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

A collision took place in the waters of the River Derwent between two Gavan Duty,

steamships owned and registered in Hobart and engaged solely in trading *™ Starke JJ. in the Port of Hobart and not then engaged in trade or commerce with other countries or amongst the States. The place at which the collision occurred was a short distance outside the course ordinarily used by ships engaged in such trade or commerce, but the two steamships had traversed part of that

Held, by Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. (Isaacs and Higgins JJ. dissenting), that a Court of Marine Inquiry established under the Navigation Act 1912-1925 had no jurisdiction to inquire into the collision : -

By Knox C.J., Gavan Duffy, Rich and Starke JJ., on the grounds (1) that the facts above stated did not indicate any relation between the casualty

and foreign or inter-State trade or commerce ; (2) that sec. 478 of the Me Shipping Act 1894 did not enable the Parliament of the Commonwealth alter the nature of the jurisdiction exercised by any Commonwealth Cou as to affect the division of powers which the Constitution makes Commonwealth and State :

By Powers J., on the ground that, although sec. 478 of the Merchant Act 1894 authorized the Parliament of the Commonwealth to direct an to be made as to a casualty to a British ship registered in Australia whereve it happened, the two steamships which collided were within the exempti in sec. 2 (1) of the Navigation Act from the operation of the Act, for time of the collision neither of them was within any of the exceptions that exemption.

Newcastle and Hunter River Steamship Co. v. Attorney-General for | Commonwealth, (1921) 29 C.L.R. 357, applied.

Per Isaacs J.: - (1) (a) Sub-sec. 1 of sec. 478 of the Merchant Shij Act 1894 is in itself an independent grant of power in respect of a independent subject, namely, the matters enumerated in the sub-se which include the casualty in question in these proceedings ; (6) sub-se of that section enlarges the jurisdiction of a Court or tribunal by enabling make inquiries respecting any of the matters enumerated in sub-see, 1 alt occurring outside its ordinary territorial jurisdiction. (2) The power conf on the Parliament of the Commonwealth by secs. 51 (1.) and 98 of the Con tion extends to the protection of inter-State and foreign trade vessels legislative provisions reasonably calculated to avoid even the risk of collisio (3) The expression " waters which are used by ships engaged in trade or e merce with other countries or among the States" in sec, 2 (1) (6) of # Navigation Act 1912-1925 means waters which such ships do in fact use ever circumstances require.

Per Higgins J. : - (1) The Commonwealth Navigation Act 1912-1925, on tl true construction of sec. 2 (1) (b), applies to the inquiry ; and the Act in thi respect is within the power of the Federal Parliament under the Constitut (sec. 51 (1.), (Xxxrx.) ). (2) Prohibition would lie against the Commonwe: Court of Marine Inquiry to prevent that Court from inquiring into the collisio although the officer who conducts such an inquiry under the Navigation 1912-1925 is not exercising the judicial power of the Commonwealth the meaning of Chap. III. of the Constitution,

An application was made to the High Court by the Marine Board of Hobart, constituted under the Marine Act 1921 (Tas.), for order nisi for a writ of prohibition to prohibit Ernest William as constituting a Commonwealth Court of Marine Inquiry at under the Navigation Act 1912-1925, from proceeding with

inquiry as to a collision which had taken place between two steam H. ©. or A.

vessels, the Cartela und the Togo, in the Port of Hobart. ae On 22nd February 1927, after the argument upon the application Tae Kiva

had hegun, an action was instituted in the High Court by the State power;

of Tasmania and the Marine Board of Hobart against the Common- E* Pants

Marine wealth and Ernest William Turner, as constituting a Commonwealth - Boarp Court of Marine Inquiry at Hobart, asking, by the statement of claim oe endorsed on the writ, for certain declarations and an injunction. Tan

To the statement of claim the defendants pleaded and demurred. nes Subsequently, at the suggestion of the Court, the statement of weaxrn. claim was amended, and as amended was as follows : - or.

1. On 25th December 1926 two steam vessels named respectively the Cartela and the Togo collided in the waters of the River Derwent at the approach to Sullivan's Cove in the Port of Hobart, Tasmania. 1 (a). The place at which the said vessels Cartela and Togo actually collided was situate a short distance outside the course ordinarily used by ships engaged in trade or commerce with other countries or amongst the States but the said vessels Cartela and Togo had traversed

• part of the said course so used as aforesaid immediately before the collision took place. No vessel engaged in trade or commerce with other countries or amongst the States was at the time of the said collision actually affected by the navigation of either of the said vessels Cartela and Togo.

2. Both the said vessels are owned and registered in the Port of Hobart and are mercantile vessels trading solely within the Port of Hobart as defined by sec. 1 (p) of the interpretation part of By-law No. 1 of the Marine Board of Hobart. 2 (a). Neither of the said vessels was on the said 25th December 1926 nor at any other time except as hereinafter stated engaged in trade or commerce with other countries or amongst the States. At certain periods of the year each of the said vessels carries within the Port of Hobart amongst other cargo goods in the course of transit to other countries and to other States.
3. Both the said vessels hold certificates authorizing them so to trade and to carry passengers issued by the said Board under the

Provisions of Part XIV. of the Marine Act 1921 of Tasmania. VOL. XXXIx. 28

H.C.orA. 4, The master and the engineer of each of the said vessels

ee proper and valid certificates of competency issued by the Tan Kise Board under a statute now repealed but containing proy alien ; Similar to those of the said Part of the said Act and all such certi Ex rant' remain of full effect by virtue of sec. 11 of the said Act.

iv eo 5. After the happening of the said collision a preliminary i E r. was held and a report furnished to the said Board by the

TASMANIA raster of the Port of Hobart pursuant to sec. 125 of the said Act

THe and the said Board decided that a further inquiry was neces

'ComMMON- weattx. and requested the Governor of Tasmania to constitute a Court of

~~ Inquiry for that purpose in accordance with the said Act.

The Governor of Tasmania on the advice of his Ministers prepared to constitute such a Court and had in fact taken certain steps to constitute such a Court when the Government of Commonwealth of Australia interposed and the Government Tasmania without admitting that the Government of the Common- wealth of Australia had any authority or power to interfere in any way in the matter stayed all proceedings to constitute the said Cou of Inquiry.

A Court of Inquiry has been established for Hobart under the provisions of the Commonwealth 'avigation Act 1912-1920 and Ernest William Turner a Police Magistrate of the State of T: a has been constituted such a Court for Hobart as appears by a tion published in the Commonwealth of Australia Gazette on 29 September 1923.

The said Ernest William Turner has commenced to hold proposes to continue to hold an inquiry into the said collision and has taken steps in connection with the holding of such inquiry and on llth February 1927 held a sitting of the said Commonwealth Court of Inquiry (with two nautical assessors) and proceeded to ta certain evidence.

The plaintifis submit: (a) that upon the proper construction of the Commonwealth Navigation Act 1912-1925 the said Commer wealth Court of Marine Inquiry has no jurisdiction to enter upon hear the subject matter of the said inquiry into the said collision to exercise any of the said powers conferred on the said Court by the

said Acts; (b) alternatively with (a) that if upon the 7 oper '

construction of such Acts they purport to give jurisdiction to such Court to inquire into the subject matter of such collision or exercise any of such powers in respect thereof the said Acts are to that extent ultra vires the Commonwealth Constitution and void; (¢) the power given by the Commonwealth Constitution to the Common- wealth Parliament of legislating with respect to navigation and shipping is limited to so legislating with respect to trade and commerce with other countries and among the States and does not authorize legislation controlling or regulating ships not engaged in such trade or commerce whilst using the waters of a State port which happen also to be sometimes used by ships engaged in such trade and commerce.

The said alleged Commonwealth Court of Marine Inquiry is a Court created by the Parliament of the Commonwealth within the meaning of secs. 71 and 72 of the Commonwealth Constitution but the Justices of such Court have not been granted the tenure prescribed by the said sec. 72.

ll. The said alleged Court of Marine Inquiry threatens and intends to proceed with the hearing of the said inquiry and will unless restrained by this Honourable Court continue the same and exercise such of its powers purporting to be conferred upon it by the said Navigation Act as it in its discretion considers appropriate or expedient.

