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High Court of Australia |
KIRMANI v. CAPTAIN COOK CRUISES PTY. LTD. (No. 1) [1985] HCA 8; (1985) 159 CLR 351
Constitutional Law (NSW) - Constitutional Law (Cth) - Shipping and Navigation
High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4), Brennan(5), Deane(6) and
Dawson(7) JJ.
CATCHWORDS
Constitutional Law (N.S.W.) - Imperial law - Applicability in New South Wales - Imperial Act extending to New South Wales providing limitation of liability for ship-owners - Legislature of British possession empowered to repeal provisions of Imperial Act - Confirmation of Queen-in-Council and proclamation of Queen's approval required - Statute of Westminster - Dominion Parliaments empowered to repeal Imperial Acts in so far as part of "law of Dominion" - Whether independent grant of legislative power to Commonwealth Parliament - Denial of power to Commonwealth to legislate on matter within authority of States not being within authority of Commonwealth - Authority of State to repeal Imperial Act - Commonwealth Act repealing Imperial Act in so far as part of "law of Commonwealth" - Whether repeal in so far as part of law of State - Validity - Merchant Shipping Act 1894 (Imp.), ss. 503, 735 - Statute of Westminster 1931 (Imp.), ss. 2,9 - Navigation Amendment Act 1979 (Cth), ss. 103, 104(3).Constitutional Law (Cth) - Powers of Commonwealth Parliament - External affairs - Imperial Act extending to States providing limitation of liability for ship-owners - Convention relating to limitation of liability of owners of sea-going ships - Commonwealth Act repealing Imperial Act in so far as law of the Commonwealth - Validity - Whether Act implementing Convention - Merchant Shipping Act 1894 (Imp.), ss. 503(1), 735 - The Constitution (63 & 64 Vict. c. 12), s. 51(XXIX) - Navigation Act 1912 (Cth), s. 333 - Statute of Westminster 1931 (Imp.), ss. 2, 9 - Navigation Amendment Act 1979 (Cth), ss. 103, 104.
Shipping and Navigation - Passenger injured on vessel in internal waters of New South Wales - Imperial Act extending to New South Wales providing limitation of liability for ship-owners - Commonwealth Act repealing Imperial Act in so far as part of law of Commonwealth - Whether repealed in so far as part of law of State - Merchant Shipping Act 1894 (Imp.), ss. 503(1), 735 - Navigation Act 1912 (Cth), s. 333 - Statute of Westminster 1931 (Imp.), ss. 2, 9 - Navigation Amendment Act 1979 (Cth), ss. 103, 104.
HEARING
1984, April 10, 11;DECISION
GIBBS C.J. On 9 August 1981 the plaintiff, Mrs Kirmani, while being carried on a cruise on Sydney Harbour in "Captain Cook II", a vessel owned by the defendant company, sustained personal injuries which she claims were caused by the negligence of the defendant. She commenced an action for damages against the defendant in the District Court of New South Wales. The defendant, by par.4 of its defence, claimed to be entitled to limit its liability under s.503 of the Merchant Shipping Act 1894 (Imp.). The plaintiff then moved in the District Court to strike out par.4 of the defence on the ground that Pt.VIII of the Merchant Shipping Act, in which s.503 appears, was repealed on 31 January 1981, when s.104(3) of the Navigation Amendment Act 1979 (Cth) ("the Amendment Act") came into force. In reply, the defendant gave notice that it would contend that s.104 of the Amendment Act, on its true construction, does not repeal s.503 of the Merchant Shipping Act in so far as that provision is part of the law of New South Wales and that in any case the Commonwealth had no power to repeal s.503 in its application to the facts of the present case. The defendant company, which is incorporated in New South Wales, alleged that "Captain Cook II" was used only to carry passengers on cruises wholly within the waters of Sydney Harbour and was not a sea-going vessel within the meaning of the International Convention relating to the limitation of the liability of owners of sea-going ships signed at Brussels on 10 October 1957 ("the Convention"). A copy of the Convention is set forth in Sch.6 to the Navigation Act 1912 (Cth), as amended. At that stage of the proceedings this Court ordered that so much of the cause as involves the validity of the repeal of s.503 of the Merchant Shipping Act by s.104(3) of the Amendment Act be removed into this Court. The order for removal seems to be phrased rather too narrowly, since the case concerns the intended effect as well as the validity of s.104 of the Amendment Act.2. At the hearing before us the Commonwealth intervened to support the validity of s.104. The defendant took no part in the argument, but the States of New South Wales, Queensland and Western Australia submitted that s.104 is invalid and the two first-named States further submitted that the section on its proper construction does not assist the plaintiff.
3. The Amendment Act made extensive amendments to the Navigation Act. By
s.65 of the Amendment Act a new Pt.VIII, comprising ss.330-338,
was inserted
in the Navigation Act. By s.332(3) it is provided that the provisions of Div.1
of that Part (which deals with limitation
of liability) do not apply in
relation to an intrastate vessel to the extent that a law of a State or of the
Northern Territory makes
provision giving effect to
the Convention in relation
to that vessel. By s.333 it is provided that the provisions of the
Convention,
other than art.1(1)(c),
have the force of law as part of the law
of the Commonwealth. Section 334 provides that certain ships, not
being
sea-going ships,
are to be treated for the purposes of the division and of the
applied provisions of the Convention as though
they were sea-going
ships. The
scope of the section has been enlarged by amendment in 1980 and now requires
every ship that is not
a ship referred to
in pars.(a), (b), (c) or (d) of
s.2(1) of the Navigation Act and is not a sea-going ship to be so treated.
Those
paragraphs refer to:
"(a) a trading ship proceeding on a voyage other
than an overseas voyage or an inter-State
voyage;
voyage other than an overseas voyage;
(c) an inland waterways vessel; or
(d) a pleasure craft".Subject to that extension, the provisions of Div.1 of Pt.VIII and those of the Convention relate to the limitation of liability by the owners of sea-going ships. Section 103 of the Amendment Act provides as follows:
"In this Part, 'Merchant Shipping Act' meansBy s.104(2) approval is given to the ratification by Australia of the Convention subject to a reservation excluding the application of art.1(1)(c). Section 104(3) then provides:
the Imperial Act known as the Merchant Shipping
Act, 1894, as amended, or otherwise affected in its
operation, by the provisions of any other Imperial
Act or of any Act, in so far as that Act as so
amended, or otherwise affected in its operation, is
part of the law of the Commonwealth."
"Part VIII of the Merchant Shipping Act is
repealed."
4. The first question that arises is whether s.104(3) read together with the
definition in s.103 repeals the Merchant Shipping Act
in so far as it is part
of the law of New South Wales. That depends on the meaning of the words "the
law of the Commonwealth" in
s.103, since it is only in so far as the Merchant
Shipping Act is "part of the law of the Commonwealth" that s.104 applies to
it.
The expression
repealed."word "Commonwealth", as used in the Constitution, is itself ambiguous. Various senses in which the word is used in the Constitution have been discussed by commentators from the early days of Federation until the present: see Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), pp.366-368; Harrison Moore, Constitution of the Commonwealth, 2nd ed. (1910), pp.71-74; Professor Lumb, "'The Commonwealth of Australia' - Constitutional Implications" (1979) 10 F.L.R. 287; and Lane, The Australian Federal System, 2nd ed. (1979), pp.958-961. Sometimes (as in the introductory words to ss.51 and 52 of the Constitution) the word refers to Australia as a community united as a nation or a political entity. Sometimes (as in ss.61, 71, 99, 105A, 109, 114, 116) it refers to the central government or its legislative, executive or judicial organs, as contrasted with the States and their organs of government. Sometimes the word is used in a geographical sense: e.g. in ss.51(xx), 51(xxv), 95, 118. It will not always be clear which meaning the word bears in a particular section. Thus, in Victoria v. The Commonwealth and Hayden [1975] HCA 52; (1975) 134 CLR 338 there was a division of opinion on this Court as to whether "the purposes of the Commonwealth" in s.81 were limited to the purposes for which the Commonwealth was empowered to make laws.
5. It was submitted on behalf of the Commonwealth in the present case that in the phrase "the law of the Commonwealth" in s.103 of the Amendment Act the word "Commonwealth" is used in the first of those possible senses which I have mentioned, and refers to a law of the whole Australian community, whether the Parliament of the Commonwealth could have enacted it or not. On the other hand, the States of New South Wales and Queensland contended that the effect of s.103 was that s.104 was intended to repeal Pt.VIII of the Merchant Shipping Act only in so far as it dealt with matters within the legislative competence of the Commonwealth and not in so far as it was part of the law of the State. This argument was supported by the fact that the provisions of Div.1 of Pt.VIII of the Navigation Act, inserted by s.65 of the Amendment Act, apply only in relation to sea-going ships and certain other ships, which, by s.334, are to be treated as sea-going ships. The fact that the Amendment Act has replaced the provisions of the Merchant Shipping Act, which applied to ships generally, by provisions which are limited to ships of a particular class suggests, it was submitted, that it could not have been intended that s.104 would effect a complete repeal of Pt.VIII of the Merchant Shipping Act in its application to Australia. The effect of a complete repeal would be to leave a void in some areas previously covered by that Part. Further, the fact that s.104 of the Amendment Act deals both with the ratification of the Convention and the repeal of Pt.VIII of the Merchant Shipping Act shows a recognition that the two things are related. Therefore, it was submitted, Pt.VIII was not intended to be repealed in so far as it dealt with ships other than sea-going ships and ships treated as such by s.334, or in other words in so far as it dealt with matters beyond the legislative competence of the Commonwealth.
6. These arguments, although not negligible, find little support in the words of the Amendment Act themselves. The expression "the law of the Commonwealth" in s.103 is aptly used to refer to the law of the Australian nation, or to the law in force within Australian territory, but it would be straining language to give it the meaning of the law which deals with matters within the scope of the Commonwealth's legislative power. It can hardly be doubted that the words of s.103 echo those of s.2(2) of the Statute of Westminster 1931 (Imp.) which confer on the Parliament of a Dominion power to repeal or amend any Act of the United Kingdom "in so far as the same is part of the law of the Dominion". It appears that the purpose of ss.103 and 104 of the Amendment Act was to exercise to the full whatever power was available under s.2(2) of the Statute of Westminster to repeal the Merchant Shipping Act. It therefore becomes necessary to consider the effect of s.2(2) of the Statute of Westminster in relation both to the interpretation and the validity of ss.103 and 104.
7. The Statute of Westminster is described in its title as "An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930". Its principal purpose was to give to the Dominions (Canada, Australia, New Zealand, the Union of South Africa, the Irish Free State and Newfoundland) that autonomy and equality of status with each other and with the United Kingdom which had been recognized by the Balfour Declaration of 1926. By a process of gradual development, the status of the Dominions had changed; as a matter of constitutional practice they had come to be regarded, not as colonies, but as sovereign communities.
8. In the first place it was necessary to ensure that the Parliaments of the Dominions were no longer in a state of subordination to the Parliament of the United Kingdom. It was inconsistent with Dominion autonomy that laws passed by the Dominion Parliaments could be rendered invalid if the Parliament of the United Kingdom exercised its power to pass laws extending to the Dominions. It was not, however, desired to extinguish entirely that power of the Parliament of the United Kingdom for it was recognized that in some circumstances it might be necessary for recourse to be had to the power in the interests of the Dominions themselves. Indeed, since that time it has been found necessary, in both Canada and Australia, to seek United Kingdom legislation to bring about changes in the laws that could not otherwise have been effected: see China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172, at pp 211-212, per Stephen J. Indeed, it may still prove necessary to request the Parliament of the United Kingdom to legislate for Australia: see also Bistricic v. Rokov [1976] HCA 54; (1976) 135 CLR 552, at p 561, per Jacobs J. What was therefore decided, and was enacted in s.4 of the Statute, was that thereafter no Act of the Parliament of the United Kingdom should extend to a Dominion "as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof". It is unnecessary to consider whether, as Viscount Sankey L.C. thought in British Coal Corporation v. The King (1935) AC 500, at p 520, the power of the Parliament of the United Kingdom to pass on its own initiative any legislation that it thought fit extending to the Dominions remained in theory unimpaired. That proposition has been questioned (see Manuel v. Attorney-General [1982] EWCA Civ 4; (1983) Ch 77, at pp 104-105) but if it is correct it is right to say, as Viscount Sankey L.C. did, at p.520, "But that is theory and has no relation to realities".
9. The second thing that was necessary to be done to give effect to the autonomy of the Dominions was to remove the fetters on their legislative power which had resulted, or which it was thought had resulted, from their former colonial status. The powers of the Dominion legislatures were subject to the limitations imposed by the Colonial Laws Validity Act 1865 (U.K.), s.2. of which rendered invalid any colonial law which was repugnant to the provisions of any Act of the Parliament of the United Kingdom which extended to the colony, i.e. which was made applicable thereto by express words or necessary intendment. Those powers were also thought to be limited by the doctrine (which I have criticized in Pearce v. Florenca [1976] HCA 26; [1976] HCA 26; (1976) 135 CLR 507, at pp 514-518, and Robinson v. Western Australian Museum (1977) 138 CLR 283, at pp 303-304) which regarded a colonial legislature as unable to enact laws having extraterritorial operation. These fetters or supposed fetters on the legislative powers of the Dominion Parliaments were removed by ss.2 and 3 of the Statute.
10. We are concerned with s.2 which is in the following terms:
"(1) The Colonial Laws Validity Act, 1865,
shall not apply to any law made after the
commencement of this Act by the Parliament of a
Dominion.
(2) No law and no provision of any law made
after the commencement of this Act by the
Parliament of a Dominion shall be void or
inoperative on the ground that it is repugnant to
the law of England, or to the provisions of any
existing or future Act of Parliament of the United
Kingdom, or to any order, rule or regulation made
under any such Act, and the powers of the
Parliament of a Dominion shall include the power to
repeal or amend any such Act, order, rule or
regulation in so far as the same is part of the law
of the Dominion."
11. There has been a learned controversy as to the effect of the second part
of s.2(2), which provides that the powers of the Parliament
of a Dominion
shall include the power to repeal or amend any Act of the Parliament of the
United Kingdom in so far as the same is
part of the law of the Dominion. One
view is that that part of s.2(2) is, to use the words of Sir Owen Dixon ("The
Statute of Westminster
1931" (1936) 10 A.L.J.Sup. 96, at p.101) "no more than
explanatory or epexegetical" of the statement in the first part of the
subsection
that no future law of the Parliament of a Dominion shall be void or
inoperative on the ground that it is repugnant to the law of
England. On that
view, the second part of s.2(2) does not enlarge the ambit of the powers of a
Dominion Parliament, although it
removes a restriction on their exercise; it
strengthens the powers, but within their existing limits. The other view is
that the
second part of s.2(2) is an independent grant of power and that it
gives to Dominion Parliaments the power to amend or repeal any
Act whatever of
the United Kingdom Parliament which extends to or applies in the Dominion.
The decision of the Privy Council in Moore
v. The Attorney-General for the
Irish Free State (1935) AC 484 appears to have proceeded on the latter view,
although it is not clearly
expressed in the judgment. It may have been
important for Ireland and for South Africa correctly to resolve this
controversy, but
as Dixon J. pointed out (loc.cit., at p.106) the question
does not seem to be important for Australia. There can be no doubt that
s.2(2)
does not confer any power to repeal or alter the Constitution or the
Constitution Act otherwise than in accordance with the law existing before
the commencement of the Statute; s.8 of the Statute expressly so provides.
If
s.2(2) is a new source of legislative power its effect is controlled by s.9(1)
which provides as follows:
"Nothing in this Act shall be deemed to
authorize the Parliament of the Commonwealth of
Australia to make laws on any matter within the
authority of the States of Australia, not being a
matter within the authority of the Parliament or
Government of the Commonwealth of Australia."
12. The word "authority" in this section must mean power or legislative
competence. Dixon C.J. seems to have regarded the word
as having that meaning
in his reference to the provisions of s.9(1) in Reg. v. Foster; Ex parte
Eastern and Australian Steamship
Co. Ltd. [1959] HCA 10; (1959) 103 CLR 256, at p 267. The
provisions of s.9(1) contain a clear indication that the Statute of
Westminster
was not
intended
to enlarge the legislative powers of the
Commonwealth at the expense of the States. The introductory words of s.9(1)
show
that that
subsection is intended to prevail over s.2(2). The effect of
the provisions in conjunction is that if, apart from
s.2(2),
a matter
is
within Commonwealth legislative power (whether or not it is also within State
legislative power), the Commonwealth
Parliament
may make laws on the matter
and such laws will not be bad for repugnancy to the legislation of the United
Kingdom or for
extraterritoriality.
If a matter is within the legislative
power of the States, and not within the legislative power of the Commonwealth,
s.2(2) does
not confer any power on the Commonwealth. If there were matters
which are not within either Commonwealth or State authority,
s.9(1)
would not
apply, and it would then be a real question (although one of limited
importance) whether s.2(2) is an independent
grant
of power, or whether it
does no more than strengthen existing powers. However I very much doubt
whether that third position
exists,
i.e. whether there are matters which fall
outside the authority of both the Commonwealth and the States. I rather
think,
as Barton
J. said in Smith v. Oldham [1912] HCA 61; (1912) 15 CLR 355, at p 361, that
"the Constitution in the distribution of powers between the Commonwealth and
States embraces the whole range of legislative authority within the
territorial
limits of Australia"; see also per Isaacs J., at p.365. In my
opinion the provisions of s.7 (which deals with Canada) and ss.8 and 9 of the
Statute sufficiently reveal that the intention of the framers of the Statute
was to strengthen the existing powers of the
Dominion Parliaments, but was not
to affect in any way the relationship between the component entities of those
Dominions which were
federations - in other words, not to give to the
Parliaments of the Commonwealth of Australia and of Canada increased powers at
the
expense of the States and the Provinces. A similar view appears to have
been expressed by Menzies J. and Windeyer J. in Reg. v.
Foster; Ex parte
Eastern and Australian Steamship Co. Ltd., at pp 300-301 and 306.
13. It was submitted that unless s.2(2) granted a new power, the Parliament of the Commonwealth would have had no power to pass the Statute of Westminster Adoption Act 1942 (Cth), which, by s.3, provided that ss.2, 3, 4, 5 and 6 of the Statute of Westminster are adopted as from 3 September 1939. It was provided by s.10(1) of the Statute of Westminster that none of ss.2, 3, 4, 5 and 6 of the Statute should extend to the Dominions to which that section applied (which included Australia) as part of the law of that Dominion unless that section were adopted by the Parliament of the Dominion and that any Act of such Parliament adopting any of those sections might provide that the adoption should have effect either from the commencement of the Statute of Westminster or from such later date as was specified in the adopting Act. Section 10 itself conferred on the Dominions to which it applied all the power necessary to adopt ss.2, 3, 4, 5 and 6 of the Statute of Westminster.
14. The critical question in the present case is whether the relevant provisions of Pt.VIII of the Merchant Shipping Act dealt with a matter within the authority of the States and, if so, whether it was nevertheless a matter within the authority of the Commonwealth, within the meaning of s.9(1) of the Statute of Westminster. Part VIII deals with a number of matters but we are concerned only with s.503 which provides for the limitation of liability in certain cases of (inter alia) injury caused to a person being carried on a ship whether British or foreign. It extends to the whole of Her Majesty's Dominions: s.509. It accordingly applies to ships engaged in interstate or international trade and to ships which are navigated solely in the internal waters of a State. The limit of the liability of the owner of a ship for injuries sustained in the internal waters of a State is a matter within the competence of the legislature of the State. Of course laws on such a matter would be invalid if repugnant to an Act of the United Kingdom Parliament which extended to the State, since the provisions of the Statute of Westminster were not applied to the Australian States. Such laws would be invalid if repugnant to s.503 of the Merchant Shipping Act unless passed in accordance with s.735 of that Act which enables the legislature of any British possession, by any Act confirmed by Her Majesty in Council, to repeal, wholly or in part, any provisions of that Act (with an immaterial exception) in relation to ships registered in that possession, and which provides further that any such Act shall not take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed by the Act for the purpose. The reference to the legislature of a British possession does not now include reference to the Parliament of a Dominion (s.5 of the Statute of Westminster) but it does include the legislature of a State. It was submitted on behalf of the Commonwealth that the requirements of confirmation and approval imposed by s.735 mean that it is not within the authority of a State legislature to make a law to repeal s.503. It was further submitted that ships can no longer be registered in a State, since the Shipping Registration Act 1981 (Cth) (which took effect on 25 March 1981) requires all Australian owned ships to be registered under that Act (see s.12) and that s.735 therefore does not give any power to a State legislature.
