R v Turner; Ex parte Marine Board of Hobart [1927] HCA 15

R v Turner; Ex parte Marine Board of Hobart [1927] HCA 15 - HCA 1927 case summary — Zoe

[71]

Court of Marine Inquiry may under the terms of secs. 2 (1) and 364 investigate the circumstances. The fact that that Court afterwards deal with the certificates under sec. 372 does not sh want of jurisdiction, for the power under sec. 372 is to cancel certifi- cates only so far as they have operation under the Navigation Ad ' If the certificates in this case enable the holders of them to tak part in foreign or inter-State trade or commerce the Commonwealth Parliament may deal with them to that extent. The validity of sec. 2 of the Navigation Act is not in question here. The Court Marine Inquiry is entitled to inquire whether there is reason suppose that something has occurred which is within the po under sec. 2 and also whether a person is entitled to retain ; certificate which entitles him to take part in foreign or inter: trade or commerce. Sec. 2 (1) confers no power, but is restri and the restrictions are sufficient to enable the Court of M Inquiry to investigate a casualty which may or may not interfe with foreign or inter-State trade or commerce. Sees. 356 (2) a 364 are ample to give the necessary authority and the Commonwealth Parliament has sufficient power to give that authority. It is always relevant to foreign and inter-State trade or commerce to find whethe that trade or commerce has been obstructed. It may or it may not turn out that facts exist upon which a charge will properly lie i the Navigation Act properly construed and upon which a certificate may be cancelled, but nothing appears at present to show those facts do not exist or, if they exist, that anything will be don Sec. 478 of the Merchant Shipping Act 1894 gives power to the Commonwealth Parliament to authorize a Court or tribunal to mak an inquiry as to all casualties to British ships registered in Australia. The Commonwealth is a British Possession within that Act (sec. 18 (2) of the Interpretation Act 1889; John Sharp & Sous Ltd. The Katherine Mackall (1) ). The Commonwealth has exercised power conferred by sec. 478 in enacting sec. 364 of the Navigatic Act. The power given by sec. 478 either belongs to the States or belongs wholly to the Commonwealth. The power is not divided s that part of it belongs to the States and part to the Commonwea The words "subject to . . . restrictions" &c., in sec. 478, do no

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that sec. 98 extends the trade and commerce power so as to in the subject of "navigation and shipping" itself for the p of Federal trade and commerce. The important thing, then, to b in mind, is that " navigation and shipping," which originally, as] 12 Car. IL. ¢. 18, began as a most unmistakable department foreign trade, is itself, on a more highly diversified scale, an affirmative legislative power of the Commonwealth, not independently, but s far only as to supplement the trade and commerce power as that would be without it. That opens a chapter, exemplified in Malco Case (1), quite different from the more restricted direct regulati and protection of the trade and commerce power as in sec. 5] (1) dependent merely on the incidental clause 51 (xxx1x.) to effectuat it. It extends by virtue of sec. 98 to the regulation and prot of the mercantile instruments - ships - by which it is condu and of the property and the human beings involved in the proce including in that, as Malcolm's Case shows, compensation wl accidents occur to seamen in the course of their vocation. when so much is settled and must be conceded, the process of reas is to me incomprehensible that denies the power to prevent inj to, and even destruction of, life and property by safegua inter-State and foreign trade on frequented routes on sea and othe navigable waters of the Commonwealth. The plaintiffs rely on the decision in the Newcastle and Hunter River Steamship Co.'s Case (2) as covering this case so far as the Federal Constitution is concerned, and p. 368 is particularly relied on. It is needless to say though I was not a member of the Court in that case, I a its binding effect. But I cannot read into it the devastating | contended for. It concerned only the manning and accommodatio of shipping engaged in intra-State trade. I read the judgment a determining that there was not such a relation between the interio subjects of a ship's personnel and their living arrangement the one hand, and the safety of inter-State vessels navigating the same waters on the other, as to attract the Commonwealt

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the power of the Parliament to confer on this Court original juri tion in any matter of Admiralty and maritime jurisdiction (j of our Constitution) as practically giving to the Parliament legi jurisdiction over Admiralty and maritime matters. There doubt, so far as I can see at present, that in the United States view of the legislative power of Congress has the effect of enal Congress to make laws over a greater area of waters than it e¢ make by virtue of the commerce power alone. For instance, it h been held that Congress can make laws applicable to waters of : river which are above tide water (In re Garnett (1)). It is no necessary, however, to discuss here the validity of this Am 7 extension of powers over navigation; it is enough for me to: that the right of our Federal Parliament to make laws for the whol of the waters used for inter-State or foreign commerce is ¥ independent of such an extension. The collision took place in of the Derwent, within tidal waters in which inter-State and for vessels are in the habit of moving, waters which are clearly ¥ available for and actually used by inter-State and foreign and, as stated summarily by Prentice and Egan (Commerce of the Federal Constitution, p. 86) - "' The safety of na' requires that vessels operating upon the same waters shall be sul to the same rules, and shall be under substantially similar obligation . But it has been contended that this view as to the power of th Federal Parliament to legislate as it thinks fit with regard to navigation of every kind in waters which are available for, and by, vessels engaged in inter-State and foreign commerce has be condemned in a case decided by this Court in 1921 - Neweastle Hunter River Steamship Co. v. Attorney-General for the Con wealth (2). In that case, however, there was no question navigation of ships: the question was as to the manning am accommodation on ships. The Federal Parliament had purp to apply certain humanitarian legislation to purely intr: vessels as well as to inter-State and foreign vessels, legis

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Judgment (228 paragraphs)