12. By reason of the matters stated in the preceding paragraphs the plaintiffs submit that the said alleged Court of Marine Inquiry is a pretended Court and has no jurisdiction to inquire into the said collision or to exercise any of the powers conferred upon it by the said Navigation Acts.

(1) Declarations to the effect of the matters stated in each of pars. 9 (a), (b) and (ce) and par. 12 respectively ;

(2) An injunction to restrain the said alleged Commonwealth Court of Marine Inquiry from proceeding with the hearing of the said inquiry and from exercising any of the powers purporting to be conferred by the said Navigation Act.

To that statement of claim the defendants demurred.

THe King v. ToRNER ; EX parte Marine Boarp or Hopart,

Fillis, for the Marine Board of Hobart, in support of the appl for prohibition.

Owen Dizon K.C. (with him C. Gavan Duffy), for the Common wealth, took a preliminary objection. This is not a case for prohibition. The Court of Marine Inquiry is not a tribunal 0 which prohibition will lie. Prohibition only lies to prevent usurpation of judicial authority. The Court of Marine Inquiry was this case doing nothing more than holding an inquiry for the purpos of making a report. It was not proceeding to exert any power could be called judicial. (See Navigation Act 1912-1920, sees. 364, 365.) Under sec. 364 the Court is not authorized to exert any power adversely to anyone except witnesses. It had not before i any party against whom the investigation was being made.

[At this stage of the argument it was stated that a writ would be issued in an action by the State of Tasmania claiming an injuncti ; The writ was later on issued with a statement of claim end: thereon and a demurrer thereto was filed.]

Ellis. On its proper construction the Navigation Act does

in waters which are "used" by ships engaged in foreign or inter- State trade or commerce. "Used" should be construed "habitually or ordinarily used." If on the facts the Navigation de applies, it is ultra vires the powers of the Parliament of the mn wealth conferred by secs. 51 (1.) and 98. The power as to shippi is limited to such aspects of shipping as are relevant or ancillary foreign and inter-State trade and commerce. The case of Newoas and Hunter River Steamship Co. v. Attorney-General for the Coma wealth (1) is conclusive on the matter. The cases in the Sup Court of the United States are not applicable (Owners of s.s. Ki v. Wilson (2)). The Navigation (Collision) Regulations of ti

(1) (1921) 29 C.L.R. 357. (2) (1910) 11 C.L.R. 689.

Commonwealth (Statutory Rules 1923, No. 100) do not apply, for there were, within the meaning of art. 30 of those Regulations, rules made by a local authority which governed the course of those vessels. There has been an investigation by a competent tribunal within the meaning of sec. 364 (2) (a) of the Navigation Act. The Harbour-Master, who made an investigation and report, was a competent tribunal (see sec. 125 of the Marine Act 1921 (Tas.) ).

Sir Edward Mitchell K.C. (with him Moore), for the State of Victoria intervening. The power of the Commonwealth Parliament to _ legislate as to shipping and navigation, being limited to shipping _ and navigation so far as it relates to foreign and inter-State trade and commerce, does not authorize legislation controlling or regulating ships which are not engaged in such trade or commerce while using the waters of a port of a State which are sometimes used by vessels which are engaged in such trade or commerce. That power authorizes legislation as to ships engaged in foreign and inter-State trade or commerce but does not authorize legislation for regulating traffic in the ports of States (see Attorney-General for Ontario v. Reciprocal

Insurers (1) ). The power does not extend to subverting the control of ports by the State port authorities. The Court of Marine Inquiry as created by the Navigation Act is a Court exercising the judicial _ power of the Commonwealth (see secs. 356 (2), 370, 394). Prohibition _ will lie to that Court,-first, because it is a Court and, secondly, if

• it is not a Court, because it is a statutory body which is embarking upon an enterprise in respect of which the exercise of its powers would be ultra vires (R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee (2) ). [Counsel was stopped upon the question whether prohibition would lie to the Court of Marine Inquiry.] If proceedings are commenced in a Court to which certain powers are given to be exercised at its judicial discretion that Court cannot disclaim that it is going to exercise that discretion. 'The Court of Marine Inquiry had no jurisdiction to deal with this _ matter. It had no power to make an inquiry merely for the purpose of a report and it had no jurisdiction to deal with the certificates of the officers because of the provisions of the Merchant Shipping

(1) (1924) A.C. 328, (2) (1924) 1 K.B, 171, at p. 193.

'Tue Kine v. TURNER ; EX PARTE Marine Boarp or Hopart. 'TASMANIA v. THE Common- WEALTH.

Tae Kiva v TURNER ; Ex PaRTE Marine Boarp or Hoparr. 'TASMANIA v

Acts. Sec. 478 of the Merchant Shipping Act 1894 does not auth the Commonwealth Parliament to legislate with respect to all s in waters used by ships engaged in foreign and inter-State trade commerce. The Possession in which a British ship's port of re tion was, had power before Federation to legislate with respect that ship. The Commonwealth Parliament in passing the Navigation Act appears to have assumed that it had under the trade and commerce power a further power in respect of a ship b it was registered in the Commonwealth and a further power to legislate because certain waters were used by ships which engaged in foreign and inter-State trade or commerce. The last power is based on the United States authorities, but there is nothing in the Constitution to support it. It is not incidental to the po given by sec. 98 of the Constitution that the Parliament should have power to deal with ships in a port over which the State h

control. The Parliament has power to prevent ships engaged i foreign and inter-State trade or commerce from being interfered with in carrying out that trade or commerce, but it has not to upset the whole arrangements of a port by enacting that engaged in that trade and commerce shall adopt a course irres of that prescribed for other ships. 1, cannot direct an inquiry to the conduct of ships which have no connection with foreign a inter-State trade or commerce.

Keating, for the State of Tasmania intervening, and McTi A.-G. for N.S.W. (with him Moore), for the State of New Wales intervening, adopted the arguments of Sir Edward Mita KC.

Owen Dixon K.C. Tf it be conceded that the Court of Ma Inquiry is a Court established for the purpose of exercising the judicial power of the Commonwealth and is badly constituted, whe the powers which this Court is given are examined, there is 2 cause of action disclosed by the statement of claim : no title is sho to relief by way of declaration or injunction. The State has no! cause of action by reason of the fact that the Legislature of the

Commonwealth has exceeded its powers and that Turner intends t

exercise the powers supposed to be conferred upon him. The right H. C. or A.

of the Attorney-General of Tasmania to protect the public rights nels

of citizens of Tasmania is not denied; but he has no right of action Tae Kuve

f v because the Commonwealth Parliament erroneously usurps a power Turner;

of legislation. The assertion by the Parliament of the Common- a

wealth that it has a particular power of legislation gives no cause - Boarp or Hoparr.

of action to a State which claims an exclusive right to legislate upon

the same subject. Such a cause of action is not supported by as Attorney-General for New South Wales v. Brewery Employees Union Gas

of New South Wales (1) or Commonwealth v. Queensland (2) or WEALTH. W. & A. McArthur Ltd. v. Queensland (3). No rights of the Crown, as represented by the State of Tasmania, have been or will be invaded by what has been or will be done. All that has happened is that a person at the request of a Minister of the Crown for the

Commonwealth is making certain inquiries. The only coercive "powers the exercise of which could be threatened are to require that certain persons shall attend or that certain documents shall be produced. Those powers would be exercised against particular a and not against classes of persons. Turner's position depends on whether he is an officer of the Commonwealth. He may be the object of an injunction but not of a declaration of right, and he may be brought within the general jurisdiction of the Court if the matter is one which is dependent on the interpretation of the Constitution. There is no power to restrain Turner from sitting as a Court of Marine Inquiry, nor is there power to restrain him from holding an inquiry in which an order affecting the certificates of the officers may be made. If the allegations of fact are true, they do not show a want of jurisdiction. The jurisdiction depends upon the relevance of the facts to the control by the Parliament of the Commonwealth over foreign and inter-State trade and commerce and over the conduct of persons having authority from the Parliament to engage in that trade and commerce. Since those officers hold certificates under a State Act which has the force of law under sec. 24 of the Navigation Act and since the casualty took place in waters used for foreign and inter-State trade and commerce, the

~ (1) (1908) 6 C.L.R. 469. (2) (1920) 29 C.L.R. 1. (3) (1920) 28 C.L.R. 530.