15. The argument that the repeal of s.503 is not a matter within the authority of the States because of the procedural requirements of s.735 of the Merchant Shipping Act can be answered by saying that the requirement that there should be confirmation and approval before the law takes effect does not mean that the law deals with a matter outside the competence of the State legislature. On the contrary, it rather contemplates that the law is within the authority of the State. The argument that the matter is not within the authority of the State because s.735 confines the State legislative power to ships registered in the possession, and because once the Shipping Registration Act took effect no ships would answer that description (assuming that to be the case), can be answered by pointing out that at the times when the Amendment Act was passed and the plaintiff sustained her injury the Shipping Registration Act was not in force. For that reason it is unnecessary to consider either the validity or the effect of that Act. However there is a more fundamental answer to these arguments. It is that a matter is not outside the authority of the State simply because if, in the exercise of that authority, the legislature of the State passes a law which is repugnant to an Act of the United Kingdom which extends to the State, the result will be that the State law is, by reason of s.2 of the Colonial Laws Validity Act, void to the extent of that repugnancy. The provisions of s.2 of the Colonial Laws Validity Act do not narrow the ambit of the authority of a colonial legislature, although they may render void certain enactments made in the exercise of that authority. In any case, in my opinion, the scheme of the Statute of Westminster indicates that s.9(1) is intended to refer to the ambits of the respective powers of the Commonwealth and the States, as existing at the time when the Statute was passed, and is not directed to the question whether a law within the ambit of those powers is or is not repugnant to a law of the United Kingdom.
16. The question then arises whether the repeal of s.503 of the Merchant
Shipping Act, in its application to ships which are on
the internal waters of
a State at the time when an injury is sustained, and which are not otherwise
the subject of activities which
would render applicable one or other of the
powers of the Commonwealth Parliament, is a matter within the authority of the
Commonwealth
within s.9(1). On behalf of the Commonwealth it was submitted
that the matter is one within the power conferred by s.51(xxix) of the
Constitution (the external affairs power), for two reasons. First, it was said
that the provisions of s.104(3) of the Amendment Act were reasonably
necessary
to give effect to the Convention, the ratification of which, as I have said,
is approved by the Amendment Act. However
the Convention, as its name
implies, deals with the limitation of the liability of owners of sea-going
ships. No authority
is needed
to support the statement that a ship which is
used entirely within the limits of internal waters, and never goes to sea,
is
not a
sea-going ship. None of the substantive provisions of the Convention
deals with the limitation of the liability of the
owner of
any ship other than
a sea-going ship. Article 8 of the Convention provides:
"Each Contracting State reserves the right toThat article means that a contracting party is not prevented from treating other ships in the same manner as sea-going ships but it does not require a contracting party to do so. It cannot be said that the Amendment Act, in so far as its provisions relate to ships which are not sea-going ships, conforms to the treaty or carries its provisions into effect, to use the words of Mason J. in The Commonwealth v. Tasmania [1983] HCA 21; (1983) 57 ALJR 450, at p 489. To legislate with respect to matters with which a treaty does not deal is not an implementation of the treaty, notwithstanding that the treaty allows a discretion to legislate in that way. There is nothing to suggest that the limitation of the liability of owners of ships that are not sea-going ships is, or even properly could be, a matter of international concern. It is unnecessary to enter upon the controversy as to the scope of the external affairs power, since on no view expressed in this Court, could the argument which I have been considering be accepted.
decide what other classes of ship shall be treated
in the same manner as sea-going ships for the
purposes of this Convention."
17. There remains the question whether an Act of the Commonwealth Parliament
which repeals an Act of the Parliament of the United
Kingdom in so far as it
is part of the law in force in Australia is, for that reason alone, a matter
with respect to external affairs.
The answer is, in my respectful opinion,
clearly in the negative. In Madzimbamuto v. Lardner-Burke [1968] UKPC 2; (1969) 1 AC
645,
Lord Reid said,
at p 722, that "it has never been doubted that, when a colony
is acquired or annexed, following
on conquest
or settlement, the Sovereignty
of the United Kingdom Parliament extends to that colony, and its powers over
that colony
are the same
as its powers in the United
Kingdom". There were
formerly conventional, and there are now legal, restraints on the exercise
of
that
sovereignty, but in the exercise
of the power which the sovereignty
conferred laws could be and were made which applied to
and extended
to the
Australian States as
part of the law of those States. As the learned authors
of Halsbury, 4th ed., vol.6, par.1200,
have
said:
"There is an important distinction between, on theThis distinction was clearly recognized in the Statute of Westminster: see the third preamble and ss.2, 4 and 10. We are now concerned, as the Statute of Westminster was concerned, with laws of the latter kind - laws that extended to a Dominion as part of the law of that Dominion. Obviously it was not intended by the Statute of Westminster to impair the power of the United Kingdom Parliament to make a law which would extend to a Dominion as part of the law of the United Kingdom (in the sense indicated in the passage from Halsbury), or to enable a Dominion Parliament to repeal or amend an Act of the United Kingdom Parliament which was not part of the law of the Dominion. For example, the Commonwealth Parliament could not repeal the Merchant Shipping Act in so far as it was part of the law of the United Kingdom. The provisions of Pt.VIII of the Merchant Shipping Act extended to the Australian States as part of the law of those States. I would repeat what I said in China Ocean Shipping Co. v. South Australia, at p 194:
one hand, United Kingdom enactments which 'apply
to' or 'extend to' a dependent or other territory
as part of the law only of the United Kingdom (in
that the operation of the law in the United Kingdom
is predicated on some event, circumstance, person
or thing identified by relation to that dependent
or other territory), and, on the other hand,
enactments which 'apply to' or 'extend to' a
dependent or other territory as part of the law of
that territory (rather than, or as well as, the law
of the United Kingdom)."
"When Pt VIII of the Act of 1894, upon itsThat statement expresses what I believe to be elementary and fundamental law. I find it impossible to say that an Act which forms part of the whole body of the law of New South Wales is something external to Australia.
enactment, became part of the law of South
Australia and of the other Australian colonies, the
provisions of that Part did not occupy a separate
and exceptional position. They became part of the
whole body of the law by which the colony was
governed. They were just as much a part of the law
of the colony as the principles of common law and
equity, the statute law of England enacted before
the colony was settled, and the enactments of the
colonial legislature."
18. The fact that the source of the Act was external to Australia does not, in my opinion, alter the position. It is true that relations between Australia and the United Kingdom may properly be described as external affairs. However, in repealing an Act which is part of the law of an Australian State the Commonwealth Parliament is not legislating with respect to its relations with the United Kingdom. It is legislating with respect to the law of an Australian State. The future exercise by the United Kingdom Parliament of its powers in relation to Australia might, I would agree, be described as an external affair. But s.104(3) of the Amendment Act does not deal with the relations between Australia and the United Kingdom. It simply repeals part of an Act of the United Kingdom which had, in accordance with constitutional law and practice, become a part of the law of New South Wales and the other Australian States. Although for some purposes (e.g., in relation to sea-going ships) s.104(3) may be a law with respect to external affairs, it is not such a law in its operation which is material in the present case.
19. There is no analogy between an Act of the Commonwealth Parliament which repeals an Act of the United Kingdom Parliament which is in force as part of the law of a State and an Act of the Commonwealth Parliament which, e.g., forbids an Australian citizen to comply in Australia with the law of another country which purports to extend to Australia but which could operate in Australia, if at all, only as a law of that foreign country. An Act which denies recognition to a foreign law which purports to affect things done in Australia, but which is not part of the law of Australia, is a law with respect to external affairs. An Act which changes the law in force in Australia is not. The great developments that have occurred in the relations between England and Australia have been brought about by constitutional and legal means. We have had no revolution. Nothing that has occurred has eradicated from our laws English statutes which have become embedded in them (Southern Centre of Theosophy Inc. v. South Australia [1979] HCA 59; (1979) 145 CLR 246) or has given an alien character to those English statutes which remain as part of our laws.
20. The distinction which I have discussed between Acts of the United Kingdom Parliament which extend to Australia as part of the law of the United Kingdom (and form no part of our law) and those which extend as part of the law of Australia explains the use the expression "part of the law of that Dominion" in s.2(2) of the Statute of Westminster, and the use of the words "law of the Commonwealth" in s.103 of the Amendment Act. The words in the latter section do not import any reference to Commonwealth organs of government or Commonwealth legislative powers. The intention of s.104 is to repeal Pt.VIII of the Merchant Shipping Act in so far as it operates as part of the law within Australia regarded as a polity or as a geographical area (it does not matter which) and therefore in so far as it forms part of the law of New South Wales. For the reasons I have given that intention cannot be fully realised.
21. For these reasons, in my opinion, s.104 of the Amendment Act is invalid in so far as it attempts to repeal the provisions of s.503 of the Merchant Shipping Act in their operation, as part of the law of New South Wales, to an injury sustained on a ship (not being a sea-going ship) within the internal waters of that State.
22. It should not be thought that this conclusion means that there is no power in the New South Wales Parliament to repeal or amend Pt.VIII of the Merchant Shipping Act. The Parliament of New South Wales could have done so with the confirmation and approval of Her Majesty in Council. The State of Western Australia has already received the approval of Her Majesty in Council to a statute which has repealed Pt.VIII of the Merchant Shipping Act in so far as it is part of the law of Western Australia: see Western Australian Marine Act 1982, s.100 and proclamation thereunder made on 21 June 1983. Moreover, it would appear (although we have not heard argument on the point) that the Commonwealth Parliament could, at the request of the State of New South Wales, exercise the power which could have been exercised in 1901 by the United Kingdom Parliament to repeal Pt.VIII of the Merchant Shipping Act in so far as it is part of the law of New South Wales: see s.51(xxxviii) of the Constitution. But New South Wales has not requested or consented to the exercise of that power.
23. I would remit the matter to the District Court with a direction that the application to strike out par.4 of the defence should be refused.
MASON J. There has been removed into this Court so much of the cause pending in the District Court of New South Wales as involves the validity of the repeal of Pt VIII of the Merchant Shipping Act 1894 (Imp.) by s.104(3) of the Navigation Amendment Act 1979 (Cth) ("the Act"). An issue which arises in the cause is whether the repeal affects the provisions of Pt VIII in their application to a ship presumably registered in New South Wales engaged in a pleasure cruise wholly within the waters of that State, namely Sydney Harbour.
2. The effect of the repeal of Pt VIII of the Merchant Shipping Act brought about by s.104(3) hinges partly on the definition of "Merchant Shipping Act" in s.103 of the Act which, when read with s.104(3), confines the repeal to the Imperial Act "in so far as that Act as so amended, or otherwise affected in its operation, is part of the law of the Commonwealth". There is a question as to what is meant by the words "is part of the law of the Commonwealth". The answer to this question must be deferred. It is necessary, first, to establish the effect of the Statute of Westminster 1931 (Imp.) ("the Statute") which was adopted by the Statute of Westminster Adoption Act 1942 (Cth), for the repeal of Pt VIII of the Merchant Shipping Act is based upon the provisions of the Statute, the language of s.103 of the Act being a reflection of that of s.2(2) of the Statute.
3. The principal object of the Statute, confirmed by its long title and its
recitals, was to give effect to the relationship between
the United Kingdom
and the self-governing Dominions expressed in the Balfour Declaration at the
Imperial Conference of 1926 and to
remove legal restraints which inhibited the
powers of the Dominion Parliaments and were inconsistent with the existence of
the relationship
described in the Declaration. The Declaration described the
United Kingdom and the self-governing Dominions in these terms:
"They are autonomous Communities within the BritishThe chief legal restraints to which the Statute was directed were the Colonial Laws Validity Act 1865 (Imp.) and the legal supremacy of the United Kingdom Parliament. Although the provisions which the Statute made with respect to these matters were sufficient to achieve legal autonomy for other Dominions, they fell short of achieving the same measure of legal autonomy in the case of Australia. This was because s.2 of the Statute did not apply to State legislation or to State legislatures and there was no counterpart in the case of Australia to s.7(2) which extended the provisions of s.2 to Provincial legislation and Provincial legislatures in the case of Canada.
Empire, equal in status, in no way subordinate one
to another in any aspect of their domestic or
external affairs, though united by a common
allegiance to the Crown, and freely associated as
members of the British Commonwealth of Nations."
4. For the purposes of this case two problems are presented by the concluding part of s.2(2) which includes within the powers of a Dominion Parliament "the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion". Initially there is the question of what is meant by the expression "part of the law of the Dominion". It may mean either the law in force in the territory constituting the Dominion or the law falling within the powers of the Dominion Parliament. The same or a virtually identical expression appears in the third recital, s.4 and s.10(1). In each instance the words appear to be used in the first rather than the second sense. Indeed, the operation of s.4 and the primary object of the statute in giving effect to the Balfour Declaration would be gravely compromised if the expression were to be given the more restricted meaning. The Reports of the Imperial Conferences of 1926 and 1930, as well as the Report of the Conference on the Operation of Dominion Legislation in 1929 make it clear that the expression was designed to identify Imperial laws which were part of the law in force in the Dominion and enforced by its courts, as distinct from laws enacted by the United Kingdom Parliament which regulate conduct of its citizens in that Dominion, laws which would not be enforced by the courts of the Dominion.
5. By way of illustration, the draft of what is now s.4 of the Statute which had been recommended by the Conference on the Operation of Dominion Legislation was amended by the Imperial Conference of 1930. The initial draft merely provided that no Act of the Parliament of the United Kingdom should extend to a Dominion. The amendment added the words "as part of the law in force in that Dominion", thereby giving expression to the concept expressed in slightly different words in the then existing draft of what became s.2(2) of the Statute. The reason stated in the Report for making the amendment was that the United Kingdom delegates were apprehensive lest the clause in its unamended form should have the effect of preventing an Act of the United Kingdom Parliament passed thereafter from having the operation which the legislation of one State normally has in relation to the territory of another. In consequence of an expressed concern on the part of some Dominions that the acceptance of the Dominion might imply the recognition of a right of the United Kingdom Parliament to legislate in relation to a Dominion (otherwise than at the request and with the consent of the Dominion) in a manner which, if the legislation had been enacted in relation to a foreign state, would be inconsistent with the principles of international comity, it was agreed that the draft as amended did not imply, and was not to be considered as implying, the recognition of any such right. In the event s.4 of the Statute for the sake of consistency was expressed so as to conform with the formula used in the third recital, s.2(2) and s.10(1). But there can be no doubt that the words chosen were designed in all their applications to refer to the law in force in the territory constituting the Dominion.
6. The second problem presented by the concluding words of s.2(2) is that they are susceptible of two interpretations. The provision may be no more than explanatory of the earlier part which provides that no future law of the Parliament of the Dominion shall be void or inoperative on the ground that it is repugnant to the law of England. On the other hand, it may mean that the Parliament of a Dominion shall have an independent power to repeal or amend an Imperial statute operating in the Dominion simply because it is an Imperial statute. Sir Owen Dixon, though favouring the first interpretation, considered that it was foreclosed by the decisions of the Privy Council in Moore v. The Attorney-General for the Irish Free State (1935) AC 484, and British Coal Corporation v. The King (1935) AC 500 (see his article "The Statute of Westminster 1931", (1936) 10 Australian Law Journal Supplement 96).
7. To the reader familiar with the federal Constitutions of Canada and Australia and the distribution of powers which they make between the central and constituent legislatures it would be natural to read the provision, as Sir Owen Dixon read it, "as doing no more than removing from the legislative power of the Dominion the restriction on its exercise which the existence of the Imperial statute might impose" (p.101). So understood, the subsection eliminates the restriction constituted by the existence of the Imperial statute on the exercise of legislative power by a Dominion Parliament without affecting the distribution of legislative powers brought about by the Constitutions of Canada and Australia. This reading of s.2(2) is supported to some extent by the Reports of the Imperial Conferences which do not indicate any intention to interfere with the existing division of legislative powers under federal Constitutions. Moreover, the marginal note, "Validity of laws made by Parliament of a Dominion", tends to suggest that the subsection is merely directed to the validation of Dominion legislation and that it does not confer legislative powers on a Dominion Parliament on a matter not committed to it by the Dominion Constitution.
8. However, to the reader who seeks to apply s.2(2) to a unitary constitution
the critical provision assumes a different complexion. He naturally reads the
words as enlarging the legislative
powers of the Dominion Parliament for there
is nothing in the language which explicitly gives the provision the character
of an explanatory
statement of what has gone before. That part of the
subsection which provides:
"No law ... shall be void or inoperative on theeffectively excluded the common law doctrine of repugnancy. There was therefore no point in making additional provision by specifically granting a power to repeal or amend an Imperial statute extending to the Dominion unless the object of the grant was to bring that repeal or amendment within the ambit of the legislative powers of the Dominion Parliament, that is, to make repeal or amendment a subject matter within legislative power.
ground that it is repugnant to the law of England,
or to the provisions of any existing or future Act
of Parliament of the United Kingdom ..."
9. Viewed in isolation, par.51 of the Report of the Conference on the
Operation of Dominion Legislation in 1929 might be thought
to point to the
opposite conclusion. It recommended that the Statute should contain:
"... a substantive enactment declaring the powersi.e. the doctrine of repugnancy. But par.57 of the Report went on to say:
of the Parliament of a Dominion, lest a simple
repeal of the Colonial Laws Validity Act might be
held to have restored the old common law doctrine."
"If the above recommendations are adopted, theIt was evidently considered that the exclusion of the doctrine of repugnancy should be accompanied by a positive grant of legislative power bringing the repeal or amendment of an Imperial statute within the ambit of legislative competence of a Dominion Parliament.
acquisition by the Parliaments of the Dominions of
full legislative powers will follow as a necessary
consequence."
10. Sections 7, 8 and 9 of the Statute appear to proceed on the assumption that s.2(2) has this broader meaning or that it might be so interpreted. On the narrower interpretation of s.2(2) favoured by Sir Owen Dixon, these sections were unnecessary. On his view the subsection would not have authorized the repeal or amendment by the Dominion Parliament of the Canadian and Australian Constitutions or Imperial statutes dealing with matters within the exclusive legislative competence of the Canadian Provinces or the Australian States. It would perhaps be unwise to set too much store on this argument. In the case of a statute of this kind it is understandable that provisions might be included for more abundant caution to guard against the possibility that s.2 might be given an interpretation which was not intended.
11. Nevertheless on balance the arguments favouring the broad interpretation of s.2(2) are the more persuasive. It is an interpretation which gives effect to the language of the subsection according to its natural and ordinary meaning and attributes to it an operation which makes it part of a coherent statutory scheme in which it is the function of ss.7(3) and 9(1) to preserve the legislative powers of the Canadian Provinces and the Australian States and to ensure that the grant to the Dominion Parliaments of legislative power to repeal and amend an Imperial statute would not authorize the central legislature to make laws on matters within the exclusive competence of a constituent legislature. Furthermore, this interpretation much more effectively achieves the object of the Statute by conferring a very wide power of legislation on Dominion Parliaments, subject of course to the protection for which ss.7(3) and 9(1) provide.
