wei os Builde 30, Inthe Bivins: Re cunis 88 yw pam v is v. 3 "J a r k 1988)

wei os Builde 30, Inthe Bivins: Re cunis 88 yw pam v is v. 3 "J a r k 1988) - [1937] HCA 82 - HCA 1937 case summary — Zoe

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Dixon J. It does not appear from the facts stated by the parties in the special case that any steps have been taken by the Minister under sec. 329 of the Navigation Act 1912-1935 with reference to the wreck of the Kakariki, and we are informed by counsel that in fact no notice has been given by the Minister requiring the owner to remove it. The present proceedings are brought simply because of an apprehension on the part of the respective advisers of the Crown in right of the State and of the Commonwealth lest, if the port officer or harbour master proceeds as under sec. 13 of the Marine Act 1928 of Victoria, it may be found that none of the cost of removing the wreck can be recovered from the owners of the ship because under sec. 109 of the Constitution it is held to be invalid for inconsistency with sec. 329 of the Federal Navigation Act. The supposition that sec. 329 has the effect of annihilating this provision of the State Act or at least of invalidating it so far as otherwise it would apply to the wrecks of vessels engaged in inter-State or oversea trade or wrecks lying in waters used by such vessels implies a series of hypotheses. It means that sec. 329 is a valid law of the Commonwealth, that it applies to such wrecks and that as a matter of interpretation it applies to wrecks within bays or other tidal waters enclosed within headlands forming a comparatively narrow entrance. If all this be true, it still involves the further assumption that sec. 329 amounts to an exclusive authority for determining in the case of every wreck to which it applies whether or not it shall be removed at the cost of the owners. For reasons which I shall state, I think that only upon this further assumption could sec. 329 of the Federal Navigation Act produce an invalidity of sec. 13 of the Victorian Marine Act extensive enough to destroy any right which a port or harbour master might otherwise obtain under the latter provision to remove the wreck of the Kakariki and charge the owners with the cost of doing so. I am clearly of opinion that sec. 329 of the Navigation Act means to create no such exclusive power or authority and that it contains nothing which, if the Common- wealth Minister continues to abstain from exerting the authority

[97]

"expresses an intention to cover the field." Any analogy between legislation with its infinite complexities and varieties and the picture of a two-dimensional field seems to me to be of little assistance. Those who are inclined to assert a vague and general paramountcy of Commonwealth or Imperial legislation as a result of sec. 109 of the Constitution or the Colonial Laws Validity Act respectively, emphasize that "inconsistency" or "repugnancy " between the legislation of two legislatures each of which has jurisdiction in the same territory is not the same as " inconsistency " or " repugnancy " between two enactments of a legislature which has exclusive juris- diction over a territory. The distinction is important, but it is fallacious to assume that it favours an extended meaning of incon- sistency or repugnancy where the legislative authority in relation to a territory is divided between legislatures. On the contrary, as is shown by decisions on the Canadian Constitution, provisions like sec. 109 do no more than declare a rule of last resort which would be applied irrespective of express provision. At times it is not difficult to establish inconsistency between two enactments proceeding from the same legislature. In such cases, the only question is: What is the intention of the one legislature ? And the inference of "an intention " to replace one enactment with another may be drawn even in cases of mere overlapping or mere awkward working of two enactments. But it is different in the case of two legislatures. There, more direct proof of conflict must be established before the courts should conclude that the legislation of one authority is to be treated as void. And this view is reinforced by remembering that, where invalidity or repugnancy causes avoidance of legislation, it is only to the precise extent of such invalidity or repugnancy. In the earlier history of this court, the question of sec. 109 arose mainly in relation to supposed conflicts between the awards of the Federal industrial arbitration tribunals on the one hand and laws or awards of a State on the other. For a long time it seemed that a principle to be adopted was whether simultaneous obedience to both sets of commands, the Commonwealth and the State. was possible. If it was not possible, then inconsistency arose. If it was possible, there was no case of inconsistency under sec. 109. But this view, though long accepted, was rejected as a decisive test, and

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lative power of the State of Victoria to pass a law providing for the removal of a wreck lying at a place within its territorial limits. Sec. 13 of the Marine Act 1928 of Victoria authorized the State's port officer or harbour master to proceed for the removal of any ship which is sunk, stranded or run on shore in any port in Victoria. This section, upon its terms, applies to the wrecked ship to which the present case relates. A question arises whether sec. 13 is inconsistent with sec. 329 of the Navigation Act 1912-1935 of the Commonwealth, which authorizes the Minister to take steps for the removal of any ship which is wrecked, stranded, sunk or abandoned on or near the coast of Australia. This question assumes that sec. 329 is of full force and effect as a valid exercise of the legislative power of the Commonwealth and that the definition of the locality to which the section is expressed to apply covers the place where the wrecked ship is lying. Both assumptions may be made for the purposes of this case, for the only ground upon which it is contended that sec. 13 is invalid is that it is inconsistent with sec. 329. If the two sections are inconsistent, sec. 13 is rendered invalid by sec. 109 of the Constitution, which provides that if a State law is inconsistent with a Commonwealth law the latter will prevail and the former to the extent of the inconsistency be invalid. Sec. 329 provides that if any ship is wrecked at the place mentioned in the section " the Minister shall have in regard thereto the following powers." These include the power to require the owner of the wreck, by notice in writing, to remove it within a time specified in the notice, or give security for such removal to his satisfaction, and the power to remove or destroy the wreck in the event of the owner not complying with such notice. The terms of this section do not imply any negation or destruction of the powers conferred upon the State port authority or harbour master by sec. 13 of the Marine Act, at least until the Minister has intervened by giving notice to the owner requiring him to remove it. No support can be found in sec. 329 for the assump- tion that Parliament intended that the only executive action which could be taken for the removal of a wreck to which the section applied was Commonwealth executive action. The State port officer or harbour master in no way challenges the supremacy of the Federal section by proceeding to remove a wreck to which sec. 329

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