Tae Kive ® 'TURNER ; EX PARTE Marine Boarp or Hozarr. TASMANIA 2.

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

apply to the Constitution of the Commonwealth. The last words H. 0. or A. -of sec. 18 (2) of the Interpretation Act 1889 show that since Federation ihc

-the Commonwealth has been the British Possession with respect to Tue Kine

Australia and the States have ceased to be British Possessions. coceaaehatl [Isaacs J. referred to Sir Henry Jenkyns's British Rule and "5 "A8t®

Jurisdiction beyond the Seas, p. 2.) Boarp Where inter-State and intra-State traffic are intermingled, the aber TASMANTA

trade and commerce power (sec. 51 (r.) of the Constitution) extends or -to the whole, and it is within that power to deal with intra-State ce -ships which are navigated negligently across the course habitually | weavrs.

used by foreign or inter-State ships. The accepted view in the

United States is that, if waters are capable of being used for inter- State commerce, they are within the jurisdiction of Congress (Willson vy. Black Bird Creek Marsh Co. (1); Minnesota Rate Cases (2); Southern Railway Co. v. United States (3) ). The Court of Marine Inquiry has not vested in it any judicial power of the Commonwealth. Although called a Court of Record and given power to summon witnesses, it is not given power to ascertain or declare rights or to make orders enforcing rights. 'The vesting of the judicial power of the Commonwealth in a Court does not depend upon the description -of the Court but upon its functions (see Coomber v. Justices of Berks -(4); Waterside Workers' Federation of Australia v. J. W. Alexander Iid. (5)). The ascertainment of facts in order that administrative action may be taken is not judicial. A report and inquiry by the Harbour-Master of Hobart under sec. 125 of the Marine Act 1921 -(Las.) is not an inquiry by a competent Court or tribunal within «sec. 364 (2) (a) of the Navigation Act. A tribunal which comes within that sub-section is a body which takes evidence from persons before it; it conducts its business by means of a hearing and not by private inquiry (see R. v. Industrial Registrar ; Ex parte Sulphide "Corporation Ltd. (6) ).

Ellis, in reply. The words of sec. 364 (2) (a) are very wide and cover any form of investigation. In view of the powers which are 'conferred on the Court of Marine Inquiry it is a judicial body and,

(1) (1829) 2 Peters 245, at pp. 250, 251. (4) (1882) 10 Q.B.D. 2

(2) (1913) 230 U.S. 352, at p. 399. (5) (1918) 25 C.L.R. (8) (1911) 222 U.S, 20. (6) (1918) 25 C.L.R. 9.

Tae Kine S TURNER; EX PARTE Marre Boarp or Hopart. 'TasMANIA v.

as it is not constituted as required by sec. 72 of the Constit prohibition will lie. An inquiry by the Court of Marine Inqui much more than an inquiry to find out whether the matter is o in which it has jurisdiction. The proclamation of the Court Marine Inquiry for Tasmania on 4th October 1923 purporting t be made under sec. 356 of the Navigation Act, the Commony cannot now rely upon the power conferred by sec. 478 of the M Shipping Act. This case is governed by Newcastle and Hw River Steamship Co. v. Attorney-General for the Commonwealth (1). No distinction of substance can be drawn between provisions as tc the adequate manning of ships and those as to navigation rules fe the avoidance of collisions. There is no necessary implication foreign or inter-State trade was interfered with. Sec. 478 of Merchant Shipping Act does not confer upon the Commonwealtl Parliament power to authorize a tribunal to inquire into this casualty. The provisions, restrictions and limitations referred to in sec. 478 (2) include those imposed by the Constitution, so that the wealth Parliament has jurisdiction only over ships engaged in foreign or inter-State trade or commerce. The States have not by of see. 18 (2) of the Interpretation Act 1889 lost their powers unde the Merchant Shipping Act. The State of Tasmania has a good of action. The Constitution of the Commonwealth has er mutual rights and mutual restrictions as to legislation, and a may come to the High Court and complain of a violation by Commonwealth of the rights or duties so created.

[At this stage of the argument the amendments of the statem of claim and the demurrer thereto were filed.]

Sir Edward Mitchell K.C. On the facts as they now appear th case is governed by Newcastle and Hunter River Steamship Co. v. Attorney-General for the Commonwealth (1), to the extent that discrimen in sec. 2 (1) (b) of the Navigation Act is not such as to bring this case within the Commonwealth legislative power.

Owen Dizon K.C. Since the amended statement of claim case has no relevance. No support is given to the defendants

sec. 2 (1), but sec. 2 (2) can be relied on as cutting down the words of sec. 2 (1). The circumstances of this case are such as to leave it within the Navigation Act. It is now clear that the ships were within the words of sec. 2 (1) (6).

Sir Edward Mitchell K.C. Sec. 2 of the Navigation Act is necessarily asection conferring jurisdiction. If sec. 51 (xxxrx.) of the Constitu- tion can be used to support sec. 364 of the Navigation Act, it is because sec. 364 is incidental to the power as to shipping and navigation so far as that is ancillary to foreign or inter-State trade or commerce. Sec. 51 (xxxtx.), however, is limited to matters which are incidental to some actually existing power conferred by statute (Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1); Amalgamated Society of Engineers v. Adelaide Steamship Co. (2)). The only justification for sec. 364 of the Navigation Act is to be found in sec. 2 (1) (6), and that sub-section adopts a different discrimen from foreign or inter-State trade or

commerce, namely, the use of waters by ships engaged in such trade or commerce. As to sec. 478 of the Merchant Shipping Act 1894, sec. 356 of the Navigation Act was obviously intended to create a Court from which an appeal would lie to the High Court and not to the Court mentioned in the Merchant Shipping Act.

Kyox ©.J., Gavan Durry, Ricn anp Starke JJ. The object of the demurrer in this case is to obtain from the Court a decision as to whether a Court of Inquiry established under the provisions of an Act of the Legislature of Tasmania intituled the Marine Act 1921 or the Court of Marine Inquiry erected under the provisions of Part IX. of the Navigation Act 1912-1920 is the proper tribunal to inquire into and finally deal with a casualty occurring under the circumstances set out in the statement of claim, and we propose to deal with it on that footing. It is not disputed that the Tasmanian

(1) (1914) A.C. 237, at pp. 256, 257; 17 C.L.R. 644, at p. 655, (2) (1920) 28 C.L.R. 129.

Tue Kine v. 'TURNER ; EX PARTE MarinE Boarp or Hopart.

Marne Boarp or Hoparr. TASMANIA v Tae Common- WEALTH.

• statute purports to give to its tribunal the power which it seeks ¢

exercise, but for the Commonwealth it is argued that for two re its tribunal supersedes the Tasmanian Court.

In the first place, it is said that under the powers conferred sec. 51 (1.) of the Constitution the Parliament of the Commony has the right to erect a Court with exclusive power to deal with casualty, and that it in fact has done so under Part IX. of Navigation Act. In the second place, it is said that, whether this be so or not, sec. 478 of the Imperial Merchant Shipping Act enables the Parliament of the Commonwealth to authorize Court of Marine Inquiry to make inquiries into this oe a that Parliament in fact has done so.