12. Having reached this conclusion I have no need to explore the reasoning of the Privy Council in the two decisions which Sir Owen Dixon regarded as vindicating the broad interpretation of s.2(2). For my part I doubt whether British Coal Corporation throws much light upon the question. Moore stands in a different position. As I understand the decision its effect was to endorse the broad view of the subsection. Their Lordships rejected the argument (a) that the Irish Parliament lacked power under its Constitution, granted by an Imperial Act, to enact the Constitution (Amendment No. 22) Act 1933 amending Art. 66 of the Constitution so as to terminate the right of appeal to the Privy Council, and (b) that s.2 of the Statute did not extend the powers of the Dominion Parliament but merely removed certain restrictions (see p.487). Viscount Sankey L.C.'s answer to the argument was that, were it not for s.2 of the Statute, the Irish Parliament would not have had power (p.497) and that s.2 conferred the necessary power (p.498).
13. This brings me to s.9(1) of the Statute. It provides:
"Nothing in this Act shall be deemed to authorize
the Parliament of the Commonwealth of Australia to
make laws on any matter within the authority of the
States of Australia, not being a matter within the
authority of the Parliament or Government of the
Commonwealth of Australia."
14. Section 9(1) is not as restrictive as s.7(3), the comparable provision
applying to Canada. Whereas s.7(3) confines the Parliament
of Canada to the
enactment of laws in relation to matters within its competence, s.9(1) only
excludes the Commonwealth Parliament
from making laws on any matter within the
authority of the States, not being a matter within the authority of the
Commonwealth Parliament
or Government. The language of s.9(1) is wide enough
to permit the Commonwealth Parliament in exercising the power conferred by
the
concluding part of s.2(2), according to its broad interpretation, to repeal or
amend an Imperial statute on a matter falling
outside the legislative powers
of the Parliament under the Constitution and outside those of the States.
15. It is evident from the very presence and terms of s.9(1) that in a case where the repeal or amendment of an Imperial statute stands outside the legislative powers of the Parliament under the Constitution and within those of the States, the power conferred by the last part of s.2(2) does not relevantly bring the repeal or amendment within the authority of the Parliament. The reference in the subsection to the authority of the Parliament or Government of the Commonwealth is a reference to their powers considered apart from those conferred by the Statute itself, the apparent object of the subsection being to ensure that the operation of the Statute did not result in an accretion of Commonwealth power to the detriment of the powers possessed by the States.
16. At this point it is convenient to notice, if only to dismiss, the suggestion that s.8 of the Statute prevents the Commonwealth Parliament from acquiring the wide power to repeal, which in my view was conferred upon it by s.2(2). The suggestion is that the Commonwealth Parliament contravened s.8 through the medium of the Statute of Westminster Adoption Act in that it altered the Constitution by giving the Parliament a head of legislative power in addition to those given by the Constitution. The point is that the power to repeal is conferred by the Statute not by the Statute of Westminster Adoption Act.
17. If the repeal of Pt VIII of the Merchant Shipping Act can be sustained as an exercise of the legislative power conferred by s.51(xxix) of the Constitution, it is unnecessary to decide whether a State Parliament has power to repeal Pt VIII. I have little doubt that the power conferred by s.735 of the Merchant Shipping Act on the Parliament of a State as the legislature of a British possession would enable the State Parliament to repeal the provisions of Pt VIII in their application to a ship registered in the State engaged in a pleasure cruise within the waters of the State and that, accordingly, the repeal is within the authority of the State under s.9(1) of the Statute notwithstanding that the repeal requires the confirmation of the Privy Council and the assent of Her Majesty under the section. However, it is a more difficult problem to ascertain the scope and content of the power conferred by s.736 and I refrain from discussing it. In passing it should be noted that the reference to the legislature of a British possession in ss.735 and 736 is not to be construed as a reference to the Parliament of a Dominion - see s.5 of the Statute.
18. I turn to the external affairs power. The submission is that the repeal of an Imperial statute applying to Australia, even on a topic which lies otherwise outside the ambit of Commonwealth legislative power, constitutes an external affair. This, so it is said, is because either the continued application of the Imperial statute in Australia or the repeal of the statute is an element in the relationship between the United Kingdom and Australia and thus constitutes an external affair.
19. The proposition that the Commonwealth Parliament could in the exercise of the power conferred by s.51(xxix) repeal a provision in the Merchant Shipping Act in its application to intra-State shipping in Australia would have excited astonishment in 1900. To minds attuned to the legal supremacy of the United Kingdom Parliament, the status of a colony as a dependency of the British Empire, s.2 of the Colonial Laws Validity Act and the doctrine of repugnancy, and aware of the Commonwealth Parliament's lack of legislative power with respect to intra-State shipping, it was unthinkable that the Parliament could repeal by resort to the external affairs power an Imperial statute expressed to apply to Australia or to the colonies generally. However, now that these obstacles to the exercise of the power have been outgrown or eliminated, the question must be considered in a new light.
20. Discussion of it necessarily begins with the observation that the expression "external affairs" was adopted in preference to "foreign affairs", so as to make it clear that the relationships between the Commonwealth and other parts of the British Empire, especially the United Kingdom, were comprehended (R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, at pp 684-685, per Evatt and McTiernan JJ; see also p 643, per Latham C.J.). The characteristics of Australia's relationship with the United Kingdom distinguish it from Australia's relationships with other countries. We have continuing constitutional and legal ties with the United Kingdom and with the Crown which have no counterpart in our relationships with other countries except in so far as our membership of the British Commonwealth of Nations unites us with other nations having ties with the United Kingdom. The central feature of this relationship is that by virtue of the legal supremacy of the United Kingdom Parliament certain Imperial statutes operate proprio vigore in this country and form part of the law in force in Australia. The consequence is that the repeal or amendment of such a statute is an important element in our relationship with the United Kingdom.
21. If the agents of a foreign power attempted to disrupt or interfere with Australian domestic affairs, there could be no doubt that their activities and the need to prohibit them would constitute an external affair sustaining an exercise of the power conferred by s.51(xxix) on the footing that the activities and the need to bring them to an end constituted elements in Australia's relationship with that foreign power (see Zines, The High Court and the Constitution (1981), p.239). And if we look beyond executive acts to a law of a foreign country expressed to apply to conduct in Australia and enforceable by the courts of that foreign country in relation to such conduct, though not forming part of the law in force in Australia applied by Australian courts, we perceive with even greater clarity that the operation of the foreign law here is an intrusion into Australia's domestic affairs which is of necessity an element in Australia's relationship with that foreign country. And it is an element in that relationship which constitutes an external affair supporting an exercise of the s.51(xxix) power in the form of legislation prohibiting compliance, excusing non-compliance or perhaps requiring compliance with the foreign law. I note in passing that the Foreign Antitrust Judgments Enforcement (Restriction of Enforcement) Act 1979 (Cth) which, as its title indicates, makes provision for restricting the recognition and enforcement in Australia of certain foreign judgments obtained in antitrust proceedings, appears to have been based, not so much on the external affairs power, as on the trade and commerce and corporations powers.
22. The distinctive feature of the present case is that the Merchant Shipping Act does form part of the law in force in Australia. It is part of our domestic law, though emanating from the United Kingdom Parliament. The question then is whether the domestic operation of the law denies to its repeal the character of an external affair. In some respects this question is similar to that considered in Koowarta v. Bjelke-Petersen [1982] HCA 27; (1982) 56 ALJR 625, where the Court rejected the argument that the relevant law was not with respect to external affairs because it dealt with internal affairs. As I observed (at pp.649-650), it is immaterial that the law deals with internal affairs if the matter with which it deals is also an external affair, the point being that an affair will often possess qualities or aspects which are external as well as internal.
23. The breadth and complexity of our relationship with the United Kingdom, including the circumstance that statutes of the United Kingdom Parliament have continued to operate here as part of domestic law does not mean that the relationship or the elements in it are insusceptible of becoming an external affair. They mean that the relationship has a greater capacity to generate matters of external affairs than our less complex relationships with other countries. And they mean that an element in that relationship is none the less an external affair even though it has important domestic aspects.
24. To emphasize the domestic operation of the Imperial statutes as part of Australian law serves only to obscure the central feature of what is taking place, viewed from the vantage point of Australia's relationship with the United Kingdom, that is, the repeal of a law enacted for Australia by the Parliament of that country. If an Imperial statute operating in Australia were to be repealed by the United Kingdom Parliament at the request and with the consent of the Commonwealth it would appear with pristine clarity that the repeal constituted an external affair. It would involve representations to and negotiations with the United Kingdom government and the introduction and enactment of the necessary leglislation in the United Kingdom Parliament - activities taking place outside Australia on a government to government basis, culminating in a law which would terminate the operation of the earlier Imperial statute in Australia. If instead, the repeal is undertaken by the Commonwealth Parliament, that repeal is an exercise of the legislative power with respect to external affairs. This is because the repeal brings to an end the operation in Australia of a law enacted for this country by the legislature of the United Kingdom and by enacting the repeal the Commonwealth Parliament manifests in authoritative and unequivocal terms Australia's determination that the United Kingdom law shall no longer be maintained as part of Australian law.
25. At first glance it may be thought that this conclusion attributes to the Statute of Westminster an anomalous operation. It enables the Commonwealth Parliament to repeal a provision in an Imperial statute without conferring on that Parliament power to replace it with a positive provision on the topic with which it deals. But more mature reflection reveals that the result is in conformity with the attainment of legal autonomy on the part of Australia, one of the primary objects of the Statute. By an exercise of its external affairs power the Commonwealth could repeal an Imperial statute applying to Australia, even if the statute deals with a topic with respect to which the States alone possess legislative power, thereby opening the way to State legislation on the topic free from the fetters created by the repealed law. If it were otherwise the repeal of an Imperial statute of the kind in question could only be achieved by a law of the United Kingdom Parliament, an outcome which surely would have been greeted with surprise by the authors of the Statute.
26. Having concluded that the Commonwealth Parliament has power to repeal Pt VIII of the Merchant Shipping Act, I return to the question of construction of s.103 of the Act, mentioned at the beginning of this judgment, arising from the use of the words "is part of the law of the Commonwealth". As I said earlier, the words in question reflect the language of s.2(2) of the Statute. Accordingly, they must carry a meaning which conforms to the meaning which I have ascribed to the words "part of the law of the Dominion". In the result s.103 must be read as referring to the provisions of Pt VIII of the Merchant Shipping Act in so far as that Act as so amended or otherwise affected in its operation, is part of the law in force in the Commonwealth of Australia.
27. In the result the defendant cannot rely on s.503 of the Merchant Shipping Act and I would strike out par.4 of the notice of grounds of defence.
MURPHY J. The plaintiff claims damages for personal injury sustained while
on a pleasure cruise on Sydney Harbour with the defendant
company. The
defendant asserts that its liability is limited by the Merchant Shipping Act
1894 (Imp.) and further that the Navigation
Amendment Act 1979 (Cth) which
purported to repeal the relevant parts of the U.K. legislation is invalid.
Australian Sovereignty
2. In Bistricic v. Rokov [1976] HCA 54; (1976) 135 CLR 552 ("Bistricic"), Robinson v.
Western Australian Museum
(1977) 138 CLR 283 and China Ocean
Shipping Co. v.
South Australia [1979] HCA 57; (1979) 145 CLR 172 ("China Ocean Shipping"),
I set out my
opinion on the emergence of Australian
sovereignty and the political
relationship
between Australia and Britain.
3. On the inauguration of the Commonwealth on 1 January 1901, British
hegemony over the Australian colonies ended and the Commonwealth
of Australia
emerged as an independent sovereign nation in the community of nations. From
then, the British Parliament had no legislative
authority over Australia. The
authority for the Australian Constitution then and now is its acceptance by
the Australian people. Any continuing authority over the Australian people by
the British Parliament
would be inconsistent with Australia's sovereignty;
Australia would not be a legitimate member of the community of nations. The
notion that the States of Australia are still colonies subject to the
legislative authority of the British Parliament is absurdly
incompatible with
their status as constituent parts of the Commonwealth of Australia. These are
not novel propositions. In Baxter
v. Commissioners of Taxation (N.S.W.)
[1907] HCA 76; (1907) 4 CLR 1087, Chief Justice Griffith said:
"The purpose of the Constitution was the creationand
of a new State, the Commonwealth, intended to take
its place amongst the free nations, with all such
attributes of sovereignty as were consistent with
its being still 'under the Crown'. It is essential
to the attribute of sovereignty of any Government
that it shall not be interfered with by any
external power. The only interference, therefore,
to be permitted is that prescribed by the
Constitution itself. A similar consequence follows
with respect to the constituent States. In their
case, however, the Commonwealth is empowered to
interfere in certain prescribed cases" (p.1121).
"The King is the common head of the United Kingdom
and of all the self-governing dominions, and the
legislature of each of these dominions has, subject
to its own Constitution, full autonomy. It seems
strange that in this year 1907, when the world is
resounding with praises of the system of the
British Empire, which allows its different members
to enjoy this freedom and independence, we should
be asked to decide solemnly that the idea is an
entire delusion" (p.1126).
4. The British Parliament can pass a law to regulate rights and liabilities
between persons in Australia or anywhere else. This
law would be perfectly
valid in Britain and would be given effect to by British courts as far as they
could. In Australia or elsewhere
(apart from those places controlled by
Britain, such as Hong Kong and other colonies), it would be of no legal
effect, except to
the extent that those countries allowed it. To contend
otherwise denies the sovereignty of other nations and attributes to the
British
Parliament some divine right to legislate for other peoples.
5. Equally Australia can pass laws to regulate rights and liabilities in other countries, including Britain. Except to the extent that the other countries allow, such laws are of no legal effect in those other countries. Australia has passed laws to regulate the conduct of its citizens elsewhere (see Crimes (Overseas) Act 1964 (Cth) as amended). The Australian Parliament could repeal the legislation providing for the independence of Papua New Guinea. This repeal would be valid in Australia but of no consequence to the courts and people of Papua New Guinea. To an independent sovereign nation, another country's legislation is not binding. The people of Papua New Guinea might well regard such repeal as either a breach of comity, or dismiss it as a "tidying up" of the Australian Statutes to remove legislation which served no useful purpose. Equally a repeal by the British Parliament of the Commonwealth of Australia Constitution Act would, of itself, have no legal effect in Australia.
6. Under Chapter I of the Constitution the legislative power of the
Commonwealth is vested in the Parliament of the Commonwealth, not in the
British Parliament. By s.51 of the Constitution the Parliament's power to
make laws, on certain enumerated matters, is subject to the Constitution. It
is not "subject to the Constitution and also to the Merchant Shipping Act, the
Colonial Laws Validity Act or any other Act which the British Parliament may
pass in regard
to Australia". A number of cases in this Court have
incorrectly interpreted the Constitution as if it did so read (see, for
example, Union Steamship Co. of New Zealand Ltd v. Commonwealth [1925] HCA 23; (1925) 36 CLR
130).
Effect of the Statute of Westminster
7. It follows that the Statute of Westminster 1931 (U.K.) and the Statute of
Westminster Adoption Act 1942 (Cth) did not affect the legislative powers of
the Commonwealth Parliament. That legislation dealt with form not substance
(see
Bistricic at pp.565-566; China Ocean Shipping at pp.236-239).
External Affairs Power (Constitution s.51(29))
8. From its inception the Commonwealth Parliament had power to legislate
extra-territorially (New South Wales v. The Commonwealth
[1975] HCA 58; (1975) 135 CLR 337,
360, 469-471, 497, 502-504 (the "Seas and Submerged Lands" case). Even before
1901, Australian
colonies could
legislate extra-territorially (Wacando v. The
Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 21, 28).
9. The purported operation in Australia of legislative, executive or judicial measures which derive their authority from the legislative, executive or judicial power of any other country is an external affair, as well as an internal affair, of Australia. The fact that something can be characterized as an internal affair as well as an external affair is no barrier to the Commonwealth exercising its power under s.51(29) (see Koowarta v. Bjelke-Petersen [1982] HCA 27; (1982) 56 ALJR 625, 649, 656, 663-664; [1933] HCA 38; (1982) 39 ALR 417, 460-461, 472, 485-487; Commonwealth v. Tasmania [1983] HCA 21; (1983) 57 ALJR 450, 484, 505, 527-528, 543; [1983] HCA 21; (1983) 46 ALR 625, 688, 728, 771-774, 802).
10. The external affairs power enables the Commonwealth Parliament to declare
inoperative any law passed prior to 1 January 1901
which purports to apply in
Australia by authority of the British Parliament. Equally, that power exists
with respect to any law
passed by the British Parliament after 1 January 1901.
Of course certain laws are preserved by the Constitution itself (see Chapter
V, The States). The external affairs power to repeal or declare such a law
inoperative exists even if such law
is on a subject over which the
Commonwealth has no other legislative power. A State to which the law or
purported law applied can
then make its own provision, free of any possible
conflict with foreign laws. As Chief Justice Latham in The King v. Burgess;
Ex
parte Henry [1936] HCA 52; (1936) 55 CLR 608 emphasised:
"...the power to legislate with respect to externalConclusion
affairs is a power expressly conferred upon the
Commonwealth Parliament by the Constitution. No
question of interference with the rights of the
States arises" (p.636) (my emphasis).
11. The challenged provisions of the Navigation Amendment Act 1979 are valid. Paragraph 4 of the notice of grounds of defence should be struck out and the matter remitted to the the District Court.
WILSON J. In this action the plaintiff seeks damages for personal injuries alleged to have been suffered by her whilst she was a passenger on the defendant company's vessel during a pleasure cruise on Sydney Harbour in August 1981. The vessel operates exclusively within Sydney Harbour providing cruises from Circular Quay for fare-paying passengers. In its defence, the company relied, inter alia, on s. 503 of the Merchant Shipping Act 1894 (Imp.) ("the Imperial Act") to limit its aggregate liability to an amount not exceeding fifteen pounds sterling for each tonne of the vessel's tonnage. The plaintiff thereupon sought to have struck out that part of the defence, claiming that, in its application to Australia, s. 503 had been repealed by s. 104(3) of the Navigation Amendment Act 1979 (Cth) ("the Act") with effect from 31 January 1981. Before the application to strike out was heard, this Court, on the application of the Attorney-General of the Commonwealth, removed into the Court so much of the cause "as involves the validity of the repeal of section 503 of the Merchant Shipping Act 1894 (Imp) by section 104(3) of the Navigation Amendment Act 1979 (Cth)".
2. The attack on the validity of the repeal was carried by counsel for the Attorneys-General for the States of New South Wales, Western Australia and Queensland ("the States") with counsel for the Commonwealth and for the plaintiff contending for validity.
3. The real bone of contention between the protagonists is the legislative competence of the Parliament to repeal wholly in its application to Australia the provisions of Pt VIII of the Imperial Act dealing with the limitation of liability of the owners of the ships referred to therein. Hitherto, this Court has recognized, when considering the extent of the power of the Parliament to legislate with respect to trade and commerce with other countries, and among the States (Constitution, s. 51(i)) that the power does not extend to the control of certain kinds of shipping such as pleasure craft and vessels engaged solely in intra-State trade: see Owners of S.S. Kalibia v. Wilson [1910] HCA 77; [1910] HCA 77; (1910) 11 CLR 689; Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth [1921] HCA 31; (1921) 29 CLR 357; R. v. Turner; Ex parte Marine Board of Hobart [1927] HCA 15; (1927) 39 CLR 411. Cf., also, Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) [1965] HCA 3; (1965) 113 CLR 54. However, the present issue does not require a consideration of the trade and commerce power. The Commonwealth asserts that its legislative power to effect the repeal derives from either of two alternative sources: (a) the Statute of Westminster, 1931 (Imp.) ("the Statute") s. 2(2) and (b) the external affairs power (Constitution, s. 51(xxix)). The States deny the sufficiency of either source.
