully be applied.
'There is, in our opinion, nothing to prevent Parliament from legislating in this way in order to make its intention clear, Conse: quently, we hold that the demurrer should be overruled.
Although the statement of claim impugns the validity of the Act as a whole, it does so only on the view which we have just dedared to be untenable because of sec. 2 (2), and we must not be taken as expressing any opinion on any provisions of the Act other than those which we have specifically dealt with,
Demurrer overruled, Declaration in accordance with the reasons given by the Court. Deer dants to pay costs of the plaintifs. The plaintiff shipping Companies to have only 'one set of costs.
Solicitors for the plaintiffs, H. de Y. Scroggie ; F. L. Stow, Crown Solicitor for Western Australia,
Solicitor for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.
Solicitor for the intervener, A. Banks-Smith, Crown Solicitor for