With respect to the first contention, Part IX. of the Navy Act is said to give to the Court of Marine Inquiry the power y is now asserted on its behalf, because, as modified by sec. 2 (1) (b) of the Act, it enables such an inquiry to be made with respect such casualties when they occur on the high seas or in waters ¥ are used by ships engaged in trade or commerce with other countrie or among the States. The casualty in this case is said to come within this description, because wher the collision occurred bo vessels were in the waters of the River Derwent, and, if this is n ot enough to satisfy the words of sec. 2 (1) (6), it is said that the of the collision was so near the course ordinarily used by engaged in trade or commerce with other countries that the colli vessels were then in fact in waters which are used hy such vei within the meaning of the sub-section. It is ummecessary to determine the exact meaning of sec. 2 (1) (6). It has already

v. Attorney-General for the Commonwealth (1), that sec. 51 (1) as enlarged by sec. 98 of the Constitution enables Parliament to de with navigation and shipping only by making laws which a ancillary or relevant to trade or commerce with other countries among the States. Adopting that test, we thought that Parliamer was not at liberty to regulate the manning of ships not engaged inter-State or foreign trade or commerce merely because they on the high seas or in waters used by ships engaged in such trade or

commerce. Adopting the same test in this case, we think that Parliament is not at liberty to direct its Court to deal with a collision between two vessels not engaged in inter-State or foreign trade or commerce merely because the collision occurred in a navigable _ river in a State, at a short distance outside the course ordinarily used by ships engaged in such trade or commerce, and shortly after the colliding vessels had traversed part of as the Navigation Act purports to enable vhe Court of Marine Inquiry to inquire into a casualty occuring in the circumstances set out in _ the statement of claim, we think it goes beyond the powers conferred by the Constitution and is to that extent invalid, because none ol _ the facts set out in the statement of claim indicate that there is any telation between the casualty and inter-State or foreign trade. For the purpose of this case it is not necessary to inquire further as to the validity of any portion of the Act. It has been suggested that, even if the statement of claim contains nothing to show that the casualty had any relation to inter-State or foreign commerce, there _ may be other facts, not set out in the statement of claim, which show that such a relation does exist, and that in order to succeed the plaintiffs must negative the existence of such facts. We think that the statement of claim must be taken to negative the existence of any such facts. Originally, the defendants not only demurred, but pleaded to the statement of claim, but, in order that the point at issue might be finally settled, it was agreed between the parties that the statement of claim should be amended so as to state all relevant facts, and that the defence should be withdrawn ; and

With respect to the second contention for the defence, we think that the effect of sec. 478 of the Imperial Merchant Shipping Act 1894 is merely to enable legislatures of British Possessions to enlarge the territorial jurisdiction of ther Courts, but not otherwise to alter the nature of their powers. Sec. 478 (2) provides that a Court or tribunal so authorized shall have the same jurisdiction over the matter in question as if it had occurred within the ordinary juris- diction of the Court or tribunal, but subject to all provisions, Testrictions and conditions which would have been applicable if it had so occurred. We do not think that under the section Parliament

ee Tae Kine v. TorNER ; Ex PARTE Marve Boarp or Hozarr,

Tue Kine v. 'TURNER ; EX PARTE Marine Boarp or Hoparr.

can alter the nature of the jurisdiction exercised by any Con wealth Court, so as to affect the division of powers which 1 Constitution makes between Commonwealth and State. No qu of the area of territorial jurisdiction exists here, and any di of the provisions of sec. 478 is therefore irrelevant to the qu which we have to decide.

Isaacs J. Unless the doctrine of 'implied prohibition discredited by the Privy Councii in Webb v. Outrim (1) and dis by this Court in the Engineers' Case (2), be, consciously or nec sciously, revived and re-applied to the Constitution, this matte appears to me to stand transparently plain in favour of the Common wealth. It is from the trade and commerce clause (sec. 51 (1 that it has, in effect, been sought in the present case to resu once familiar "implied prohibition."

The event out of which the litigation arises, like many othe which have given rise to great issues, was in itself comparat small. But on the decision depends, as will be seen, the power © any authority in Australia in many cases to protect, not merel property at sea, but even the lives of passengers and crew. facts are simple as it happens. In 1926 a shipping casualty occur ed in the Port of Hobart, caused by a collision between two registered in Tasmania. The vessels were engaged only in intra-St trade, and no other vessel is concerned. The actual place of t collision was in the waters of the Port, not in the " course ordinaril} used" by vessels engaged in inter-State or foreign trade, bu immediately after leaving that course. The State of Tasma insists that it alone has authority to investigate the casualty, and to oust the Commonwealth tribunal which is proceeding with inquiry; and, on the other hand, the Commonwealth main that it has at all events the right to make the inquiry, and incids asserts that its authority is exclusive of that of the State.

There are two proceedings, prohibition and action. If it necessary to deal with the question of procedure I should requir further consideration as to whether this is in any event a proper

(1) (1907) A.C. 81; 4 C.L.R. 356. (2) (1920) 28 C.L.R. 128

case for prohibition. (See, for instance, In re Clifford and O'Sullivan (1).) But, in the view I take of the main questions, except to say that I am perfectly clear the plaintiffs would have no locus standi to proceed against the Commonwealth merely on the ground that the case was not covered by the Act in point of construction, I do not stop to address myself to procedure. I gu on at once to examine the real rights of the parties. Those rights are brought under examination by the Commonwealth's demurrer to the statement of claim.

There emerge from the Commonwealth's arguments in support of the demurrer, three grounds : -

The first is that this controversy, whatever be the substantive law, is not a "matter" within secs. 75 and 76 of the Constitution. This contention is unsustainable for the reasons stated in the Union Label Case (2) and the Queensland Income Tua Case (3).

The second is that the facts do not show that the ships concerned are excluded from the operation of the Navigation Act by par. (b) of sub-sec. 1 of sec. 2 of the statute. If they de, there is at once _ an end of this demurrer, because, whatever the legislative power of

the Commonwealth, the conclusion would mean that it had not been

exerted so far as to cover this case. I agree, however, with the second contention of the Commonwealth, and therefore hold that the plaintiffs cannot succeed merely on the ground that the statute on its true construction does not apply to the case. My reason, _ based upon the allegations, is that it is not averred that the ships were not at the essential time in "waters which are used" by inter-State and foreign trade vessels, but the averment is merely that they were not in "the course ordinarily used" thereby. The first phrase is a not unknown form of expression, as, for example, in

Weeks v. Ross (4), and is larger than the second, which is a very

familiar expression. This will more clearly appear later. I must

add that in my opinion the mere fact that a Commonwealth tribunal is exceeding its jurisdiction as created by a valid Commonwealth statute would not confer upon a State, or a rival State tribunal,

a locus standi here to restrain the Commonwealth tribunal or to

(1) (1921) 2 A.C. 570. (8) (1920) 29 C.L.R., at pp. 11, 12. (2) (1908) 6 C.L.R., at pp. 557, 558, (4) (1913) 2 K.B. 229, at p. 234.

a national life called " navigation and shipping," so far as it bore a

substantial relation to the ordinary trade and commerce as ordinarily ae understood and confided to Commonwealth regulation by sec. 51 (1.). Gas ane

The case of Australian Steamships Ltd. v. Malcolm (1) was founded wears. on this view. In that case I observed (2): "As trade and commerce Isaacs J. with other countries, and the greater part of mercantile inter-State trade, would in itself necessarily involve carriage by means of ships,

it is difficult to see how the declaration of extension to 'navigation

and shipping' has auy substantial meaning unless the subject matter _ of 'navigation and shipping,' so far as concerns foreign and inter- State traffic is to be included in the 'trade and commerce' _ controllable by the Commonwealth." My brother Powers (3) said that "the words ' navigation and shipping' were used in sec. 98 to enable the Commonwealth Parliament to do all that could be done _ by the grant of the power to deal with navigation and shipping in

the widest sense, so far as it was part of or used in connection with inter-State commerce." And further on my learned brother added an observation with which I cordially agree : "I cannot accept the contention that the British Parliament added these words in sec. 98 without any intention to add to a power previously conferred by

sec. 51 (1.)." That added power is, of course, an enlargement of the main power, and is not merely an incidental power. Incidental powers are expressly provided for in sub-sec. xxxrx. of sec. 51. Both my brother Powers and I indicated our agreement with the principle laid down in the American case of the Second Employers' Liability Cases (4), namely, "a real or substantial