4. Before turning to the central issue, I must deal with a preliminary point
raised by the learned Solicitor-General for New South
Wales. It was submitted
that, as a matter of construction, s. 104(3) of the Act should be given a
limited operation. The material
provisions are:
"103. In this Part, "Merchant Shipping Act"
means the Imperial Act known as the Merchant
Shipping Act, 1894, as amended, or otherwise
affected in its operation, by the provisions of any
other Imperial Act or of any Act, in so far as that
Act as so amended, or otherwise affected in its
operation, is part of the law of the Commonwealth.
104. ...
(3) Part VIII of the Merchant Shipping ActThe argument is that the scope of the repeal is to be determined by the meaning given to the phrase "part of the law of the Commonwealth", and that on its proper construction the phrase refers to the body of Commonwealth law identified by reference to the powers of the Commonwealth Parliament. If this is so, the repeal does not affect and is not intended to affect the continued operation of Pt VIII of the Imperial Act in so far as it forms part of the residual body of State law.
is repealed."
5. The point is a plausible one. It would have been easy for the legislature to have defined the phrase in wider terms if that had been its intention. For example, if the phrase had read "part of the law of Australia" there could have been little foothold for the argument. When the Parliament of the Commonwealth speaks of "the law of the Commonwealth" it is natural to conclude that it is speaking of that body of law to which it is related as a legislature within the federation, a body of law which is identified by reference to the totality of its legislative powers. The phrase may be contrasted with that used to refer to the body of law within the federation which falls within the competence of or is the exclusive concern of the States, namely, "the law of the States". Furthermore, the context is consistent with the submission. The corollary to the repeal of the limited liability provisions of the Imperial Act is the implementation within Australia of the provisions of the International Convention relating to the limitation of the liability of owners of sea-going ships signed in 1957 ("the Convention"). Section 104(2) of the Act approves of the ratification by Australia of the Convention and s. 65 substitutes a new Pt VIII in the Navigation Act 1912 (Cth), as amended, ("the Principal Act"). Division 1 of the new Part deals with the limitation of liability. Although s. 332(1) of the Principal Act expressly excludes the operation of s. 2 (which section limits the application of the Principal Act) in relation to the provisions of the division, thereby applying those provisions to intra-State ships, their operation is nevertheless confined to sea-going ships because the terms of the Convention are limited in that way. Section 333 of the Principal Act enacts that the provisions of the Convention are to have "the force of law as part of the law of the Commonwealth". It is common ground that the ratification of the Convention brings into being an external affair with the consequence that its implementation within Australia is within the legislative competence of the Commonwealth (s. 51(xxix)) notwithstanding that it applies to such intra-State ships as satisfy the description of "sea-going ships". It is of particular importance to note that the Act does not attempt to extend the provisions of the Convention to cover intra-State ships which do not "go to sea" (whatever that expression may mean). It therefore follows that if the wider construction is to be given to the phrase "part of the law of the Commonwealth" in s. 103 of the Act the necessary effect of the Act is to repeal the application of the Imperial Act to intra-State shipping other than sea-going ships without putting any protection at all in its place.
6. The alternative approach is to discern a legislative intent to tailor the
extent of the repeal of the provisions of the Imperial
Act with respect to the
limitation of liability of ship-owners so as to correspond precisely with the
coverage provided by the Convention.
It seems to me that this alternative
construction has much to commend it. It might be said that, given the wider
construction for
which the Commonwealth contends, the lack of any protection
would endure only until the State legislatures, now freed by reason of
the
repeal of s. 503 from the constraints of the Imperial Act, passed their own
legislation. That may be so, but the lack of protection
in the intervening
period could be very serious indeed. This was recognized by the Parliament in
respect of intra-State vessels
which go to sea. They were covered by the new
provisions applying the Convention but subject to the proviso contained in s.
332(3)
of the Principal Act reading as follows:
"(3) The provisions of this Division do not
apply in relation to an intra-State vessel to the
extent that a law of a State or of the Northern
Territory makes provision giving effect to the
Convention in relation to that vessel."
7. It is not suggested that the Parliament is unable, in exercising the power
to make laws with respect to external affairs, to
implement the Convention and
in connection therewith to repeal, so far as Australia is concerned, Pt VIII
of the Imperial Act in
its application to sea-going intra-State shipping.
This being the construction that I would place on s. 104(3) of the Act I am of
the opinion that the repeal of Pt VIII limited in that way is valid. This
conclusion means that I would remit the matter to the
District Court of New
South Wales for determination of the question whether the vessel in question
in this case is a sea-going ship.
If that question be answered in the
negative then the defence based on the Imperial Act will not be struck out. I
may add that
resort to the parliamentary debates as encouraged in cases of
ambiguity by s.15AB of the Acts Interpretation Act 1901 (Cth), as amended, has
not given me any assistance in my consideration of the question. The Hansard
materials reveal no awareness
of the existence of the problem.
8. However, notwithstanding the conclusion to which I have come, I propose in deference to the importance of the central issue which has been argued, to indicate my views on that question.
9. Much argument was directed to the question whether the provisions of s.
2(2) of the Statute conferred additional legislative power on the Commonwealth
Parliament as distinct from releasing it from the fetters
of repugnancy.
Section 2 reads as follows:
"2. (1) The Colonial Laws Validity Act, 1865,
shall not apply to any law made after the
commencement of this Act by the Parliament of a
Dominion.
(2) No law and no provision of any law madeIt is argued for the Commonwealth that the concluding part of s. 2(2) commencing with the words "and the powers of the Parliament of a Dominion" stands as an independent grant of legislative power to repeal or amend any Imperial Act in so far as that Act applies to Australia. The Commonwealth Parliament therefore is empowered, independently of any reliance upon the powers granted to it by s. 51 of the Constitution, to repeal Pt VIII of the Imperial Act entirely in its application to Australia.
after the commencement of this Act by the
Parliament of a Dominion shall be void or
inoperative on the ground that it is repugnant to
the law of England, or to the provisions of any
existing or future Act of Parliament of the United
Kingdom, or to any order, rule or regulation made
under any such Act, and the powers of the
Parliament of a Dominion shall include the power to
repeal or amend any such Act, order, rule or
regulation in so far as the same is part of the law
of the Dominion."
10. If s. 2 is viewed without regard to s. 9 of the Statute, this argument accords a remarkable operation to the section. It is remarkable for several reasons.
11. First, the section as a whole is dealing with the removal of fetters upon the exercise of legislative powers that are already in existence. In that context it was entirely appropriate to conclude with a positive declaration of the power to repeal repugnant Imperial legislation. As a matter of history, the repugnancy doctrine had operated to strike down colonial or Dominion legislation which in its pursuit of local objectives happened in its operation to be inconsistent with Imperial laws; a legislature would seldom if ever have had the temerity to expressly repeal or amend the Imperial law. Now, however, the charter of legislative autonomy is given in terms that are explicit and complete: s. 2 of the Colonial Laws Validity Act 1865 (Imp.) no longer applies (s. 2(1)); the common law doctrine of repugnancy remains dead and buried (s. 2(2)); furthermore the Parliament of a Dominion may, in relation to matters within its legislative competence, expressly repeal or amend Imperial legislation.
12. Secondly, the inclusion of an express power to amend Imperial law would be difficult to comprehend if it stood as part of a new and independent legislative power; but it is entirely appropriate in the context of ss. 735 and 736 of the Merchant Shipping Act which expressly authorized the legislature of a British possession to amend that Act subject to reservation for the approval of Her Majesty in Council. Henceforth the power given by those sections could be exercised freed of the fetter of reservation for approval. Section 5 of the Statute is merely confirmatory of the change.
13. Thirdly, the Statute was not directed to a review of the legislative powers possessed respectively by each of the Dominion Parliaments. It was not concerned with the distribution of legislative powers within those Dominions which exhibited a federal structure. It was concerned with removing old fetters and establishing new conventions in order to eliminate any trace of the historical subordination of the colonial legislatures to the Imperial Parliament and to emphasize the free association under the Crown of members of the British Commonwealth of Nations. The constraints on the Commonwealth's legislative powers were expressly recognized in the Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929 (Cmnd 3479). Therein it was noted, at p. 26, that in the case of Australia the power to enact laws relating to "navigation and shipping" is comprised within the matter of trade and commerce with other countries and among the States, so that intra-State shipping belongs not to the Commonwealth but to the States. However the consequences arising from this division of power lay outside the consideration of the Conference.
14. In the light of these considerations, if s. 2(2) were to be construed standing alone I would have found myself unable to accept the submission of the Commonwealth. The section would not in terms have authorized the Parliament to repeal Pt VIII of the Imperial Act in terms wider than could be supported by reference to the legislative powers granted in s. 51 of the Constitution.
15. Such a conclusion would be entirely consistent with the decision of the Privy Council in British Coal Corporation v. The King (1935) AC 500. That decision confirmed the validity of a law enacted by the Dominion Parliament in the exercise of its legislative power with respect to criminal law granted by s. 91 of the British North America Act 1867 which had the effect of abolishing appeals to the Privy Council in criminal matters notwithstanding the repugnance of the Canadian statute to the Judicial Committee Acts of 1833 and 1844 (Imp.). When compared with the earlier decision in Nadan v. The King (1926) AC 482, the case illustrates the effect of the Statute in enlarging the powers of a Dominion Parliament with respect to matters within its legislative competence. In any event, of course, the provisions of s. 7(3) of the Statute put the matter beyond doubt.
16. The conclusion which I have expressed, however, would have to contend with what appears to be a contrary decision of the Privy Council in Moore v. Attorney-General for the Irish Free State (1935) AC 484 and the expression of conflicting views by learned writers on constitutional affairs: see, for example: Wheare, The Statute of Westminster and Dominion Status, 5th ed. (1953), pp. 158-163; Jennings, "The Statute of Westminster and the Privy Council", Law Quarterly Rev., vol. 52 (1936), 173, at pp.186-187; Latham, The Law and the Commonwealth, (1937), at p.588; Cowen, Parliamentary Sovereignty and the Entrenched Sections of the South Africa Act, (1951), at p. 39; Bailey, The Statute of Westminster, (1931), at pp. 6 ff. The provision is also discussed by Sir Owen Dixon in a paper presented to the Australian Legal Convention in 1936 published in Australian Law Jo., vol. 10 (1936) Supp. 96, at pp. 104-106. Although several of these writers, including Sir Owen Dixon, incline to favour the construction I have preferred, they find that a different conclusion is necessitated by the decision of the Privy Council. With all respect, I wonder whether that is so. It is to be remembered that in Moore their Lordships were concerned with the powers of a Dominion Parliament under a unitary constitution granted by an Imperial Act. There being no express restraint on the exercise of the power conferred by s. 2 of the Statute with respect to the repeal or amendment of the Constitution such as is found applying to Australia in s. 8, it may be that the amendment of the Constitution effected by the law in question in the case was otherwise within the powers of the Parliament.
17. Be that as it may, in the circumstances of this case, I do not find it
necessary to resolve the controversy which finds expression
in the materials
to which I have referred. It is also unnecessary to examine the decision in
Moore in greater detail to determine
finally its applicability to the present
problem. One consideration which militates against the narrower view of s.
2(2) which I have expounded is the presence in the Statute of ss. 7, 8 and 9.
These sections may well have been unnecessary unless s. 2(2) were intended to
confer additional legislative power. On the other hand, there is every reason
to believe that they were inserted
out of an abundance of caution in order to
reassure the States of Australia and the Provinces of Canada that their
constitutional
position within their respective federations would not be
adversely affected by the adoption of the Statute. In 1936 Mr. Justice
Evatt,
in a paper presented to the Australian Legal Convention, stated:
"It is quite clear, in my opinion, that adoptionHe reiterated those assurances, in his capacity as Attorney-General of the Commonwealth, when moving and supporting the Statute of Westminster Adoption Bill in the Commonwealth Parliament: see Aust. Parl. Debates (1942) vol. 172, at pp.1396 and 1476 (H.R.) (see also pp.1568-1569 (Senate)) and also in the monograph which he circulated setting forth the purpose and effect of the adoption by the Parliament of ss. 2, 3, 4, 5 and 6 of the Statute. In the monograph he refers to the three safeguards which were inserted in the Statute and asserts that the second and third safeguards, contained in ss. 8 and 9(1) respectively, were intended to make clear that the States of Australia would be protected against any possible attempt to use the Statute for the purpose of trespassing upon those constitutional domains which still belong to them as a result of the division of powers between the Commonwealth and the States which is expressed in the Constitution. The monograph continues:
(of the Statute) by Australia cannot affect in any
way whatsoever the existing legal and
constitutional rights of the States in relation to
those of the Commonwealth. Indeed the express
safeguarding by the Statute of the position of the
States of Australia was quite unnecessary."
(emphasis supplied) Australian Law Jo., vol. 10
(1936), (Supp.) 96, at p. 107.
"54. The second safeguard prevents the
Commonwealth Constitution from being altered and
the powers of the Commonwealth Parliament from
being enlarged as a result of any power conferred
upon the Commonwealth Parliament by the Statute of
Westminster (section 8, section 9(1)). Of course,
the powers of the Commonwealth Parliament may still
be enlarged but this must be done by the people of
Australia in pursuance of a referendum under
section 128 of the Constitution.
55. The second safeguard makes it clear that,
in relation to matters exclusively within the
competence of a State, the question of applying
United Kingdom legislation to such State is not a
matter of Commonwealth concern but is regulated by
the constitutional practice governing the
relationship between the Parliament of the United
Kingdom and the legislation of the State
(section 9(2)).
56. It is extremely probable that the secondAssurances to the same effect were given by the Secretary of State for the Dominions in the United Kingdom Government: see Finnis, "The Responsibilities of the United Kingdom Parliament and Government under the Australian Constitution", Adelaide Law Rev., vol. 9 (1983), 91, at p. 96.
and third safeguards were quite unnecessary as a
matter of strict law. Still, the Commonwealth
asked for them and therefore the Parliament of the
United Kingdom granted them in order to make
assurance doubly sure." (emphasis supplied).
18. It is unnecessary to pursue these matters to a conclusion because in the
last resort the contention of the Commonwealth based
on the Statute falls to
be determined by reference to the provisions of s. 9(1) of that Statute. That
subsection provides:
"Nothing in this Act shall be deemed to authorizeIf the operation of Pt VIII of the Imperial Act with respect to any part of intra-State shipping is exclusively a "matter within the authority of the States" then plainly s. 9(1) would deny the competence of the Parliament derived from the Statute to interfere with that operation. The Commonwealth advances two arguments in support of a contention that the State legislatures are unable to repeal Pt VIII of the Imperial Act with the consequence that the repeal is not a matter within their "authority". The first is that although s. 735 of the Imperial Act authorizes a State legislature to repeal Pt VIII in its application to ships registered in that State that repeal is not effective unless it is approved by Her Majesty in Council. The second is that by reason of the enactment by the Commonwealth Parliament of the Shipping Registration Act 1981 establishing an Australian register of shipping there is no longer any category of "ships registered in that possession" within the meaning of that expression in s. 735, and therefore no subject matter to which any repeal could relate.
the Parliament of the Commonwealth of Australia to
make laws on any matter within the authority of the
States of Australia, not being a matter within the
authority of the Parliament or Government of the
Commonwealth of Australia."
19. It is plain that the intention of ss. 735 and 736 of the Imperial Act was to accord to colonial legislatures a measure of freedom from the repugnancy fetter imposed upon them by s. 2 of the Colonial Laws Validity Act 1865. Subject to the stated conditions the legislature of a British possession was empowered by any Act to regulate the coasting trade of the possession and to repeal wholly or in part any provisions of the Imperial Act (other than Pt III) relating to ships registered in the possession. The relevant condition was, in the case of an Act to regulate the coasting trade, the inclusion of a suspending clause withholding its operation "until Her Majesty's pleasure thereon has been publicly signified" in the possession. In the case of a repealing Act, it was that the Act should not take effect at least "until the approval of Her Majesty has been proclaimed in the possession". Each of these conditions required the participation of the United Kingdom Government in the ascertainment of Her Majesty's decision. But is the necessity of that participation sufficient to deny to the subject matter of the law the description that it is a "matter within the authority of" the States within the meaning of those words in s. 9(1) of the Statute? In my opinion, that question should be answered in the negative. The important consideration is that a State legislature is empowered to enact legislation on these matters. As a matter of constitutional theory and practice, the Queen herself is an essential component of the legislative process. The existence of a condition precedent to the operation of State legislation requiring a decision by Her Majesty involving the participation of the United Kingdom Government does not deny the authority conferred on the State legislature. Furthermore, until the so-called colonial links between the States and the United Kingdom Government are finally severed, that Government is necessarily involved in the participation by Her Majesty in the government of the State. That participation is a feature of the constitutional authority of the State rather than a denial of it. There are no doubt many examples of legislation being enacted by State legislatures pursuant to the authority given by ss. 735 or 736 of the Imperial Act: cf. Western Australian Marine Act 1948 (W.A.) s. 2; Western Australian Marine Act 1982 (W.A.) ss. 2, 135(2). In my opinion, therefore, the conclusion on this aspect of the argument should be that legislation with respect to intra-State shipping which does not go to sea satisfies the description in s. 9(1) of a law "on any matter within the authority of the States of Australia".
20. The impact of the enactment of the Shipping Registration Act 1981 on the legislative powers of the States under s. 735 is a matter that may require further argument in a case which squarely raises it for decision. In the present case the Court is concerned with the validity of a repealing enactment passed in 1979 which came into operation in January 1981, that is to say, before the enactment of the Shipping Registration Act. The operation therefore of the latter Act cannot affect the question before the Court.
21. It follows, therefore, that in so far as Pt VIII of the Imperial Act
formed part of the law of New South Wales, its repeal was
within the authority
of the Parliament of that State at the material time. Before leaving the
issue, I should add that I reserve
for later consideration, if it arises, the
question as to what is intended to be covered by the phrase "the authority of
the States".
It seems to me to be arguable that the true intent of the
subsection is to confine the power of the Parliament to make laws to those
matters which are within the exclusive or concurrent authority of the
Parliament or Government of the Commonwealth. The reference
to the authority
of the States may not be confined to legislative authority but may be intended
to embrace matters which while of
direct concern to the States do not fall
within the authority of the Commonwealth. Examples may be drawn from matters
which by force
of paramount Imperial legislation form part of the law of the
State (not being within the authority of the Commonwealth) as to which
the
State legislature is prevented by the Colonial Laws Validity Act from passing
repugnant legislation. The point does not arise
in the present case. I merely
reserve it. If and when the matter does arise for decision, I would expect
the proper construction
of s. 9(1) to be assisted by a consideration of the
provisions of s. 7(3), which read as follows:
"(3) The powers conferred by this Act upon theThe difference in wording of the two provisions is to be explained in part by the application of the Statute to the Canadian Provinces and in part by the fact that each subsection was inserted to meet the representations that came from the respective Dominions and their constituent parts. The impact of each subsection on the Dominion legislature in question was clearly intended to be the same, namely, to confine the powers of that legislature to the enactment of laws in relation to matters otherwise within its competence. Only in that way could the careful division of legislative sovereignty effected by their respective constitutions be preserved.
Parliament of Canada or upon the legislatures of
the Provinces shall be restricted to the enactment
of laws in relation to matters within the
competence of the Parliament of Canada or of any of
the legislatures of the Provinces respectively."
22. The second principal submission of the Commonwealth is that in any event
the repeal throughout Australia of Pt VIII of the Imperial
Act is a matter
within the authority of the Commonwealth because it is an exercise of the
power with respect to external affairs.
As I have said, it is common ground
that the ratification of the Convention brings into being an external affair
which the Parliament
may implement within Australia. The subject matter of
that affair is the limitation of liability of sea-going ships. It is
undoubtedly
incidental to the implementation of the Convention within
Australia that the Parliament expressly repeal the operation within Australia
of Pt VIII of the Imperial Act with respect to sea-going ships, because Pt
VIII deals expressly and inconsistently with the same
subject matter. Indeed,
if there was no mention in the Act of Pt VIII its provisions to that extent
would be repealed by necessary
implication. The question at issue boils down
to this: does the power to implement the Convention encompass incidentally
the power
to repeal the operation of Pt VIII with respect to all shipping in
Australia, including intra-State shipping which is not sea-going?