"within the range of this power." As I read the joint judgment of my brothers Gavan Duffy and Rich, the view is likewise expressed

., at p. 339, (2) (1914) 19 C.L.R., at p. 327. (4) (1912) 22:

Tae Kine v 'TURNER ; Ex Parte Marve Boarp or Hozarr,

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

power. That may be so. But the matter is vitally diffe when we have to deal, not with purely interior arrangemen but with action necessarily fraught with possible danger t

(1) (1914) 19 C.L.R. 298, (2) (1921) 29 C.L.R. 357.

others. For that, the Newcastle and Hunter River Steamship Co.'s H.C. ov A. 'Case (1) is to my mind no authority. I cannot, for instance, nae

conceive of anyone urging it as determining that a provision in the Tue Kine Commonwealth Navigation Act declaring that no ship, even though porvnr; engaging in purely intra-State trade, or even not engaged in any =X PARTE

: 4 Marre trade whatever, should cross the bows of an inter-State ship at | Boarp

'A Be. Pia Scie oF Hoparr. night, within a certain distance, or lay a mine in its path, or give == misleading signals in fog or at night, so as to endanger inter-State TS™4™™* -or foreign shipping, was not within the power of the Parliament. Peet:

But if so, how can it be consistently contended that all Australian weatrn. ships that voluntarily navigate the " waters which are used by ships Isaacs J.

engaged in trade or commerce with other countries or among the States," and so bring possible peril to those ships. cannot be required to observe necessary caution, or what the Commonwealth Parliament, the only authority competent to determine what caution is necessary, thinks is needed to protect its trade and commerce ? During the argument various imaginary regulations for a port were instanced, and their validity was denied. Possibly that was correct. The Newcastle and Hunter River Steamship Co.'s Case (1) determines that some categories of regulation are beyond the Commonwealth power. But that is indecisive. and indeed irrelevant, unless the -suggested regulations are admitted to have "a real and substantial relation" to the trade and commerce power. But when we have to deal with " navigation and shipping," as that is judicially, and I should "Say necessarily, understood, every provision reasonably calculated to -avoid even the risk of collision has a real and substantial relation to the admitted subject matter. A sense of humanity forbids any lessening of this principle. In The Beryl (2) Brett M.R. said in a passage now classical : - '' I take it that the basis of the Regulations for Preventing Collisions at Sea is that they are instructions to those 'in charge of ships as to their conduct; and the Legislature has not thought it enough to say, ' We will give you rules which shall prevent -a collision'; they have gone further and said that 'for the safety of navigation we will give you rules which shall prevent risk of collision.' It is not enough if you do only that which will apparently _ "prevent a collision ; we will give you rules which shall regulate your

(1) (1921) 29 C.L.R. 357. (2) (1884) 9 P.D. 137, at p. 138.

conduct, not merely for the purpose of preventing a collision for the purpose of preventing even a risk of collision." are weighty words; they do not rest on any technicality ; indicate that those who framed the regulations, and the Judges interpreted them, recognized that navigation has inherently
special features. The vessels cannot be separated from the they navigate, and sea perils are such as to need, for the sa protecting those who encounter them, treatment beyond that is sufficient for land transit. And this is the centre of the matt 3. " Waters which are used." - It is argued that the "waters" in par. (b) of sec. 2 (1) is too wide, even for the purp I have stated. That needs examination. It is a trite maxim interpretation that unless language is quite intractable it must read so as to preserve its validity. That is a general principle | construction applicable to all documents, and particularly to A of Parliament, in order not to thwart unnecessarily the ex will of the community. Macleod v. Attorney-General for New S Wales (1) is the leading authority. Judges are not tyrants; are they legislators ; and though their own duty is independent a inescapable, it cannot be forgotten that the will of Parliament i

supreme, unless clearly beyond its authority. Those consideratio

would lead me in this case, even apart from sub-sec. 2 of see. 2, to construe " waters" in such a reasonable manner as to be free all possible excess. There is no necessity whatever to strain the extravagant limits suggested for the plaintiffs: it is capa and more than merely capable, of a much narrower conno suitable to the subject matter, and that should be accepted. in the presence of sub-sec. 2, the plaintiffs' position on this poir is wholly indefensible. When Parliament adds to its words dictionary, saying (inter alia) that the word "* waters " is to be ea

interpret sub-sec. 1, not as it stands in the Act, but as it would s in another Act in which sub-sec. 2 did not appear. Therefore,

a too widely extended meaning and also of one within the legis- lative authority of the Commonwealth, I should feel compelled by judicial precedent and respect for the declared will of the community in which I live to adopt the one which would preserve the legislation rather than one which would destroy it.' Waters which are used " by ships engaged in trade and commerce with other countries and 'among the States, are waters that such ships use, not merely "ordinarily, but even occasionally, so long as the ships do use them, asa 'matter of established fact, whenever varying circumstances require that portion of the navigable earth's surface to be used for the purpose.

Ordinarily the most convenient course will no doubt be adopted. a ut circumstances may render it necessary at times to deviate from "that particular course and to follow another less usual course within the same recognized area. When as a matter of common practice a further tract of water is adopted as part, though it may be a less frequented part, of the highway, it becomes portion of the "' waters

used" by the named classes of ships. The voluntary assumption by a vessel engaged in intra-State trade only of a course in an area of waters where the presence of other vessels engaged in foreign or inter-State trade may reasonably be anticipated, because it is "used" by them, creates an undoubted risk which it has always been the central object of " navigation and shipping " practice and "judicial decision and legislation alike to prevent. The common dangers of that species of trade and commerce called " navigation" _ by means of its necessary instruments " shipping," the accidents of storm, fog, tides, currents and mishaps to equipment and machinery leaving a vessel at the mercy of the elements, are all to be taken into account, both in gauging the extent of the power conferred and in interpreting the language of the Legislature. Such considerations are, to my mind, unanswerable reasons for requiring all vessels assuming to enter upon the sea "used" by the class of vessels mentioned to be under control for the safety of foreign and inter-State commerce. That area is' not, of course, limited to the precise course ordinarily taken: there must be such an area as will allow of a sufficient margin for meeting in seamanlike manner the Vicissitudes of navigation. That area is, in my opinion, well described by the words "the waters used," for that means the area

Tue Kine vw TURNER ; EX Parte Marine Boarp or Hopart.

actually used and which experience has shown to be neces within which safety must be provided for. But it is, in my o altogether extravagant to spread the term " waters " in this e so as to cover portions that are not so used at all, simply beca another sense they may be regarded as identified with the s expanse. A few simple illustrations will, I think, make this If we were to speak of " waters which are used by ships en trade and commerce" between England and America, it is 1 that they would use waters of the Atlantic Ocean: but would mean all the waters of the Atlantic from pole to pole?' If, we speak of waters that are used by vessels trading between Pt Said and France, who would dream of including the Aigean Sea the Adriatic? If the words were "' waters which were used by yess engaged in trade and commerce between Folkestone and Dieppe one could hardly include the whole of the North Sea; or, if tradi between Australia and Ceylon, incorporate the whole Indian Oc: It is equally unreasonable to say that the waters used by P. liners between Perth and Adelaide comprise the whole Ocean, or that the waters of the Gulf of Carpentaria, Hobson's B and Sydney Harbour that are in fact used by foreign comm ships necessarily include as a matter of law every little bay |

as a matter of actual fact foreign and inter-State commerce di practice, for the purpose of their navigation, use all those v then that is necessarily, for the reasons above stated, a com concession of legislative jurisdiction in respect of them. Marsd in Collisions at Sea, 8th ed., p. 51, says : - '* Many years before th rule of the road at sea was regulated by Act of Parliament, practice of seamen had established rules to enable approaching to keep clear of each other. These rules, which are the found: those now in force, were well established by custom, and formed p of the general maritime law administered by the Admiralty Court. The foundation of that is, in one word, "safety." Let us apply 1 to the rule of the Admiralty Court as to the extent of the " waters which the Court in such cases regards. In The Europa (1)

Lushington said :~-" The Iron Duke was on a voyage from Dubl

ate a vessel with probable risk to the lives of others. The great principle is the chance of injury to life." The learned Judge goes on to apply his observations to the destruction of property as well as to the destruction of life. He further considers the application of the principle in what he calls "" the broad Atlantic," and he proceeds to consider the likelihood of vessels being met with in a locality in that ocean in which the ship concerned was navigating. He says: "Tt is probable the place of meeting would be somewhere in that ality." It is hard to see how the same idea could be better pressed than in the words of the Federal Act, so long as the words are read conformably to the subject matter and the great principles involved. Weeks v. Ross (1) was a case concerned with a ship using a canal which was used by sea-going ships for the purpose of going to and from Exeter, that is, from and to the sea. That is alled by Lord Coleridge J. (2) "' waters which were used by ships coming from the sea to the docks and back again." In The Algol

) Hill J., in considering negligence, speaks of a new danger to navigation in "'an area of the high seas which . . . included the area in which the" ships "were navigating." Lower down he tefers to the "locality in which the ships were navigating." The verbal expressions are different, but the effect is the same as in the Federal enactment. As to some statutory regulations, the discrimen, : whieh, though one of discretion in relation to sec. 478 of the Merchant Shipping Act 1894, is one of power in relation to the Constitution, May, as with respect to manning and accommodation, be too wide. But it is divisible (sub-sec. 2 of sec. 2); and as to sec. 364, permitting of inquiries respecting collisions which may involve dangerous -havigation with risk to inter-State shipping, there is no doubt in my mind that the legislation is valid.

One other point argued should be mentioned, namely, whether he circumstance that the Court of Marine Inquiry is declared by sec. 396 a Court of Record is such a breach of the judicature provisions

(1) (1913) 2 K.B, 229, (2) (1913) 2 K.B., at p. 234. (3) (1918) P. 7, at p. 12.

Tue Kine v. TURNER ; EX PARTE Marve Boarp or Hoparr,

ee) Tue Kine v TURNER ; Ex PARTE Marine Boarp or Hogar.

of the Constitution as to invalidate the whole of Part IX. Act. Notwithstanding the truth that the Marine Court is Court within the judicature provisions, the answer to the obj is that the functions committed to it are not necessarily j They are such as may be, and not infrequently are, entrust administrative or quasi-administrative bodies as well as to judicial bodies, and so, whatever might be otherwise thought, sub-sec. sec. 2 is clear to maintain the validity of sec. 364, so far as tl particular objection is concerned. In relation to sec. 364 it mu be remembered that, whether the powers thereby conferred judicial or not, they are by sec. 478 expressly conferrable upon. " Court or tribunal," and therefore we are not limited in this re by the judicature sections of the Constitution. '

In my opinion judgment should be given for the Commonweal

Hicerns J. The Marine Board of Hobart, created un Tasmanian Act, seeks to prevent the (Federal) Court of Marit Inquiry from making an inquiry into a collision between two s ships, the Cartela and the Togo. The collision took place in t Port of Hobart on the River Derwent; and at the time of th collision the vessels were not engaged, directly or indirectly, in an} inter-State or foreign commerce. The Constitution gives to th "with respect to -

Federal Parliament power to make Jaws trade and commerce with other countries, and among the s (sec. 51 (1.)); and under sec. 98 this power extends to navig and shipping; but there is no power given to make laws

Hobart that the Federal Court has no power to inquire into 1 collision under such circumstances.

It should be observed that under neither of the proceedin framed, under neither the application for prohibition nor the does the Commonwealth seek to prevent the State authority f making an inquiry into the collision. The State authority see prevent the Commonwealth authority from inquiring, saying

As to the proper form of proceeding under the circumstances, IH. ©. or A. cannot agree with the argument for the Commonwealth that pia _ prohibition is not appropriate. Having regard to cases such as Tur Kiva R. y. Electricity Commissioners (1), I regard the proceedings before wideout

the (so-called) Court of Marine Inquiry as judicial so far as to make eras them a fit subject for prohibition even if that Court is not in the Bee or Hoparr. strict sense a "Court." Indeed, the Commonwealth Court of Conciliation has been held not to be a '' Court" in the strict sense Tastint when making awards in industrial disputes (Waterside Workers' Gaus

~ Rederavion of Australia v. J. W. Alexander Lid. (2)); and yet the Weaurs. 7 remedy of prohibition can be applied (Tramways Case [No. 1] (3); Higgins J Builders' Labourers' Case (4) ). Personally, J should have felt much more doubt as to the action for a declaration and an injunction. I have expressed my views on this subject on previous occasions (W. & A. McArthur Ltd. v. Queensland (5); Commonwealth v. Queensland (6); Luna Park Tad. y. Commonwealth (7) ): but I need not repeat these views, as the majority of my learned colleagues hold a different opinion. The first question that arises is as to the true construction of the Federal Act - the Navigation Act 1912-1920: does this Act purport to allow such an inquiry as that on which it has embarked? The

second question is, if it does so purport, is the Act in this respect beyond the powers of the Federal Parliament, and void ?

As to the Construction of the Act - If the Act does not authorize the inquiry, we need not trouble ourselves as to the meaning of the Constitution. This Court of Marine Inquiry has been established iy the Governor-General as from Ist October 1923, under sec. 356 of the Federal Navigation Act; and under sec. 364 it is given

• jurisdiction as to all casualties affecting ships "(b) where a ship- _ wreck or casualty occurs in any part of the world to a British ship _ tegistered in Australia"' The two steamers are British ships so -Tegistered ; and, prima facie, the power to inquire applies to them. Z But sec. 2 (1) (b) of the Act provides that the Act shall not apply in relation to any river and bay ship unless the ship is on the high

(1) (1924) 1 K.B., at p. 191. (4) (1914) 18 (2) (1918) 25 C.L.R. 434, (5) (1920) 28 ©. (8) (1914) 18 C.L.R. 54. (6) (1920) 29

H.C. or A. seas " or in waters which are used by ships engaged in trade or co

pass with other countries or among the States."" Jt is clear that the

Tue Krye of the River Derwent, the waters of the Port of Hobart, are u ¢ by such vessels so engaged, although these vessels were not we engaged at the time of the collision. The only difficulty as to eae meaning of the Act that I can see is as to the meaning of the w

• | "waters." The collision occurred at a point where normally fo TASMANIA : 4 : a or inter-State steamers would not run, entering or departing Pieccad are we to take "waters" in the narrow sense of the partic

WeaLtH. - qaterway which such steamers would normally use, or in the broad

Higgins J. sense of a whole body of water available for such steamers - her in a definite river or bay? In my opinion, the latter is the meaning - in the words of the Standard Dictionary, " any partic body of water, as a lake, a river, or a sea: sometimes used in plural; as the waters of Lake Superior." According to this construction, the framers of the Act intended, rightly or wrongl that the Federal Court of Marine Inquiry should have power t inquire into collisions that occur in rivers or bays that are use for inter-State or foreign trade. So far as the Act is concernec however, they must be actually so used in practice; it is n sufficient that they are merely capable of being so used. In other words, the Act is based on the theory that whatever tends to a or hinder vessels in bodies of water which are in use for inter-Stat or foreign trade is a Federal concern, and a fit subject for Fede a inquiry.