In my
opinion, the answer is clearly no. It may be true that only a comparatively
small segment of Australian shipping falls outside
the Convention. It may
also be true that the effect of a complete repeal is not attended with serious
long-term consequences because
one result of the repeal would be to make it
easier for State legislatures to fill the void; indeed, as to sea-going
intra-State
shipping, the provisions of s. 332(3) of the Principal Act
encourage them to enact at least some local laws. In this respect, the
Parliament may have performed a service for the States by the convenient
removal of an anachronistic piece of Imperial legislation
which affected their
legislative powers. But the fact remains that there is a clear distinction
between sea-going shipping and other
shipping. Legislation which has the
effect of removing an existing protection over the latter category without
substituting any protection
at all is clearly not incidental to the removal of
existing protection over the former category in order to substitute more
adequate
protection. I would echo the words of Kitto J. in Airlines of N.S.W.
Pty. Ltd. v. New South Wales (No. 2) [1965] HCA 3; [1965] HCA 3; (1965)
113 CLR 54, at
p 115:
"This Court is entrusted with the preservation of
constitutional distinctions, and it both fails in
its task and exceeds its authority if it discards
them, however out of touch with practical
conceptions or with modern conditions they may
appear to be in some or all of their applications."
23. Nor could the repeal simpliciter of a law of the United Kingdom which has
become part of the law of an Australian State be upheld
as an exercise by the
Parliament of its legislative power with respect to external affairs. The law
attempting to effect such a
repeal could not properly be characterized as a
law with respect to a law of a foreign State or to relations with a foreign
country.
It would be a law with respect to the repeal of a law of an
Australian State, and as such would have nothing to do with external
affairs.
See China Ocean Shipping Co. v. South Australia [1979] HCA 57; ; (1979) 145 CLR 172, at pp
194-195.
24. In conclusion, then, I would hold that s. 104(3) attracts the limited construction which I outlined earlier in these reasons and that on that construction it is a valid provision. If the provision were to be construed so as to effect a total repeal throughout Australia of Pt VIII of the Imperial Act then in my opinion it exceeds the legislative power of the Parliament. It is unnecessary in that event to consider any question of severance because the provisions of s. 65 of the Act, by implementing the Convention within Australia, necessarily have the effect of repealing by implication throughout Australia the provisions of the Part so far as they apply to sea-going ships.
BRENNAN J. A question of constitutional importance has arisen in an action commenced in the District Court of New South Wales. The question is whether the Statute of Westminster 1931 (Imp.) ("the Statute") adopted by the Statute of Westminster Adoption Act 1942 (Cth) ("the Adoption Act") has conferred power on the Commonwealth Parliament to repeal an Act of the Imperial Parliament which, by express words or by necessary intendment, extends to Australia or to a State or part of Australia though the Act is not a law with respect to a matter otherwise within the legislative power of the Commonwealth Parliament; or whether the Parliament at Westminster is the only Parliament competent to repeal such an Act.
2. The question arises in this way. The plaintiff claimed damages for
personal injury sustained by her on 9 August 1981 when she
was a fare-paying
passenger aboard the defendant's vessel, the "Captain Cook II" which was
cruising in Sydney Harbour. The "Captain
Cook II" is not a sea-going vessel.
At all material times it was engaged exclusively in pleasure cruises on the
waters of Sydney
Harbour. It did not and does not engage in trade or commerce
with other countries or among the States of Australia. Accordingly,
neither
the general provisions of the Navigation Act 1912 (Cth) nor the particular
provisions of that Act governing the limitation of shipowners' liability
applied or apply in relation to
the "Captain Cook II" (see ss.2(1) and 334 of
the Act). The defendant shipowner relied on s.503, one of the provisions of
Part VIII
of the Merchant Shipping Act 1894 (Imp.), and pleaded that its
liability, if any, is limited to an amount "not exceeding fifteen
pounds
sterling for each ton of the said vessel's tonnage" which was stated to be
282.68 tons. The pleaded formula reflects the
terms of s.503 as it stood
prior to the enactment of the Merchant Shipping (Liability of Shipowners and
Others) Act 1958 (U.K.).
The 1958 Act does not extend to New South Wales:
Bistricic v. Rokov [1976] HCA 54; ; (1976) 135 CLR 552. The plaintiff answered
the defendant's
pleading by relying on s.104(3) of the Navigation Amendment Act 1979 (Cth)
which came into force on 1 January 1981 and which reads:
" Part VIII of the Merchant Shipping Act isThe defendant shipowner contended that the Parliament of the Commonwealth had no power to repeal Part VIII of the Merchant Shipping Act in so far as it applies to the "Captain Cook II" cruising within Sydney Harbour. The issue of the validity of the repeal of Part VIII of the Merchant Shipping Act by s.104(3) of the Navigation Amendment Act was removed into this Court on the application of the Attorney-General for the Commonwealth.
repealed."
3. The Attorney-General for the Commonwealth intervened in support of the plaintiff to contend that s.104(3) of the Navigation Amendment Act is valid as an exercise of the legislative power conferred upon the Parliament by s.2(2) of the Statute, ss.2, 3, 4, 5 and 6 of which were adopted by the Adoption Act. An alternative basis of validity was argued, namely, that the repeal of Part VIII of the Merchant Shipping Act is reasonably incidental to the exercise of the external affairs power pursuant to which effect is given to the International Convention relating to the liability of owners of sea-going ships signed at Brussels. The Convention is set out in Schedule 6 to the Act. The Convention, except for Art.1(1)(c), is given the force of law as part of the law of the Commonwealth of Australia by s.333 of the Navigation Act. The Attorneys-General for the States of New South Wales, Queensland and Western Australia intervened to contend that the Parliament of the Commonwealth has no power to affect the operation of Part VIII of the Merchant Shipping Act in its application to ships that are not sea-going and which are not engaged in trade or commerce with other countries or among the States. Both of the Commonwealth's bases for asserting a wider power were denied.
4. A counter attack was made on the validity of the Adoption Act, and that should be disposed of first. I am not sure that I understand the argument correctly, but its starting point seems to be that the Commonwealth Parliament had no power apart from the Statute to enact the Adoption Act. It was said, and truly, that s.2 did not become part of Commonwealth law until the Statute was adopted, and that s.2 itself confers no power to adopt the Statute. If the argument is that no other provision of the Statute conferred power to adopt the Statute I would disagree. Such a power is implicitly conferred by s.10. That section provides that ss.2, 3, 4, 5 and 6 of the Statute should not extend to the Commonwealth unless those sections are adopted by the Commonwealth Parliament. The condition of adoption expressed in s.10 necessarily implies the power to satisfy the condition.
5. The Statute, as its long title states, is "An Act to give effect to
certain resolutions passed by Imperial Conferences held in
the years 1926 and
1930". Chief among the subjects discussed at those conferences were
Inter-Imperial Relations. The 1926 Conference
adopted a report of a Committee
of Dominion Prime Ministers and other Ministers presided over by Lord Balfour.
The report contained
what came to be known as the Balfour Declaration which
purported to define the "position and mutual relation" of Great Britain and
the Dominions:
" They are autonomous Communities within the(Imperial Conference, 1926. Summary of Proceedings, Cmd.2768, p.14). The 1930 Conference was preceded by a Conference on the Operation of Dominion Legislation and the Merchant Shipping Act in 1929. That Conference, as its Report states (par.50), "proceeded on the basis that effect can only be given to the principles laid down in the Report of 1926 by repealing the Colonial Laws Validity Act, 1865, in its application to laws made by the Parliament of a Dominion". The Conference recommended "that legislation be enacted declaring in terms that the Act should no longer apply to the laws passed by any Dominion". The Report of the 1929 Conference was approved by the 1930 Conference and that recommendation was carried into effect by the enactment of s.2 of the Statute. Before that section came into effect, the Colonial Laws Validity Act 1865 (Imp.) had fettered the exercise of legislative power by the legislatures of the several Dominions, the States of Australia and the Provinces of Canada. That Act had given to the laws of a colonial legislature the operation and force of sovereign legislation except to the extent to which those laws might be repugnant to the provisions of any Act of the Imperial Parliament extending to the colony by express words or necessary intendment or to the provisions of any Order or Regulation made under the authority of such an Act (ss.1 and 2 of the Colonial Laws Validity Act; and see Phillips v. Eyre (1870) LR 6 QB 1, at pp 20-21). But, as Professor K.C. Wheare observed, "while the Act was passed to extend rather than to restrict the powers of colonial legislatures, it reasserted, at the same time, in statutory form the overriding supremacy of the Imperial Parliament" (The Statute of Westminster and Dominion Status, 5th ed. (1953), p.79). The supremacy of imperial Acts, Orders and Regulations which extended to Australia over legislation enacted by any of the legislatures in Australia was of particular importance to questions of maritime law and jurisdiction. Those matters were thought to be exclusively of imperial concern apart from "a minute power of local regulation" left to the colonies by ss.735 and 736 of the Merchant Shipping Act: see Professor H.A. Smith "The Legislative Competence of the Dominions" Law Quarterly Review, vol.43 (1927), 378, at pp.383,384. When the Commonwealth was established, the powers of the Parliament were conferred subject to the application of the Colonial Laws Validity Act (Quick & Garran The Annotated Constitution of the Australian Commonwealth (1901), p.350). Stephen J., whose judgment in China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172 examines the significance of the Colonial Laws Validity Act in our constitutional development, said (at p.210) that the continued application of that Act to federated Australia ensured "the supremacy of Imperial laws expressed to apply to Australia over any legislation enacted by the Parliament of the Commonwealth repugnant to those Imperial laws". In Union Steamship Co. of New Zealand Ltd. v. The Commonwealth [1925] HCA 23; (1925) 36 CLR 130, the supremacy of imperial law extending to Australia over federal law was assumed and accordingly the conditions governing the engagement and discharge of seamen imposed by the Navigation Act 1912-1920 (Cth) and Regulations made thereunder were held to be repugnant to the provisions of the Merchant Shipping Acts, and to be void and inoperative. It seems that the maritime laws of the Canadian Parliament were also regarded as subject to the doctrine of repugnancy to the Merchant Shipping Act. In Canadian Pacific Railway Company v. The Steamship Storstad (1920) AC 397 an argument supporting the validity of a 1906 Canadian law altering the Merchant Shipping Act limitation on shipowner's liability was abandoned before the Judicial Committee.
British Empire, equal in status, in no way
subordinate one to another in any aspect of their
domestic or external affairs, though united by a
common allegiance to the Crown, and freely
associated as members of the British Commonwealth
of Nations."
6. When the Statute came into effect in the Commonwealth of Australia, it
abolished for the future the supremacy of imperial law
over federal law.
Section 2(1) declared that the Colonial Laws Validity Act should not apply "to
any law made after the commencement
of this Act by the Parliament of a
Dominion". Section 2(2) provided:
" No law and no provision of any law made after
the commencement of this Act by the Parliament of
a Dominion shall be void or inoperative on the
ground that it is repugnant to the law of
England, or to the provisions of any existing or
future Act of Parliament of the United Kingdom,
or to any order, rule or regulation made under
any such Act, and the powers of a Parliament of a
Dominion shall include the power to repeal or
amend any such Act, order, rule or regulation in
so far as the same is part of the law of the
Dominion."
7. Neither s.2 nor ss.3, 4, 5 and 6 of the Statute extended to Australia as
part of the law of the Commonwealth until those sections
were adopted and a
date was specified for their coming into effect by the Parliament of the
Commonwealth (s.10(1) of the Statute).
Those sections were adopted by the
Adoption Act which specified 3 September 1939 as the effective date (s.3).
The validity of a
federal law made after that date cannot be impugned on the
ground of repugnancy to an imperial law. The position
of federal law
was
strengthened also by s.3 of the Statute which declared and enacted that a
Dominion Parliament had "full power to make laws having
extra-territorial
operation".
8. The 1929 Conference foresaw that enactment of ss.2 and 3 would vest in the
Dominion Parliaments "full legislative powers" (Report
of the Conference on
the Operation of Dominion Legislation
and Merchant Shipping Legislation, 1929
Cmd.3479, pars.57,62). The acquisition
of full legislative powers was, of
course, wholly
in accord with the Balfour Declaration, especially with the
declared intention
that the Dominions be equal in status to Great Britain,
and
in no way subordinate to Great Britain in any aspect of their domestic
or
external affairs. To give effect to that intention,
it was necessary to
overcome a problem arising from British constitutional
theory relating to the
continuing powers of the Imperial
Parliament over British colonies. The
extent of that power has been stated
by Lord Reid speaking for the majority of
the Judicial
Committee in Madzimbamuto v. Lardner-Burke [1968] UKPC 2; (1969) 1 AC 645,
at p
722:
" ... it has never been doubted that, when a colonyIn British constitutional theory the United Kingdom Parliament has not been divested of those powers. In British Coal Corporation v. The King (1935) AC 500, at p 520 the Judicial Committee said that the power of the Imperial Parliament to pass on its own initiative any legislation extending to a Dominion (in that case, to Canada) remained in theory unimpaired by the Statute. The 1929 Conference saw the continuance of this power to be a problem in the way of achieving equality between Great Britain and the Dominions. Paragraph 54 of the 1929 Report read:
is acquired or annexed, following on conquest or
settlement, the Sovereignty of the United Kingdom
Parliament extends to that colony, and its powers
over that colony are the same as its powers in
the United Kingdom."
" With regard lastly to the problem which arises
from the existence of a legal power in the
Parliament of the United Kingdom to legislate for
the Dominions, we consider that the appropriate
method of reconciling the existence of this power
with the established constitutional position is
to place on record a statement embodying the
conventional usage. We therefore recommend that
a statement in the following terms should be
placed on record in the proceedings of the next
Imperial Conference -
'It would be in accord with the established
constitutional position of all members of the
Commonwealth in relation to one another that
no law hereafter made by the Parliament of
the United Kingdom shall extend to any
Dominion otherwise than at the request and
with the consent of that Dominion.'
We further recommend that this constitutionalThe recommendation was adopted at the 1930 Conference and carried into effect in the third preamble of the Statute. A clause was also recommended for enactment in the body of the Statute with a view to resolving the problem (1929 Report, par.55; Imperial Conference, 1930 Summary of Proceedings, Cmd.3717, p.18). That clause is to be found as s.4 which provides:
convention itself should appear as a formal
recital or preamble in the proposed Act of the
Parliament of the United Kingdom."
" No Act of Parliament of the United Kingdom
passed after the commencement of this Act shall
extend, or be deemed to extend, to a Dominion as
part of the law of that Dominion, unless it is
expressly declared in that Act that that Dominion
has requested, and consented to, the enactment
thereof."
9. The provisions of the Statute have been thought to succeed in achieving
the intention implicit in the Balfour Declaration. Those
provisions were said
by Lord Reid in Madzimbamuto (at p.722) "to confer independence and
Sovereignty on the six Dominions" (that
is, the six Dominions mentioned in
s.1: the Dominion of Canada, the Commonwealth of Australia, the Dominion of
New Zealand, the Union
of South Africa, the Irish Free State and
Newfoundland).
10. The 1929 Conference recommendation to grant "full legislative powers" to the Dominion Parliaments led to the insertion of particular provisions to safeguard the position of the Canadian Provinces (s.7) and the Australian States (ss.8,9). The need for some of these safeguards had been foreseen in the 1929 Report (see pars.62-66,68) and others were added upon representations made in 1931. When the Statute was enacted, the power conferred upon the Parliaments of all six Dominions by s.2 was restricted in the case of Canada by the provisions of s.7, in the case of Australia by the provisions of ss.8 and 9(1) and in the case of New Zealand by the provisions of s.8. The content of the grant of power by s.2 to the Parliaments of each of the six Dominions does not change from Dominion to Dominion. The content of the s.2 grant is constant, but in the cases of the three Dominions to which ss.7,8 and 9 respectively relate, the s.2 grant is cut back. Before examining the extent of the powers excised by ss.8 and 9 from the grant of power contained in s.2, the content of the grant should be ascertained.
11. Section 2 conferred upon a Dominion Parliament a power "to repeal or amend" an Imperial Act, order, rule or regulation "in so far as the same is part of the law of the Dominion". It was submitted that, on the true construction of s.2, an imperial law is not a part of the law of the Commonwealth if the law is not made with respect to a subject within the constitutional heads of power of the Commonwealth Parliament. The submission was supported by reference to the writings of some commentators (see Wynes Legislative, Executive and Judicial Powers in Australia, 5th ed. (1976), p.77; Lumb "Fundamental Law and the Processes of Constitutional Change in Australia", Federal Law Review, vol.9 (1978), 148, at p.181). The submission finds no support in the language of the Statute.
12. The phrase "part of the law of the Dominion" or "part of the law of that Dominion" is to be found in ss.2(2), 4 and 10(1) of the Statute. In each case the phrase is descriptive not of a law made by a Dominion Parliament but of an imperial law having a local operation. An imperial law extending to Australia or to a State or part of Australia is part of the law of Australia because it operates as part of the body of law in force in Australia. It is immaterial that the Commonwealth Parliament could have made a law with respect to the same matter. It is not the subject matter of the imperial law but its recognition as a law in force in Australia which determines whether it is "part of the law of the Dominion". The source of the law - whether the Queen or King in Council, the Imperial Parliament, the Parliament of the Commonwealth, the Parliaments of the Colonies or States or the common law - is not the criterion. "The law of the Commonwealth" is an expression of wider denotation than "a law of the Commonwealth" which denotes a law made in exercise of Commonwealth constitutional power (Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226, at p 247). Though an imperial law is not a law of the Commonwealth, it is part of the law of the Commonwealth if it is part of the law in force in the Commonwealth. It is not essential that the law be in force in all parts of Australia. "The law of Australia", as Starke J. said in McArthur v. Williams [1936] HCA 10; (1936) 55 CLR 324, at p 347, "includes the law of all its component parts". An imperial law which extends to a State or part of Australia is part of the law of the Commonwealth, recognized by all Australian courts and given effect according to its tenor. The power of repeal and amendment could hardly have been granted to the legislatures of the Canadian provinces if an imperial law that operated only within a part of a Dominion did not fall within the scope of the power (see s.7(2)). In my opinion, the expression "part of the law of the Dominion" brings within the scope of the power any imperial law in force in any part of a Dominion. If the power conferred on the Parliament of a Dominion falls short of a power to repeal or amend any imperial law extending to that Dominion, the supremacy of the Imperial Parliament over the laws of that Dominion would, to that extent, be retained (see Re Constitution of Canada (1982) 125 DLR (3d) 1).
13. The conferring of a power to repeal or amend imperial laws extending to
the Dominions was complementary to the removal of the
fetter of repugnancy
from the legislative powers of the Dominions, a fetter which had been imposed
or continued by the Colonial Laws
Validity Act. Sir Owen Dixon in his paper
"The Statute of Westminster 1931" (Australian Law Journal, vol.10 (1936-37),
Supplement,
96) thought that the relationship between the power to repeal or
amend and the removal of the fetter from the legislative powers
of the
Dominions might determine the scope of the former power. He wrote (at
p.101):
" This part of the provision immediately followsThe scope of the power would, on this approach, go no further than authorizing the removal of those imperial laws to which the laws enacted by a Dominion Parliament would otherwise be repugnant.
the statement that no future law of the
Parliament of a Dominion shall be void or
inoperative on the ground that it is repugnant to
the law of England. On its surface it might seem
to be no more than explanatory or epexegetical of
that statement. It does not necessarily mean
that the Parliaments of the Dominions shall have
an independent power of repealing or amending
Imperial statutes operating in the Dominion
simply because they are Imperial statutes. It
would be more natural to regard it as doing no
more than removing from the legislative power of
the Dominion the restriction on its exercise
which the existence of an Imperial statute might
impose. So regarded it would not enlarge the
ambit of the powers of a Dominion Parliament. It
would leave them no more and no less extensive
than it found them."