But then comes the question, is this theory warranted by Constitution ? In my opinion, it is. The power conferred by Constitution is to make laws "with respect to . . . trade al commerce with other countries, and among the States"; a (sec. 51 (xxxrx.)) "with respect to matters incidental to execution of any power vested by this Constitution in the Parliament." Whatever rules the Federal Parliament thinks fit to lay down for the movement of inter-State or foreign commerce, are within power of the Parliament; and the rules do not cease to appl} because vessels engaged in intra-State activities solely are affect é by the particular collision. Under sec. V. of the Constitution Act, all laws made by that Parliament are " binding on the Courts, Jud

and people of every State . . . notwithstanding anything in the laws

of any State"; and under sec. 109 of the Constitution "when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." The Commonwealth law is paramount. Nor does the fact that the State has made laws for inquiry as to causes of collisions prevent the operation of a Commonwealth law for such inquiries in the interest of inter-State and foreign commerce. There is no limit to the power of the Commonwealth to make laws as to operations of navigation provided that the laws are with respect to inter-State or foreign commerce. The State has no reserve powers, no residuary powers, except so far as the Common- wealth powers exerted with respect to one of the express powers

_ granted to the Commonwealth Parliament do not apply (Amalgamated

Society of Engineers v. Adelaide Steamship Co. (1) ). As Marshall C.J. of the United States stated in Gibbons v. Ogden (2), the power of Congress to regulate commerce among the several States is supreme and plenary : It is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." It was on this principle that we decided in Stemp v. Australian Glass Manufacturers Co. (3) that the power of the Federal Parliament to make laws with respect to conciliation and settlement of industrial disputes extending beyond the limits of any one State involved a power to prohibit strikes and lock-outs, as strikes and lock-outs tend to spoil the efforts of the Court of Conciliation to prevent and settle disputes by reason instead of by forcee - economic force.

The Constitution of the United States resembles our Constitution in committing to the Federal power the regulation of inter-State and foreign commerce but not intra-State commerce; so that the same difficulty has had to be faced by the Supreme Court of the United States. Hughes J. of the Supreme Court of the United States, stated the position in a luminous and comprehensive judgment (Minnesota Rate Cases (4) ): - ' There is no room in our Scheme of government for the assertion of State power in hostility

(1) (1920) 28 C.L.R. 129, (3) (1917) 23 C.L.R, 226. (2) (1824) 9 Wheat. 1, at p. 196. (4) (1913) 230 U.S., at pp. 399 et seqq.

Tue Kiva v 'TURNER ; EX PARTE Marine Boarp or Hopart. TASMANIA v THE Common- WEALTH.

Tus Kine ® TURNER ; Ex Parte Marwe Boarp or Hoparr. 'TASMANIA % THe Comaon- WEALTH.

• inter-State trade, &c.; "but within these limitations,

to the authorized exercise of Federal power. The a Congress extends to every part of inter-State commerce, and every instrumentality or agency by which it is carried on; and full control by Congress of the subjects committed to its regulat is not to be denied or thwarted by the commingling of inter and intra-State operations. This is not to say that the Nation n deal with the internal concerns of the State, as such, but that the execution by Congress of its constitutional power to regulate State commerce is not limited by the fact that intra-State transact may have become so interwoven therewith that the effective go ment of the former incidentally controls the latter. This conclusi necessarily results from the supremacy of the national power its appointed sphere." Then, after pointing out that the pow in question was not a case of necessarily exclusive power in the learned Judge added : " In other matters, admitting of diy of treatment according to the special requirements of local ditions, the States may act within their respective juris until Congress sees fit to act; and, when Congress does act, th

necessarily remains to the States, until Congress acts, a range for the permissible exercise of power . . . a inter-State commerce may be affected. . . . In such case (such as pilotage, construction of dams and bridges, wharl charges, quarantine regulations, &c.), "Congress must be

This judgment of Hughes J. is very elaborate ; it is practi treatise on the Federal commerce power in all its numerous as] It shows how the limited commerce power is treated as the result: 'an experience of some 140 years, by this great nation in Americ in its multitudinous trading activities; and it is very illuminatin

for the purposes of a Constitution such as ours which has adopted }- ©. or A.

• the same limitations as to commerce. The principles stated have been applied in many concrete cases ; but I propose to cite one only
• the case of United States v. Governor Robert McLane (1). There it was held that steam vessels actually belonging to the State of Maryland, and used for the enforcement of the State fishery laws,

_ the protection of oyster beds, &c., in Chesapeake Bay, must obey the laws of the United States as to inspection. As the judgment stated, the Supreme Court had interpreted the Constitution "as having by the commercial clause given to Congress the exclusive power to regulate navigation upon the public waters of the United States, so that all vessels which navigate those waters, whether engaged in commerce, local or inter-State, or for purposes of pleasure simply, may be alike subjected to the regulations which Congress prescribes, with those exceptions only which Congress deems it wise to make. It may be impossible to regulate navigation upon certain of the public waters and highways of commerce by regulating only a portion of the vessels navigating them. Rules of navigation,

to be of effectual avail for the protection and safety of those vessels which are engaged in commerce with foreign nations and among the States, must control also those vessels not engaged in that commerce, which navigate the same waters. . . . And it is also apparent that Congress proceeds upon the theory that proper regulation requires that all vessels in those waters shall be subject to one uniform system." Reasoning such as I have quoted meets completely the superficial argument that it is ridiculous for the Federal Parliament tosanction an inquiry as to collisions between bay steamers, possibly tacing one another on a public holiday. It is for the Federal Parlia-

"ment, not. for us, to "judge of the necessity of Federal action" ; it is for that Parliament, not for us, to say what regulations are

_ wise to make. For us, the only question is the question as to the power of that Parliament.

But that question is in danger of being obscured by a dictum, an

_ obiter dictum, in which three Judges out of five concurred, in the case of Owners of s.s. Kalibia v. Wilson (2). These three Judges Tefused to follow the Supreme Court of the United States in treating

(1) (1887) 31 Fed. Rep. 763, at p. 765. (2) (1910) 11 C.L.R. 689.

Tue Kine v TURNER ; EX PARTE Marine Boarp or Hoparr. 'TASMANIA ».

Tue Kina v TURNER ; Ex PARTE Marine Boarp or Hoparr. TASMANIA v. THE Common- WEALTH.

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

Court held that the legislation as to manning and accommodati was invalid so far as it concerned intra-State ships. Counsel !

the Commonwealth does not impugn this decision, but distinguishes it as not being applicable to the use of the waters ; and it is clearly distinguishable. In that case of 1921, counsel for the Common- wealth argued that sec. 98 of the Constitution in some way gave _a general power over ships of all kinds in addition to the powers conferred over inter-State and foreign commerce ; and we refused to accept the argument as valid. The words of sec. 98 are " The _ power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping"; and they clearly show that the power to make laws with respect to trade and commerce, limited as it is to inter-State and foreign commerce, is not extended to "hla tate commerce, but it includes navigation and shipping in the subjects to which the legislation for inter-State and foreign "commerce may apply. In that case counsel for the States stated explicitly that a decision in his favour would leave untouched the a. with which we have in this case to deal. When questions _ arise as to the number of cubic feet proper for each man in the fore- "castle, or the number of deckhands or stewards to be employed, there is not any necessary connection between the rules to be prescribed for the internal arrangements of vessels engaged in inter-State and foreign commerce and the rules which ought to be prescribed for the internal arrangements of vessels engaged in

'small intra-State activities. But it is impossible to prescribe rules for the navigation of inter-State and foreign ships in any given body of water without the power to interfere with the freedom of action of all craft and obstacles in that same body of water. The words of the judgment must be read as limited to the particular kind of legislation which was before the Court - legislation for manning and accommodation. It was a joint judgment ; and if it be treated = covering the wider subject, it will be very difficult for any Judge

to acquiesce in a joint judgment instead of fully stating his own

_ It has further been contended for the States that the Federal Act 'hich creates the Court of Marine Inquiry offends against Chap. III.

of the Constitution in committing part of the judicial power of the

Commonwealth to an officer who has not a life tenure of his office.

It is admitted that Mr. Turner, the officer who has to conduct this

Tae Kine v TURNER ; EX PARTE Marine Boarp or Hosarr. 'TASMANIA v

inquiry under the Commonwealth Navigation Act, has not a lif tenure ; and it has been held, by the majority of this High Co that anyone who exercises the judicial power of the Commonw must, under sec. 72 of the Constitution, have a life tenure (Wat Workers' Federation of Australia v. J. W. Alexander Ltd. (1) ). brother Gavan Duffy and I dissented from this view; but we bound by the decision of the majority. Personally, I expr doubt (2) as to the exercise of jurisdiction by a special officer such special inquiries with a view to administration, and perl legislation, being an exercise of " the judicial power of the wealth"; and I cited in Alexander's Case a number of Ame' decisions in support of my doubt. According to these de Courts created by Congress for the territories are not Courts e the judicial power of the United States ; nor are Courts for pri Jand claims, nor the inter-State Commerce Commission. according to our own decisions, are Courts created for the Nor Territory or for Papua (R. v. Bernasconi (3) ), nor is the Court of Conciliation in making its awards a tribunal that requires a tenure for its President (Waterside Workers' Federation of Aus v. J. W. Alexander Ltd.). Now, asa result of a recent de of this Court as to Boards of Review for income tax assessm in British Imperial Oil Co. v. Federal Commissioner of Taxation my doubt has been converted into a positive opinion that such an officer as Mr. Turner, holding an inquiry into a collision of is not exercising the judicial power of the Commonwealth; and there is nothing in the Constitution to prevent him from pros the inquiry. This objection to the Federal Act fails also, in n opinion. ¥

I think that the rule for a prohibition should be refused, and q action dismissed. ;

T ought to add that I have not ignored the important but question raised by my brother Isaacs as to the effect of sec. 4% the Merchant Shipping Act 1894, in authorizing the Federal i It is unnecessary for me to come to a definite opinion as to the e

(1) (1918) 25 OLR. 434, (3) (1915) 19 CLR. 629. (2) (1918) 25 C.L.R., at pp. 475, 476. (4) (1926) 38 C.L.R. 153.

of the earlier British Act of 1894 when I find that the later Act - the Constitution Act of 1900 - is amply sufficient to justify the inquiry.

Powers J. The questions to be decided by the Court on the defendants' demurrer in this action have to be decided on the facts set out in the amended statement of claim admitted by the defendants, namely, (1) that on 25th December 1926 two steamships, named respectively the Cartela and the Togo, collided in waters of the River Derwent at the approach to Sullivan's Cove in the Port of Hobart, Tasmania; (2) that the steamships in question were British ships registered in Hobart; (3) that the ships in question were engaged for some time before and on the date of the collision in intra-State trade only ; (4) that the ships were " bay and river steamers " trading solely in the Port of Hobart; (5) that the ships at the time of the collision were outside the course ordinarily used by ships engaged in trade or commerce with other countries or

amongst the States; (6) that the vessels had traversed part of the said course immediately before the collision took place; (7) that no vessel engaged in trade or commerce with other countries or amongst the States was at the time of the said collision actually affected by the navigation of either of the said vessels; (8) after the happening of the said collision a preliminary inquiry was held and a report furnished to the Marine Board of Hobart pursuant to sec. 125 of the State Act, and the said Board decided that a further _ inquiry was necessary and requested the Government of Tasmania to constitute a Court of Inquiry for that purpose in accordance with the Act; (9) steps were taken to constitute such a Court, when the Commonwealth Government interposed and the State stayed proceedings pending some decision on the rights claimed by the Commonwealth; (10) the Commonwealth established a Commonwealth Court of Inquiry; (11) the said Commonwealth Court commenced to hold and to continue an inquiry into the said collision and proceeded to take evidence. The State of Tasmania and the Marine Board of Tasmania first _ applied to this Court for an order to prohibit the Commonwealth Court from continuing to hold the inquiry in question, and later on

_~ 'THE Kine v TURNER ; EX PARTE Marine Boarp ov Hoparr.

w 'Tue Kine ca 'TURNER ; Ex PARTE Marine Boarp

commenced an action for a declaration that the Common Marine Court has no authority to hold the inquiry in question ; for an injunction to restrain that Court from proceeding with ¢h hearing and from exercising any of the powers purporting to b conferred on the Commonwealth Marine Court by the Common- wealth Navigation Act.

The Commonwealth demurred to the plaintiffs' claim, claimi that, under the powers conferred on the Commonwealth of Aus by the Merchant Shipping Act of 1894, sec. 478, and by the Consti tion, secs. 51 (1.) and 98, it had power to pass sec. 364 of 1 Commonwealth Navigation Act, and to constitute the Court Marine Inquiry in question. It also claimed that the limitation o the exercise of its power by passing sec. 2 (1) (a), (b) and (c) did

the circumstances. Sec. 478 of the Merchant Shipping Act (Imperial), in my opi

registered in Australia wherever the British ships were and where they were trading. The Commonwealth Parliament, exerci: that grant of power and the powers granted by the Consti passed sec. 364 of the Commonwealth Navigation Act in simila words to those used in the Merchant Shipping Act autho inquiries into casualties to all British ships, and if no limitation been placed on the powers exercised by sec. 364 the particular questions now before the Court would not have arisen. Sec. 2 (lo the Commonwealth Navigation Act 1912 provides that " This shall not apply in relation to any Australian-trade ship, limited e trade ship, or river and bay ship, or her master or crew, unless #l ship (a) is engaged in trade or commerce with other countries o! among the States ; or (6) is on the high seas, or in waters which at used by ships engaged in trade or commerce with other countrie or among the States; or (c) is in the territorial waters of any Territory which is part of the Commonwealth." Under that se it is clear that if the ships in question were not in waters which r

used by ships engaged in inter-State or foreign trade, the Common- wealth by sec. 364 had not exercised the powers it had under sec. '478 of the Imperial Act to deal with the British ships in question, and therefore that it had not power to make such an inquiry as it had authorized the Commonwealth Court of Marine Inquiry to hold, or to authorize it to exercise the powers conferred on that Court. It was admitted that it could make any inquiries (without exercising compulsory powers) to ascertain whether it had jurisdiction to deal with the collision in question. The question whether the yessels were in waters which are used by ships engaged in inter-State or foreign trade depends on the interpretation placed by the Court on those words. It was claimed that the waters referred to included all the waters of a harbour or of a river - even those beyond the portion of a harbour or river af any time used by ships engaged in _ inter-State or foreign trade, including all small inlets in a harbour and all waters of a river.

The defendants contended that in this case the two ships on the day in question were in the waters of the Port of Hobart. The _ waters of the Port of Hobart are used by ships engaged in inter-State and foreign trade, and therefore they were in waters used by ships engaged in inter-State and foreign trade. My brother Isaacs in

his judgment gives the words "in the waters used" a more limited meaning - that is, they do not necessarily include all the waters in a harbour or river because the words are " in waters used."" I agree _ with his definition of the words "in the waters used." I also hold "that the words "in waters . . . used" in the section (not "in the waters of a harbour or river used" &c.) would not include more than the waters ordinarily or generally used by ships engaged in inter-State or foreign trade. For instance, waters in a river or

harbour above the parts used by vessels so engaged would, in my opinion, not be " waters used " within the meaning of sec. 2 of the Navigation Act. 1 agree with my brother Higgins that "the collision occurred at a point where normally foreign or inter-State

• Steamers would not run, entering or departing " from the port. As I hold that the bay and river steamers in question were not,
• at the material time, in waters used by ships engaged in inter-State
• or foreign trade, and that there was not a casualty to a British ship

Tue Kine v. TURNER ; Ex PaRTE Marine Board or Hoparr. 'TASMANIA %

in the waters in question, I necessarily hold that the Commonwea Parliament has not authorized the holding of the inquiry into collision in question, and therefore that the plaintifis are to a declaration that the Commonwealth Marine Court is not justi

in continuing to proceed with the inquiry. I have not, in the circum stances, to decide the other objections raised. I hold that whate powers the Commonwealth Parliament has by sec. 478 of the Merchant Shipping Act (Imperial) and by sec. 51 (1.) and see. s

of the Constitution to authorize such inquiries as it authorized in this case, they have not been exercised so as to affect the v in question because of the exemptions set out in sec. 2 (1) (a), and (c) of the Navigation Act.

Solicitor for the plaintiffs, F. Banks Smith, Crown Solicitor Tasmania. Solicitor for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth. 3 Solicitors for the interveners, J. V. Tillett, Crown Solicitor for~ New South Wales ; Frank G. Menzies, Crown Solicitor for Victoria. -