14. The conferring of a power to repeal an imperial law was the means adopted for resolving any conflict between the Imperial Parliament and the Parliament of a Dominion after the Colonial Laws Validity Act ceased to apply to laws made by the Dominion Parliament. A conflict between an imperial law which expressly or by necessary intendment extended to a Dominion and a dominion law could not be resolved by holding either of them to be invalid - the imperial law, so long as it stood, would express the will of the Imperial Parliament as to the legal norm to be applied as part of the law of the Dominion to which the imperial law extended; the dominion law would express the will of the Dominion Parliament as to the legal norm to be applied as part of the law of that Dominion. The removal of the fetter of repugnancy upon the exercise of legislative power by a Dominion Parliament created but did not resolve the question of supremacy between two valid but inconsistent laws, one dominion and one imperial, operating within the same legal system. As Sir Owen Dixon said (at p.105) "it is plain that conflicting laws cannot have equal strength". The conflict might have been resolved by the same means as that prescribed by s.109 of the Constitution for resolving inconsistency between a law of a State and a law of the Commonwealth, but the Statute adopted a different solution. It did not make the imperial law invalid for repugnancy to the federal law. It is difficult to see how the Statute, consistently with British constitutional theory, could have denied on the ground of repugnancy to a dominion law the validity of an Act extending to a Dominion passed by a future Imperial Parliament. The means adopted in order to solve the conflict between an imperial and dominion law was to empower the Parliament of each Dominion to repeal the imperial law. An exercise of the power to repeal then operated directly upon the imperial law, eliminating the conflict.
15. The power of a colonial Parliament impliedly to repeal an imperial law which was part of the general law in force within its territory was not unfamiliar when the Statute was enacted (see Harris v. Davies (1885) 10 AppCas 279). The conferring of a general authority to make laws for a colony carried with it the power to repeal those imperial laws which had not been extended either by express words or by necessary intendment to the colonial territory (see s.1, Colonial Laws Validity Act and Vincent v. Ah Yeng (1906) 8 WAR 145). That power may be, as it has been, exercised by the Parliaments of the respective States. Section 2 conferred on Dominion Parliaments a new power to repeal an imperial law which extended expressly or by necessary intendment to the Dominion. But is the power of repeal restricted, as Sir Owen Dixon suggested, to fulfilling the primary purpose for which it was conferred - the resolution of conflict between an imperial and a dominion law? The language of the provision conferring the power is not restrictive. The laws amenable to repeal or amendment under s.2(2) are described in the subsection by the words "any such". Those words relate to "any existing or future" imperial Act, order, rule or regulation in so far as it is part of the law of a Dominion; the power is not expressed to be confined to an imperial law to which a law of a Dominion Parliament might be repugnant. Any imperial law extending to the Dominion falls within the words of the section (subject, of course, to ss.7,8 and 9). As Sir Owen Dixon acknowledged, a narrower construction of the power is difficult to reconcile with the decisions of the Privy Council in Moore v. The Attorney-General for the Irish Free State (1935) AC 484 and in British Coal Corporation.
16. In British Coal Corporation, the validity of a Canadian Act which prohibited appeals to the Privy Council in criminal matters was upheld. The power of the Canadian Parliament to enact the law was found in The British North America Act 1867 (Imp.) ("the B.N.A. Act"). In Nadan v. The King (1926) AC 482, the Judicial Committee had held a similar law to be invalid on the grounds (as explained in British Coal Corporation) that that law had been repugnant to the Judicial Committee Acts of 1833 and 1844 and that that law could only be effective if it were given an extra- territorial operation which, in 1926, it could not have had. have had. In British Coal Corporation, however, their Lordships held that "what the Statute did was to remove the two fetters" which had made the earlier law invalid so that an exercise of the power conferred by the B.N.A. Act was effective to abolish appeals in criminal matters.
17. Moore's Case was concerned with the powers of the Oireachtas, the Irish
Parliament, under the Irish Constitution. The Oireachtas had purported to
abolish appeals to the Privy Council. In Ireland, by a ruling of the Supreme
Court, it had been
held in substance that the Irish Constitution was subject
only to Irish law and that its provisions were outside the authority of the
Imperial Parliament, but in the Judicial
Committee their Lordships decided the
case on the footing that the validity of the abolition of Privy Council
appeals depended upon
the operation of the Irish Free State Constitution Act
1922 (Imp.) and the Statute. The Oireachtas had been given "sole and
exclusive power of making laws for the peace, order and
good government of the
Irish Free State" and a limited power to amend the Constitution. The Irish
Free State Constitution Act gave the force of law to a Treaty between Great
Britain and Ireland, and Article 2 of that Treaty had been construed as
ensuring
that a right to petition for special leave to appeal to the Privy
Council should be retained: Performing Right Society v. Bray Urban
District
Council (1930) AC 377. That right was provided for in Article 66 of the
Constitution. The Constitution had been fashioned by the Irish Dail and
expressed as a schedule to a Constituent Act which in turn was embodied in the
Imperial
Act and given the force of an imperial law. The Constitution could
be amended by the Oireachtas but, as their Lordships held, the Irish Free
State Constitution Act conferred no power to amend the Constitution otherwise
than in accordance with the terms of the Treaty. It followed that the
Imperial Act could not support an amendment of the
Constitution which would
abolish all appeals to the Privy Council. However, the Oireachtas passed a
law (Act No.6 of 1933) purporting to amend
the Constituent Act and the
Constitution by repealing the provisions limiting its power to amend the
Constitution; then the Oireachtas passed the law purporting to amend Article
66 of the Constitution by abolishing appeals to the Privy Council (Amendment
No.22 of 1933). Their Lordships upheld the validity of the law repealing the
provisions limiting the power to amend the Constitution so that the law
abolishing appeals was then supportable as an amendment of the Constitution.
Sir Owen Dixon observed that, unless some other power of amendment existed,
the Oireachtas "had attempted to enlarge its own power
of amendment by
exercising that very power. On this view it had induced the stream to flow
above the source". But their Lordships
did not uphold the validity of Act No.6
of 1933 and Amendment No.22 of 1933 as an exercise of the power of amendment
conferred upon
the Oireachtas by the Irish Free State Constitution Act. Had
they done so, Sir Owen Dixon's observation would have been justified. Their
Lordships upheld the validity of those Acts
under another power. Their
Lordships found in s.2 of the Statute a new unlimited power to amend Acts of
the Imperial Parliament
of which the Constituent Act, containing the
Constitution, was one. This power was different from and additional to the
power conferred by the Irish Free State Constitution Act. Viscount Sankey
L.C., delivering the judgment of the Judicial Committee, said (at
pp.497-498):
" The Irish Free State is in their Lordships'The power to repeal or amend which the Oireachtas had effectively exercised was not a power existing prior to the Statute; it was a new power conferred by s.2(2) of the Statute and by that alone. Unlike the power considered in British Coal Corporation, the power with which Moore's Case was concerned was not an existing power freed by the Statute from the fetters of the Colonial Laws Validity Act; it was a power which, from the moment when it was conferred, was free from those fetters.
judgment bound by the Acts of the Imperial
Parliament in the same way as any other of the
Dominions; if it were not for s. 2 of the Statute
the Oireachtas would have had no power to amend
or repeal an Act of the Imperial Parliament and
has now such power only so far as any such Act is
part of the law of the Dominion in virtue of s. 2
of the Statute. Hence the Act No. 6 of 1933 and
the Amendment No. 22 of 1933, and certain other
Acts of the Oireachtas not here material which
contain amendments of the articles which are not
within the terms of the Treaty, are valid Acts of
the Oireachtas only in virtue of the Statute.
For the Statute alone gives to the Oireachtas
power to repeal or amend the Constituent Act,
which has the force of an Imperial enactment by
reason that it is embodied in the Irish Free
State Constitution Act, 1922."
18. There is an ambiguity in a passage towards the end of their Lordships'
reasons (at p.498):
" The effect of the Statute of Westminster wasSir Owen Dixon thought this statement contained an ambiguity. He wrote (op.cit., at p.105):
to remove the fetter which lay upon the Irish
Free State Legislature by reason of the Colonial
Laws Validity Act. That Legislature can now pass
Acts repugnant to an Imperial Act. In this case
they have done so."
" It may mean that it can pass Acts because they
are repugnant to an Imperial Act, or it may mean
it can pass Acts notwithstanding that they are so
repugnant.
The first meaning makes the Statute of
Westminster the source of a new legislative power
depending on the existence of an Imperial
statute, a power directed to the repeal and
amendment of such Imperial statutes and
independent of and additional to the existing
legislative powers of the Dominion Parliament.
The second meaning finds in the Statute ofThe context of their Lordships' reasons shows that the first of the two meanings posited by his Honour was intended. Learned commentators reviewing the judgments in Moore's Case and in British Coal Corporation have understood their Lordships to attribute a wide scope to the power: see Wheare, op.cit., pp.161-162; Jennings "The Statute of Westminster and Appeals to the Privy Council", Law Quarterly Review, vol.52 (1936), 173, at pp.186-187; R.T.E. Latham The Law and the Commonwealth (1949) p.588; D.V.Cowen Parliamentary Sovereignty and the Entrenched Sections of the South Africa Act (1951), p.39.
Westminster no new grant of power but only the
removal of a restraint on the exercise of power
otherwise existing, the restraint arising from
the existence of legislation covering the same
field but proceeding from another source, namely
the British Parliament."
19. The reasoning in Moore's Case attributes to the Statute the effect of an
organic law investing the Dominion Parliaments with
the full measure of powers
needed to make the Dominion Parliaments wholly independent of the mother
Parliament to which each Dominion
Parliament owed its existence. To this end
the power of the Imperial Parliament unilaterally to create new legislative
ties with
the Dominion was abandoned (s.4), and the power of the Dominion
Parliaments to sever existing or future legislative ties was granted
(s.2).
Though it is right, as British Coal Corporation shows, to regard s.2 as
removing a fetter from the exercise of powers already
possessed by the
Dominion legislatures, it is erroneous to regard s.2 as doing no more. To
deny the existence of the independent
and additional power to repeal and amend
imperial laws is to confine without warrant the general words by which the
power is conferred,
to defeat the professed purpose of the enactment of the
Statute as revealed by the reports of the Imperial Conferences and to diminish
what the Judicial Committee (in Attorney-General for Ontario v.
Attorney-General for Canada (1947) AC 127, at p 148) called the "transcendent
constitutional importance" of the Statute. The wider construction of s.2(2) is
implicit in what the majority of the Supreme Court
of Canada said in Re
Constitution of Canada, at p 37:
" In the evolution of independence of theNeither in the text of the Statute nor in history is there any ground upon which this Court could properly attribute a restrictive operation to s.2 of the Statute. The Statute has been acted on as the charter of Dominion independence, and on questions of post-colonial constitutional development, the judgments of the Judicial Committee and of the Supreme Court of Canada have high persuasive authority. There is no reason why the view of the Statute which has been taken by those tribunals should not be adopted here.
Dominions, it came to be recognized that the
United Kingdom should no longer legislate at its
own instance for any Dominion; and that the
latter should be free to repeal any British
legislation that was or would be made applicable
to it. Hence, the statement in the preamble and
hence ss.2 and 4 in their application to a
Dominion."
20. After the Statute came into effect in a Dominion, it was no longer appropriate to conceive of the future exercise of legislative power by the Parliament of that Dominion as being sustained by a stream of power flowing from a higher imperial source. The Statute was enacted "to confer independence and sovereignty on the six Dominions", as Lord Reid said in Madzimbamuto (at p.722). The power conferred by the Statute on the respective Dominion Parliaments was different in kind from a grant of power by a Parliament to an agency subject to its legislative control. No grant of power by a Parliament to such an agency is as plenary as the power of the Parliament itself. The Dominion Parliaments were neither delegates of the Imperial Parliament's power nor agencies of a British government. Subject to the provisions of ss.7, 8 and 9, the Dominion Parliaments became in law, as they were in political arrangement, equal in status to and independent of the Imperial Parliament. If s.2 were unaffected by ss.8 and 9, there could be no doubt about the power of the Commonwealth Parliament to enact s.104(3) of the Navigation Amendment Act 1979 and thereby to repeal Part VIII of the Merchant Shipping Act as part of the law of the Commonwealth.
21. Sections 8 and 9(1) of the Statute withdraw part of the legislative power
which s.2 would otherwise confer on the Commonwealth
Parliament. Section 8
removes the Constitution and the Commonwealth of Australia Constitution Act
from the reach of the power to repeal or amend which, as Moore's Case
illustrates, would or might have been construed as authorizing
the amendment
of the organic laws of the Commonwealth. It is not necessary to consider the
effect of s.8 in the present case. Section
104(3) of the Navigation Amendment
Act does not purport to amend the Constitution or the Commonwealth of
Australia Constitution Act, to affect the Constitutions of the States or to
impair the powers of their Parliaments. The attack on s.104(3) is based upon
the provisions of s.9(1). That subsection provides:
" Nothing in this Act shall be deemed to
authorize the Parliament of the Commonwealth of
Australia to make laws on any matter within the
authority of the States of Australia, not being a
matter within the authority of the Parliament or
Government of the Commonwealth of Australia."
22. Section 9(1) is constructed differently from s.8. Section 8 excludes the
imperial laws which it mentions from the class of imperial
laws which the
Commonwealth Parliament is empowered by s.2 to repeal or amend. Section 9(1)
does not exclude any imperial laws from
that class; it denies that the
Commonwealth Parliament is authorized to repeal or amend an imperial law if
the repealing or amending
law would be a law of the kind described in s.9(1).
The kind of law that is not authorized is a law of the Commonwealth Parliament
possessing two qualifications: the first qualification is that it is a law on
"any matter within the authority of the States of Australia";
the second
qualification is that that matter is not within the authority of the
Parliament or Government of the Commonwealth of Australia.
The power
conferred upon the Commonwealth Parliament by s.2 is not cut back by s.9(1)
unless the law to be made in exercise of the
power is a law satisfying both
qualifications. A law which is not on a matter within the authority of the
States is unaffected by
s.9(1); a law on a matter within the authority of the
Parliament or Government of the Commonwealth is also unaffected by s.9(1).
If
the law is on a matter within the exclusive power of the Commonwealth, the law
does not satisfy the first qualification; if the
law is on a matter within
concurrent power it does not satisfy the second qualification.
23. Practically all of those matters which are within the authority of the Parliament or Government of the Commonwealth of Australia are to be found in or are to be implied from the terms of the Constitution (an exception might be found in the Geneva Convention Act 1937 (U.K.) continued in effect by s.6(9) of the Geneva Convention Act 1957 (U.K.)). For practical purposes, the Constitution determines whether the second qualification is satisfied. The question whether the first qualification is satisfied is more complex. The power or the authority of a State is not defined in terms of particular "matters". The legislative powers of the States are conferred in general terms (see the formulae collected by Lumb in The Constitutions of the Australian States, 4th ed. (1977), p.81), and the Parliament of each State has "a complete and unrestricted power to make laws with reference to" the State (Clayton v. Heffron [1960] HCA 92; (1960) 105 CLR 214, at p 250) provided those laws have a sufficient territorial connection with the State (The Commonwealth v. Queensland (1975) [1975] HCA 43; ; 134 CLR 298, at p 311). Despite the breadth of State legislative power, all the matters which are not within the authority of the Parliament and Government of the Commonwealth cannot be said to be within the authority of the States. A State legislature is "restricted in the area of its powers" (Powell v. Apollo Candle Company (1885) LR 10 AC 282, at p 290) and so is the Commonwealth. Prior to the Statute, there were some matters neither within the authority of the States nor within the authority of the Parliament and Government of the Commonwealth, but solely within the authority of the Imperial Parliament. The Geneva Convention Act 1937 (U.K.) furnishes a more recent example, subsequent to the Statute but prior to the Adoption Act. An hypothesis that all matters which were not within the authority of the Parliament and Government of the Commonwealth were within the authority of the States is erroneous and s.9 will be misconstrued if that hypothesis is relied on to define its scope and operation.
24. If that hypothesis were relied on, the Statute would stop short of authorizing the making of laws in exercise of the powers conferred by s.2 on matters which are not within the authority of the States unless the matters were within Commonwealth authority. As the formula used in s.9(1) is used also in s.9(2) to connote the kinds of laws which the United Kingdom Parliament may enact to extend to Australia without the concurrence of the Parliament and Government of Australia, the hypothesis would extend the exemption given to the United Kingdom Parliament from compliance with the concurrence requirements imposed by the Statute (ss.4, 9(3)). A construction which relies upon the hypothesis would give s.9(1) a familiar operation, eliminating the first qualification and restricting the grant of power under the Statute to the making of laws on matters within the existing heads of Commonwealth constitutional power. The validity of a law made in purported exercise of the power conferred by the Statute would depend upon the familiar process of characterization - an examination of the operation of the law and its connection with a constitutional head of power. Under s.9(2) the enquiry would be whether the proposed imperial law extending to Australia would have the requisite connection with a constitutional head of Commonwealth power. A construction of s.9 which relies on the hypothesis would limit the operation of the Statute to the buttressing of existing Commonwealth powers: the Statute strikes the fetter of repugnancy from the exercise of Commonwealth legislative power, the United Kingdom Parliament abandons (so far as it can), in the absence of Commonwealth concurrence, its power to make laws on matters within Commonwealth power, and any constitutional practice which had led the Imperial Parliament before 1931 to forbear from making laws extending to Australia without the concurrence of the Parliament or Government of Australia is continued. But the s.2 grant of power would go no further.
25. If s.9 were construed in reliance on the hypothesis, the Statute would leave some matters (namely, those outside Commonwealth authority) which are or might become the subject of imperial laws beyond the legislative control of any or all Australian Parliaments. Such a restrictive construction would subvert the high constitutional purpose of ss.2 and 3 which were enacted to apply generally to the six Dominions. Such a construction should not be adopted unless the terms of the Statute require it or, if those terms are ambiguous, unless the constitutional compact - made by the people of the federating Australian States, set out in the Constitution and preserved by s.8 of the Statute - is inconsistent with a wider view. Far from requiring such a restrictive construction, the terms of s.9(1) require the wider view to be taken in order to give effect to the first qualification. The first qualification restricts the exclusory operation of s.9(1), and an hypothesis that all matters not within Commonwealth authority are within State authority wrongly extends the denotation of the words "the authority of the States" and reciprocally restricts the power granted by the Statute. The first qualification must be given its proper application in order to ascertain the true ambit of the power conferred by s.2 of the Statute.
26. The relevant limitation on the authority of the States for the purposes
of this case is the limitation imposed by the Colonial
Laws Validity Act. The
Australian States, unlike the Canadian Provinces, did not seek the extension
of s.2 of the Statute to the
laws of the States and the powers of their
Parliaments, although the Colonial Laws Validity Act had operated to
invalidate some of
the laws of the States: see, for example, See v. The
Australian Agricultural Company (1910) 10 SR(NSW) 690; Re Scully; In the
Matter
of an Application for a Hotel Licence (1937) 32 Tas.LR 3. The
legislative authority of the States remains limited by s.2 of the Colonial
Laws Validity Act, and a State has not had and does not have authority to make
a law repugnant to an Act of the Imperial Parliament
extending to the State
expressly or by necessary intendment or to any regulation or order made under
the authority of such an Act.
(Hereafter I shall refer to such an Act,
regulation or order as an imperial law extending to a State). The effect of
the Colonial
Laws Validity Act upon the authority of the States was stated by
the Judicial Committee in In re R. v. Marais, Ex parte Marais (1902)
AC 51, at
p 54:
" The obvious purpose and meaning of that statute
was to preserve the right of the Imperial
Legislature to legislate even for the Colony,
although a local legislature had been given, and
to make it impossible, when an Imperial statute
has been passed expressly for the purpose of
governing that Colony, for the Colonial
legislature in that sense to enact anything
repugnant to an express law applied to that
Colony by the Imperial Legislature itself."
27. An imperial law extending to a State constitutes a limitation upon the
legislative authority of the State, for it cannot make
a law repugnant to the
provisions of such an imperial law. A purported state law which is repugnant
to such an imperial law is,
to the extent of the repugnancy "absolutely void
and inoperative" (Colonial Laws Validity Act, s.2). In Co-operative Committee
on
Japanese Canadians v. Attorney-General for Canada (1947) AC 87, at p 103,
Lord Wright, speaking for the Judicial Committee, said
that the effect of the
Colonial Laws Validity Act "was only that Canadian legislation repugnant to
the statutory law of the United
Kingdom applying to the Dominion was
inoperative". That was said obiter, for their Lordships found that the
impugned Canadian law
was not repugnant to a particular Act of the Imperial
Parliament upon which reliance had been placed to attack the Canadian law.
His Lordship's observation omitted reference to the statutory words
"absolutely void" to which Isaacs J. appeared to give some weight
in
Attorney-General for Queensland v. Attorney-General for the Commonwealth
[1915] HCA 39; (1915) 20 CLR 148, at pp 166-167:
" I am not prepared at the present moment to assent
to the view advanced, that the words 'absolutely
void' have no further effect than the other word
used, namely, 'inoperative' or, in other words,
that the effect of the section is suspensory
only. It is not necessary here to determine that,
but there are considerations such as those
mentioned in Maxwell on Statutes, pp.347-348,
which lead me to reserve my opinion as to the
correctness of that view."
28. The question whether it is possible for a colonial legislature to enact a
law repugnant to an imperial law extending to the
colony is answered by
Marais' Case. It denies that the Parliament of a State could enact such a
law. It may be that what the colonial
legislature attempts to enact is kept,
so to speak, in suspension until any imperial law extending to the colony to
which it is repugnant
is repealed. But the product of such a legislative
attempt is not a law. The Colonial Laws Validity Act gives supremacy to
imperial
laws extending to a State not by making one law prevail over another
but by denying authority to the State to make a repugnant law.
A matter on
which a State cannot make a valid law cannot be said to be within the State's
authority. Matters governed by imperial
laws extending to a State are
therefore not matters within the authority of the State.
29. It cannot be supposed that s.9 was drawn on the hypothesis that matters which the Colonial Laws Validity Act excludes from the authority of the States should be deemed to be within their authority. The words "within the authority of the States of Australia" in s.9(1) are not otiose. Yet those words would be otiose if it were held that s.9 so restricts the power conferred by s.2 of the Statute that the Parliament of the Commonwealth can legislate only on matters already within the authority of the Parliament or Government of the Commonwealth. The words of the first qualification, given their natural meaning and proper application, are seen to have an important operation: the power granted by the Statute may be exercised by making laws on matters not within the authority of the States as well as by making laws on matters within the authority of the Parliament and Government of the Commonwealth. Thus the grant of power by the Imperial Parliament is seen to be ample to fulfil the high constitutional purpose of ss.2 and 3. This construction accords with the principle that in construing an organic law which confers legislative power on a Dominion Parliament "that construction most beneficial to the widest possible amplitude of its powers must be adopted" (British Coal Corporation, at p.518). It does not follow, however, that the Parliament of the Commonwealth has unlimited power to make a law repealing or amending an imperial law extending to a State. There are two important exceptions. One exception flows from s.8 and from the words "any existing or future Act" in s.2(2) of the Statute: the power to repeal or amend an imperial law extending to a State does not authorize the amendment of the organic laws of the Commonwealth: the Constitution, the Commonwealth of Australia Constitution Act and the Statute itself.
30. The other exception flows from the effect upon State authority of repealing or amending an imperial law extending to a State. If the Commonwealth Parliament should repeal an imperial law extending to a State, the legislative authority of the States is no longer restricted by the existence of the imperial law. In the absence of some special exclusion, the matter on which the repealed law was made falls within the authority of the States once the repeal takes effect. Effect must be given to the repeal before the matter on which the repealed law was made falls within State authority but, upon the repeal of the imperial law, a Commonwealth law purporting to control or affect the matter on which the repealed law was made must find support in a constitutional head of Commonwealth power. If it were otherwise, each matter on which the Imperial Parliament has made a law extending to a State would be an independent head of Commonwealth power additional to the powers conferred by the Constitution. The terms of the federal compact as to powers - which I distinguish from the factual matters to which the powers relate - would be altered. The provisions of s.9(1) do not deny authorization to the Commonwealth Parliament to bring matters previously within Imperial authority alone into the authority of Australian Parliaments, but the Constitution determines whether those matters fall, after repeal of the imperial law, within the authority of the Commonwealth or of the States or of both the Commonwealth and States.
31. A Commonwealth law which amends an imperial law extending to a State has the same effect as a law repealing such an imperial law would have upon the authority of the State. The matter on which an amending Commonwealth law is made must be ascertained in part from the imperial provision, in part from the amending provision. The provisions must be read together to ascertain the meaning and operation of the law as the Commonwealth Parliament intends it to be. From the time when the amending provision takes effect, the law expresses the legislative intention of the Commonwealth Parliament, not the legislative intention of the Imperial Parliament. Section 2 of the Colonial Laws Validity Act was enacted to protect from colonial legislative interference "the Provisions of any Act of Parliament extending to the Colony", that is, the expression of the legislative intention of the Imperial Parliament. When a law expresses the legislative intention of the Commonwealth Parliament, the Colonial Laws Validity Act has no relevant operation with respect to it. The matter which is governed by the amended provision is no longer a matter upon which a State is precluded from enacting a repugnant law. If a State were to enact a state law repugnant to the amended provision, the amending Commonwealth law could not be made to prevail over the state law in virtue of the Colonial Laws Validity Act. Only s.109 of the Constitution could operate to make the Commonwealth law prevail.
32. It follows that an exercise by the Commonwealth of its power to repeal or amend an imperial law extending to a State is inconsistent with the continued application of s.2 of the Colonial Laws Validity Act to the repealed or amended law. If the matter on which that law was made is not otherwise a matter outside the authority of the States, it becomes a matter within the authority of the States upon the repealing or amending law taking effect. There is, of course, a difference between a repealing and an amending law. The difference is significant in determining the application of the two qualifications in s.9(1) to a Commonwealth law enacted in purported exercise of the power conferred by s.2 of the Statute.
33. Both qualifications in s.9(1) relate to the "matter" on which a Commonwealth law is made, not - if there be a difference - to the matter on which an imperial law was made. The matter on which a repealing or amending Commonwealth law is made must be ascertained in order to determine whether that matter is within the authority of the States. As the legislative powers of the States are not conferred under specific heads, the means adopted for ascertaining whether a Commonwealth law is a law with respect to a Commonwealth head of power cannot be adopted in ascertaining whether a Commonwealth law is made on a matter within State authority. The touchstone for determining the matter on which the law is made is what it says and what it does. That is and must be the sufficient and exhaustive description of the matter on which the law is made for the purposes of the first qualification. A repealing law simply negates the operation of the repealed law. A repealing law and the law repealed are laws on the same matter, the operation of the repealing law being a mirror image of the repealed law. However one describes the matter on which an imperial repealed law is made, a Commonwealth repealing law is made on the same matter. As the matter on which an imperial law extending to a State was made is not, prior to that law's repeal, a matter within the authority of the States, a Commonwealth law which repeals the imperial law is equally a law on a matter not within the authority of the States. Such a law does not satisfy the first qualification in s.9(1), and the power conferred by s.2 of the Statute gives it validity.
34. Although it is unnecessary to consider the validity of an amending law for the purposes of the present case, it is desirable to refer briefly to the operation of an amending law made by the Commonwealth Parliament in order to see whether an amending law satisfies or may satisfy the first qualification in s.9(1). Whether the first qualification is satisfied by an amending law depends upon the characterization of the matter on which the law is made and upon the authority of the States to make a law on that matter once the amending law comes into force. An amending law takes its character in part from the amended law and in part from its own terms. If it makes a substantial amendment, it may not be correct to describe the amending law as a law on the same matter as the matter on which the amended law was made. But if the matter on which the amending law is made is properly identified as the matter on which the amended imperial law was made, the Colonial Laws Validity Act does not exclude the matter from the authority of the States once the amending law comes into force. An amending law, like a law of simple repeal, repeals pro tanto an inconsistent imperial law. Unlike a law of simple repeal, however, it also speaks to the future: its amending terms operate prospectively. As a law which simply repeals an imperial law extending to a State is a law on a matter which, until the repealing law comes into force, is not within the authority of the States, the repealing law cannot satisfy the first qualification; but the same cannot be said of an amending law. If, upon an amending law coming into force, the matter on which it is made comes within the authority of the States, the operation of the amending provisions must be supported, if at all, by a constitutional head of Commonwealth power. If the matter on which such an amending law is made is not a matter within the authority of the Parliament or Government of the Commonwealth, the amending provisions satisfy the first but do not satisfy the second qualification in s.9(1) and find no support in s.2 of the Statute. Unless the repealing provisions of such an Act were severable, the Act would be wholly invalid.
35. The effect of those provisions of the Statute touching Commonwealth legislative power may now be stated. Section 9(1) of the Statute precludes the general power conferred by s.2 from authorizing a Commonwealth law which amends an imperial law extending to a State unless the matter on which the Commonwealth law is made is a matter within a constitutional head of Commonwealth legislative or executive power or unless the matter is, for some reason other than the Colonial Laws Validity Act, not within the authority of the States. A Commonwealth law which simply repeals an imperial law extending to a State is authorized by s.2 of the Statute unless the State has an exceptional authority itself to repeal or amend the imperial law. The power conferred by the Statute on the Commonwealth Parliament does not include a power to repeal or amend the Commonwealth of Australia Constitution Act, the Constitution, or the Statute of Westminster.
36. It remains to apply these principles to s.104(3) of the Navigation Amendment Act. Being a provision which simply repeals Part VIII of the Merchant Shipping Act, its enactment is authorized by the Statute unless the States have exceptional authority to repeal or amend Part VIII. That authority is said to reside in ss.735 and 736 of the Merchant Shipping Act. Section 735 gives conditional authority to the legislature of a British possession to repeal, wholly or in part, certain parts including Part VIII of that Act, relating to ships registered in that possession. Section 736 gives the legislature of a British possession conditional authority to regulate the coasting trade of that possession. Assuming that a State is, for the purposes of ss.735 and 736, a "British possession", the power of a State legislature to repeal Part VIII or to regulate the coasting trade of the State by amending the provisions of Part VIII is subject to the condition that the State Act should be confirmed by Her Majesty in Council (s.735) or that it should contain a suspending clause providing that the Act should not come into operation until Her Majesty's pleasure thereon had been publicly signified in that State (par.(a) of s.736). The conditions imposed by ss.735 and 736 respectively are no mere matter of procedure. The Imperial Government's concurrence is required before a State Act can repeal any of the provisions of the Merchant Shipping Act or regulate the coasting trade of a State. Confirmation by Her Majesty in Council as required by s.735 is not merely the Royal assent which may be a step in a State legislative process. What is required is the confirmation of an Act already passed and assented to. Confirmation is to be given on advice of the Ministers of the United Kingdom Government. Clearly, the requirement of confirmation limits the authority of the State Parliament. It may be right to describe a signification of pleasure under s.736 that a State Act should come into operation as a legislative act: cf. The Queen v. Burah (1878) LR 3 AC 889, at p 904. Whether that description is accurate or not, the authority of a State Parliament is not itself sufficient to permit the enactment of a law regulating the coasting trade of the State. An attempt on the part of Queensland to exercise the power conferred by s.736 of the Merchant Shipping Act without satisfying the condition failed: see The Queen v. The Commissioner for Transport; Ex parte Cobb & Co. Limited and Others (1963) QdR 547, esp. per Wanstall J. at pp 585-586. Sections 735 and 736 did not confer on the States authority to repeal or amend Part VIII of the Merchant Shipping Act. Those sections required the concurrence of the Imperial Government signified in the manner specified in the conditions set out in ss.735 and 736. When s.104(3) of the Navigation Amendment Act 1979 was enacted the matter on which that law was made was not within the authority of the States.
37. It follows that the repeal of Part VIII of the Merchant Shipping Act by s.104(3) was within the power conferred upon the Parliament by s.2 of the Statute. It is not necessary for me to consider whether s.104(3) might be supported as a law with respect to external affairs. Paragraph 4 of the notice of grounds of defence, which was drawn in reliance on Part VIII of the Merchant Shipping Act, should be struck out and the action remitted to the District Court.
DEANE J. INTRODUCTORY
2. This notice of motion by the plaintiff to strike out a plea in an action in the District Court of New South Wales has been removed into this Court pursuant to the provisions of s.40 of the Judiciary Act 1903 (Cth). In issue on the notice of motion are the purported effect and validity of s.104(3) of the Navigation Amendment Act 1979 (Cth) ("the 1979 Act") which provides, in terms, that "Part VIII of the Merchant Shipping Act is repealed". By s.103 of the 1979 Act, the reference to the "Merchant Shipping Act" is to be construed as a reference to the "Imperial Act known as the Merchant Shipping Act 1894 ... in so far as that Act ... is part of the law of the Commonwealth". If the provisions of the 1979 Act are effective to remove Part VIII of the Imperial Act from the law of New South Wales, the defendant will be unable to rely on s.503 in that Part to limit the amount which the plaintiff can recover for injuries which she allegedly sustained while a passenger on the first defendant's vessel, the "Captain Cook II", which was on a "pleasure cruise" in Sydney Harbour. The effect of that section (see Bistricic v. Rokov [1976] HCA 54; [1976] HCA 54; (1976) 135 CLR 552) would be to limit any damage to a maximum of 15 pounds sterling per ton of the vessel, that is to say, to a total amount of less than $7,000.
3. The combined effect of ss.103 and 104(3) of the 1979 Act is that the
purported "repeal" of Part VIII of the Merchant Shipping
Act is only "in so
far as" that Part is "part of the law of the Commonwealth". That limitation
reflects
the provision in s.2(2)
of the Statute of Westminster 1931 that the
powers of the Parliament of a Dominion shall include the power
to repeal any
existing
or future Act of the Parliament of the United Kingdom "in so far as
the same is part of the law of the Dominion".
It is common ground
that the
provisions of ss.103 and 104(3) of the l979 Act, in particular the words "part
of the law of the Commonwealth"
in s.103,
must be construed in the context of
the reference to "part of the law of the Dominion" in s.2(2) of the Statute
and it
is convenient
to turn immediately to a consideration of the meaning of
those words in that section.
Meaning of "law of the Dominion" in s.2(2)
4. Section 2 of the Statute of Westminster provides:
"(1) The Colonial Laws Validity Act, 1865, shall
not apply to any law made after the commencement of
this Act by the Parliament of a Dominion.
(2) No law and no provision of any law made after
the commencement of this Act by the Parliament of a
Dominion shall be void or inoperative on the ground
that it is repugnant to the law of England, or to
the provisions of any existing or future Act of
Parliament of the United Kingdom, or to any order,
rule or regulation made under any such Act, and the
powers of the Parliament of a Dominion shall
include the power to repeal or amend any such Act,
order, rule or regulation in so far as the same is
part of the law of the Dominion".
5. The references in sub-s.(2) to a "Dominion" were to each of the six member
countries of the British Commonwealth of Nations (as
it was then commonly
described) which had attained the status of "self-governing Dominions". Those
six countries were New Zealand,
South Africa, the Irish Free State and
Newfoundland, which had each adopted a unitary system of government, and
Canada and Australia,
which had each adopted a federal system. The scheme of
the Statute reflects the course of proceedings at the plenary meetings of
the
1929 Imperial Conference. It is that the general substantive provisions are
contained, in words applicable to all of the Dominions,
in the first three
operative sections (ss.2,3 and 4) while the remaining operative sections deal
with "certain subjects" in respect
of which "special provision" needed to be
made, namely, shipping and admiralty matters (ss.5 and 6) and matters in which
considerations
"peculiar" to one or more of the Dominions called "for special
treatment" (ss.7,8,9 and 10) (see, generally, Report of the Conference
on the
Operation of Dominion Legislation and Merchant Shipping Legislation, 1929
(1930), Cmd. 3479, especially par.57). In that
context, one would expect the
provisions of s.2 of the Statute, including the final words "the law of the
Dominion" which refer distributively
to the law of any Dominion whose
Parliament's powers are in question, to have a corresponding meaning in
relation to each of the
six Dominions. The obvious meaning, when the words
are used to refer indifferently to Dominions with unitary and federal systems
of law, is that which encompasses the whole system of municipal law of the
particular Dominion seen as a territorial community.
The question arises
whether there is anything in the provisions of s.2(2) or in the other
provisions or general context of the Statute
which warrants departure from
that prima facie connotation either in the general construction of the words
or in the application
of them to the Commonwealth of Australia.
6. The argument that the phrase "law of the Dominion" in s.2(2) should, in its application to Australia, be given a narrow and special meaning was based on the distinction between "federal" law and "state" or "provincial" law which is well-known to lawyers in a federation. In the light of that distinction, the phrase should, so it was said, be construed as referring, in the case of a federation such as Australia, to "federal" law alone. The argument fails, however, at every point.
7. As a matter of common usage, the phrase "law of the Dominion" is simply not apposite to raise a distinction between different types of internal laws which might exist in one or more of the Dominions to which sub-s.(2) refers. It is true that, in the special case of Canada, the phrase "Dominion law" is often used to refer to "federal" law. The reason for that is that "Dominion" is part of the actual name of the Canadian Federation (see, e.g., British North America Act 1867 (30 & 31 Vict. c.3), third Recital and s.3) and, in that special context, "Dominion" and "Dominion law" are commonly used to designate the federal entity and federal law as distinct from the federating provinces and provincial law. At the time the Statute of Westminster was enacted however, the phrase, "law of the Dominion" was not so used with regard to any of the other self-governing Dominions. It has never been so used with regard to Australia.
8. Nor is the distinction between "federal" law and "state" or "provincial" law one that is really appropriate to be applied to the construction of the general provisions of s.2(2). The general provisions of the Statute of Westminster emerged, as the Statute's recitals make clear, from the Imperial Conferences of 1926 and 1930. Great Britain and the six Dominions which participated in those Conferences did so on the basis that they were all full members of the British Commonwealth of Nations and were, in the words of the Report of its Inter-Imperial Relations Committee which were adopted by the 1926 Conference, "autonomous Communities ... equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs" (Imperial Conference, 1926. Summary of Proceedings (1926) Cmd.2768, p.14). By 1919, when she had been accepted as a member of the League of Nations, Australia had attained the practical status of a full member of the international community. The same comment can be made of at least Canada, New Zealand and the Union of South Africa. The representation of the two Federations, Australia and Canada, at the Imperial Conferences was not a schizophrenic representation limited to so much of the personality of the nations as could be stamped with a federal, as distinct from a state or provincial, aspect. It was a representation of the "autonomous Community" in its full international personality and capacity. Except in so far as particular problems relating to those Dominions which were federations were expressly raised in the discussions or records of the Conferences and were the subject of "special treatment" in the Statute, no distinction was drawn either at the Conferences or in the Statute between those Dominions which were federations and those Dominions which were not. In that context, the references in the general provisions of s.2 of the Statute to the "law of the Dominion" were references to the whole body of the law of the territorial community or nation. That this is so is confirmed by consideration of the other provisions of the Statute in which the phrase "law of the Dominion" is used. To the extent that they are of assistance, the special Australian sections of the Statute support the conclusion that the phrase was used in that sense in relation to Australia.
9. The phrase "law of the Dominion" or "the law of that Dominion" occurs four times in the Statute of Westminster. On each occasion, it is used to refer indifferently to any of the self-governing Dominions or, in the case of s.10, to any of Australia, New Zealand and Newfoundland. There is nothing at all in the words or subject-matter of those other provisions which suggests that, in the case of a federation, the reference to the "law of a Dominion" was intended to be read in the special and limited sense of referring to part only of the internal law of all or any of the six Dominions.
10. The origins of the special Australian (ss.8 and 9) and Canadian (s.7)
sections were quite different from those of the general
clauses (ss.2,3,4,5
and 6) in that they lay largely in the Dominion to which they related (see,
e.g., Imperial Conference, 1930.
Summary of Proceedings (1930), Cmd. 3717,
pp.17, 19). For that reason, less weight can be placed, in construing the
general clauses,
upon any assistance that can be obtained from the special
Australian and Canadian sections than would have been the case if the general
and special sections had developed together as a coherent whole. Subject to
that qualification, the provisions of s.9 protecting
the position of the
Australian States support, in a number of distinct ways, the conclusion that
the words "law of the Dominion"
in s.2(2) should be construed, in their
application to Australia, as a reference to the whole system of law operating
in this country.
One of those ways is that the provisions of s.9, like those
of s.7, demonstrate that where it was intended to draw a distinction
between
"federal" and "state" or "provincial" laws, the distinction was drawn by the
use of express language. Another is that the
section's confinement of federal
powers to protect the legislative powers of the States did not take the form
of a mere exclusion
of anything not within "federal powers" or "federal law"
under the internal constitutional division of governmental power and function.
It took the form of an exclusion only of those matters which could be
identified as being positively "within the authority of the
States of
Australia" and "not ... within the authority of the Parliament or Government
of the Commonwealth" (s.9(1)) with, in the
case of s.9(2), a further
restriction on the ambit of the exclusion by reference to the established
practice before the commencement
of the Statute as to the circumstances in
which the United Kingdom Parliament would make a law which extended to
Australia without
"the concurrence of the Parliament or Government of the
Commonwealth". Yet another way in which the provisions of s.9 support the
view that the words "law of a Dominion" in s.2(2) should be so read is that,
if the words are given the restricted meaning of referring
only to "federal"
law, the provisions of s.9 are largely surplusage, at least in their
application to s.2, since a repeal or amendment
of an Imperial Act in so far
as it was part of "federal law" under the constitutional division of
legislative powers would never
be a law on a matter within the authority of
the States and not within the authority of the Commonwealth Parliament.
Meaning of "law of the Commonwealth" in s.103 of 1979 Act
11. It follows that the words "law of the Dominion" in
s.2(2) of the Statute must be read as designating, in their application to
Australia, the municipal law of Australia regardless of
whether
a
constitutional lawyer would, on internal analysis, determine that a particular
law should properly be described as a provision
of "federal law". The
provisions of the 1979 Act repealing Part VIII of the Merchant Shipping Act
"in so far as that Act ... is
part of the law of the Commonwealth" plainly
reflected the limitation
("in so far as the same is part of the law of the
Dominion")
in s.2(2) of the Statute. It should, as a matter of construction,
be
read conformably with the meaning of that limitation. Indeed,
as I
followed the argument, the contrary was not submitted on behalf
of any party
or intervener. So read and subject to questions
of legislative power, the
provisions of the 1979 Act should be construed as "repealing" the provisions
of Part VIII of the Merchant
Shipping Act "in so far as" the provisions of
that Part constituted part of the internal law of Australia, whether
Federal
or State.
The question arises whether the Commonwealth Parliament possessed
legislative competence to enact a law having
that general operation.
The
legislative powers called in aid of validity are the "power to repeal or
amend" a United Kingdom Act
in the second part of s.2(2)
and the power to make
laws with respect to "external affairs" in s.51(xxix) of the Constitution.
It is convenient to approach the question of legislative competence through an
examination of the nature and scope of the conferral
or enhancement of
legislative power contained in the second part of s.2(2) of the Statute.
Construction of second limb of s.2(2)
12. The provision, in the second limb of s.2(2), that "the powers of the Parliament of a Dominion shall include" the specified power of repeal or amendment is ambiguous. Upon analysis, that ambiguity reflects an underlying ambiguity in the word "powers" as used in the phrase "the powers of the Parliament of a Dominion". If the word is read as being used in the abstract, that is as a noun of indefinite designation, the words of the provision are apt to confer upon the Parliament of a Dominion a substantive and independent grant of the legislative power which is expressly said to be included among its "powers". If the word is read as being used specifically to designate the legislative powers which the Parliament of the relevant Dominion already possessed under its constating instrument or instruments, the words of the provision arguably do no more than express in positive terms the strengthening of existing legislative powers which was involved in the removal, by s.2(1) and the first part of s.s2(2), of the fetter of the doctrine of repugnancy. The arguments favouring the respective views may be shortly identified.
13. There are three main considerations favouring the broader view that the provision constituted a grant of an independent legislative power. The first is that, as a matter of language, that would appear to be the more obvious meaning of a provision that the "powers" of a Parliament "shall include" an identified legislative "power". The second is that the purpose served by the Statute was to assimilate "legal relationships to existing political relationships" (see the comment of Mr. Justice Evatt in The Australian Law Journal, vol.10 (1936), Supplement at p.107) by providing legislative acknowledgment and enactment of the concept of the equality of the Dominions with the United Kingdom and with one another which had been formulated at the Imperial Conferences of 1926, 1929 and 1930. In that context, the provisions of s.2 should, in accordance with the settled rules of construction applicable to such an "organic statute" and the "spirit, with which the preamble to the Statute of Westminster is instinct" (sic), be construed so as to accord "the widest amplitude of power" to the Dominion Parliaments (per the Privy Council, Attorney-General for Ontario v. Attorney-General for Canada (1947) AC 127, at p 154). The third is a matter to which reference has already been made in considering the meaning, in its application to Australia, of the phrase "law of the Dominion" in s.2(2) of the Statute. It is that, to the limited extent that they are relevant, the provisions of s.9(1) of the Statute support the view that the legislative power conferred by s.2(2) is not confined merely by reference to the identified heads of legislative power conferred upon the Parliament of the Commonwealth under the Constitution in that s.9(1) is framed on an assumption that the legislative powers conferred by the substantive provisions of ss.2 and 3 will include power to make laws on at least some matters not otherwise "within the authority of the Parliament or Government of Australia" under the constitutional division of powers. Unless that assumption be correct, the confinement of the exclusion in s.9(1) to "any matter within the authority of the States of Australia" and the reverse approach to the constitutional division of legislative power which it involves would be without content or reason in so far as the provisions of s.2(2) are concerned.
14. The main considerations favouring the narrower view flow from the legislative scheme which can be discerned in the overall provisions of s.2. The limited doctrine of repugnancy embodied in s.2 of the Colonial Laws Validity Act 1865 (Imp.) had been seen as a fetter or "restriction on the exercise" of the legislative powers which the Dominion Parliaments enjoyed under their various constating instruments (see, e.g., Sir Owen Dixon, "The Statute of Westminster 1931", Australian Law Journal, vol.10 (1936), Supplement, 96, at p.101). Section 2(1) of the Statute of Westminster removed that fetter or restriction in relation to any future law made by the Parliament of a Dominion by providing that the Colonial Laws Validity Act should not apply to any such law. The negation of the general doctrine of repugnancy with respect to any future law of a Dominion Parliament which was contained in s.2(2) ensured that s.2(1) did not have the effect of reinstating some wider doctrine of repugnancy such as that which had been perceived by Boothby J. in his "career of destruction" on the South Australian Supreme Court as applying prior to 1865 (see Maughan, "The Statute of Westminster", Australian Law Journal, vol.13 (1939), 152, at p.153 and the Report of the 1929 Conference, par.51). In that context, it is arguable that the second part of s.2(2) should properly be seen as intended to do no more than reinforce the provisions of s.2(1) by stating in positive form that existing legislative powers of the Parliament of a Dominion would no longer be confined by an inability to enact legislation which would previously have been invalid solely on the grounds of repugnancy. Apart from the above-mentioned considerations favouring the broader approach, a problem with any such argument is that there is authority to support the view that, notwithstanding the use of the words "absolutely void" in s.2 of the Colonial Laws Validity Act, the doctrine of repugancy should be seen as concerned with the operation or effectiveness of laws and not with legislative capacity (see Co-operative Committee on Japanese Canadians v. Attorney-General for Canada (1947) AC 87, at p 103 but cf. Reg. v. Marais, In re. Marais, Ex parte (1902) AC 51, at p 54; Attorney-General for Queensland v. Attorney-General for the Commonwealth [1915] HCA 39; [1915] HCA 39; (1915) 20 CLR 148, at pp 166-167). Another related, and perhaps more soundly based, problem is that the conferral of the power to "amend or repeal" the local operation which an "existing or future" Imperial Act was, upon its proper construction, intended to have, transcended the mere negation of the doctrine that local legislation was void and inoperative to the extent that it was repugnant to the intended local operation of United Kingdom laws (Colonial Laws Validity Act, s.2). The conferral of that legislative power reflected the decisions of the Imperial Conferences recognizing that, in the light of the autonomy of the Dominions and their equality with the United Kingdom, the question of the extent, if any, to which an enactment of the Parliament of the United Kingdom should be permitted to intrude or continue to operate in the law of a Dominion was essentially a matter for that Dominion and its Parliament. It involved the establishment of a new and reverse doctrine of local repugnancy and the grant of a positive legislative power to alter and override, by direct repeal and amendment, the intended local operation and scope of any existing or future Act of the very Parliament to which, according to traditional legal theory, the Dominion Parliament must look for the actual source of all its legislative powers. There are plainly some conceptual difficulties in seeing such a local legislative power other than as distinct and qualitatively different from the legislative powers which had been previously conferred and under which it was, as a matter of traditional legal theory, "impossible" for the Parliament of a Dominion to repeal or amend the intended operation of an enactment of the "Mother" Parliament to which it was seen as owing both existence and legislative competence (see Marais, at p.54).
15. If the matter were free of authority, the arguments favouring the competing constructions of the provision in the second part of s.2(2) might perhaps be seen as uncompelling in either direction. There is, however, no absence of authority. To the contrary, the decision of the Judicial Committee of the Privy Council in Moore v. Attorney-General for the Irish Free State (1935) AC 484 bears directly upon the correct construction of the provision in s.2(2) and supports the wider view that sees that provision as embodying an independent grant of legislative power.
16. The legislative enactments which comprised the matrix of the decision in Moore's Case are complicated and have been analysed elsewhere (see, e.g., Sir Owen Dixon, at pp.104-105; W. Ivor Jennings, "The Statute of Westminster and Appeals to the Privy Council", Law Quarterly Review, vol.52 (1936), 173, at pp.183-187 and Keith, The Dominions as Sovereign States (1938), at pp.178-180). It suffices for present purposes to say that the case was concerned with the validity of an Act of the Irish Parliament (the Oireachtas of Saorstat Eireann) which purported to amend the Irish Constitution - which was the source of the Irish Parliament's own legislative power - in a manner inconsistent with a limitation of the powers of amendment which that Constitution itself contained. The Constitution was incorporated in a statute of the Imperial Parliament, the Irish Free State Constitution Act 1922 (Imp.). Implicit in the actual decision of the Privy Council that the impugned act was valid was acceptance of the view that s.2(2) of the Statute conferred upon the Irish Parliament "a new power, not merely freedom from restriction on an old power" (see Sir Owen Dixon, at pp.105-106). That this was so is made clear in the passage (at pp.497-498) in the reasons of their Lordships in which they stress that the Oireachtas had acted in pursuance of a legislative power conferred by s.2(2) of the Statute of Westminster and not in pursuance of the legislative powers conferred by the Constitution.
17. The decision in Moore's Case directly turned upon the question of the nature and scope of the "power" conferred by the provision in the second part of s.2(2) of the Statute. That provision was part of an Act of the Imperial Parliament giving legislative force to decisions reached at the preceding Imperial Conferences. That "power" and the Privy Council's determination of its nature and scope were of fundamental constitutional importance to the then Dominions and remain of general importance to those member countries of the Commonwealth which have evolved from colonial status. At the time when Moore's Case was decided, the Judicial Committee was clearly the pre-eminent judicial organ of the British Commonwealth and Empire of which the United Kingdom and the six Dominions were all members. It was also the ultimate appellate tribunal in the Australian judicial system. The effect of the decision was seen and accepted in this country and in other parts of the Commonwealth and Empire as establishing that the provision in the second part of s.2(2) of the Statute of Westminster constituted an independent grant of legislative power to the Parliament of a Dominion (see, e.g., Jennings at pp.186-187; Dixon, at p.106) and that view of the effect of the provision has prevailed ever since (see, e.g., Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1, at p 37; Latham, The Law and The Commonwealth (1949), p 588; Cowen, Parliamentary Sovereignty and the Entrenched Sections of the South Africa Act (1951), p.111 and cf. Wheare, The Statute of Westminster and Dominion Status, 5th ed. (1953), pp.159-163). Other legislation of the Parliaments of at least two of the then Dominions (South Africa and the Irish Free State) was accepted or enacted on the basis of the Privy Council's construction of that provision. The Imperial Parliament, no doubt acting on the basis that the legislative power conferred by the words used in s.2(2) of the Statute was an independent and substantive power to amend or repeal any Act of the United Kingdom to the extent that it was part of local law, subsequently used the identical words in other organic laws conferring legislative powers on the Parliaments of new Dominions (see, as regards India and Pakistan, the Indian Independence Act 1947 (Imp.), s.6(2)). All these circumstances combine to create a situation in which very powerful reasons would require to be identified before this Court would be justified in declining to accept as correct the Privy Council's conclusion regarding the nature and scope of the legislative power which the words of s.2(2) should, as a matter of construction and subject to the effect of other provisions of the Statute, be held to confer. Perhaps such powerful reasons could be identified if the Privy Council's construction of s.2(2) was plainly erroneous or would, if applied to Australia, have an unforeseen effect which would be destructive of the existing authority of the States under the operation of the Imperial Statutes conferring and confining their authority including the division of legislative and governmental powers contained in the Australian Constitution. Neither condition is, however, satisfied. It has been seen that the construction accepted by the Privy Council was, at least, plainly open. The special provisions of ss.8 and 9(1) of the Statute (see below) avoid any such destructive effect. That being so, the correct course for the Court to follow is to accept the construction of s.2(2) of the Statute which formed the basis of the Privy Council's considered judgment in Moore's Case.
18. On that construction of s.2(2), the grant of legislative power to the
Parliament of a Dominion to amend or repeal the local operation of a United
Kingdom Act, or
of an order, rule or regulation made under such an Act, is a
plenary one. Except to the extent to which it is confined by exclusions
or
restrictions found elsewhere in the Statute, it operates to authorize the
repeal or amendment, by the Parliament of a Dominion,
of the local operation
of all Imperial Acts. If left unfettered, it would, on the decision in
Moore's Case, have empowered the Commonwealth
Parliament to repeal or amend
the organic laws upon which legislative and governmental powers in this
country are structured, namely,
the Australian Constitution and the
Constitutions of the six States and, under the guise of amending the local
operation of any United Kingdom Act, to make positive
provision upon subjects
which, under previous United Kingdom legislation including the Commonwealth of
Australia Constitution Act 1900 (Imp.), had been entrusted to and remained
within the exclusive local authority of the States. Obviously such a grant of
legislative power required adjustment to the particular circumstances of
Australia. That adjustment is made in the special sections
of the Statute
applicable to Australia which include provisions framed to cut down, by
exclusion and restriction, the scope of the
grant of legislative power
contained in s.2(2) so as to preserve the established constitutional structure
and to provide what was
seen as proper protection of the existing authority of
the States.
The special Australian provisions (ss.8 and 9)
19. Section 8 of the Statute of Westminster provides, among other things, that nothing in the Statute "shall be deemed to confer any power to repeal or alter the Constitution or the Constitution Act of the Commonwealth of Australia". The exclusion, from the legislative powers conferred by the Statute, of any power to repeal or amend the Constitution or the United Kingdom statute which enacted it also served to protect the State Constitutions which are preserved by the express provision of the Constitution (s.106) that the Constitution of each State "shall, subject to this Constitution, continue as at the establishment of the Commonwealth ... until altered in accordance with the Constitution of the State" (see, also, Constitution, ss.107 and 108 saving State legislative powers). It has not been suggested on behalf of any party or intervener that the provisions of the 1979 Act purporting to repeal Part VIII of the Merchant Shipping Act involve any purported repeal or alteration of any provision of the Australian Constitution. Putting to one side an argument, based on s.8 and relating to the validity of the Statute of Westminster Adoption Act 1942, to which reference is made at the end of this judgment, the restrictions upon the s.2(2) grant of legislative power which are said to be applicable in the present case are those contained in s.9(1) of the Statute.
20. Section 9(1) provides:
"Nothing in this Act shall be deemed to authorize
the Parliament of the Commonwealth of Australia to
make laws on any matter within the authority of the
States of Australia, not being a matter within the
authority of the Parliament or Government of the
Commonwealth of Australia".
21. The words "matter" and "matters" are used in the Statute only in special
clauses (ss.7(3), 9(1) and 9(2)) dealing with Canada
or Australia. They are
used in those clauses in the context of the division of "authority" or
legislative "competence" within the
relevant Federation and as a reference
point for the characterization of a law for determining whether it is within
the "authority"
or the "competence" of Central, State or Provincial
Parliaments or Governments. In that context, it would seem that the words
"matter"
and "matters" are used in the sense in which constitutional lawyers
in both countries have commonly used them. That sense is to
refer to the
subject or subjects on or in respect of which a law operates and by reference
to which it can properly be characterised.
The legislative intent to be
discerned in the provisions of s.9(1) is plain enough. That intent was that
the grant or enhancement
of legislative power contained in the substantive
provisions of the Statute should be, in the case of Australia, confined to the
extent necessary to exclude, as objects of the legislative powers which the
Statute conferred upon the Parliament of the Commonwealth,
those matters which
could be positively identified as falling within the exclusive local authority
of the States. A law which amended
or repealed an Act of the Imperial
Parliament in so far as it was part of the law of Australia would remain
within the grant of legislative
power contained in s.2(2) except to the extent
that it was, for the purposes of s.9(1), a law on a "matter" outside
Commonwealth
legislative or governmental authority. Even to the extent that it
was a law on such a matter, that grant of legislative power was
to be confined
to exclude it only to the extent that the matter on which it operated was
within the authority of the States under
the operation of the Imperial
Statutes which conferred or defined their legislative and governmental
authority.
Combined operation of ss.2(2) and 9(1)
22. The question whether a law is a law on a matter which is within the authority of the States and not within the authority of the Commonwealth must be answered as part of the process of ascertaining, for the purposes of a particular case, the extent of the expansion of Commonwealth legislative powers resulting from the combined operation of s.2(2) and s.9(1). That being so, that question is logically anterior to, and must be answered without regard to, the legislative power conferred by s.2(2). Were it otherwise, the protection of the authority of the States provided by s.9(1) would be without real content in that the sub-section would do no more than import a futile exercise in circuity into the Statute in that any law which repealed or amended a United Kingdom Act, order, rule or regulation in so far as the same was part of the law of Australia would always be within the authority of the Commonwealth Parliament for the reason that it was within the legislative power conferred by s.2(2).
23. On the other hand, the conclusion that the legislative power conferred by
s.2(2) of the Statute is not to be taken into account
in determining whether a
matter is within the "authority" of the Parliament of the Commonwealth for the
purposes of s.9(1) leads
to the further conclusion that the mere fact that a
law operates to repeal or amend an Act of the United Kingdom Parliament in so
far as the same is part of the law of Australia should not, in itself, be seen
as necessarily establishing that that law is not,
for the purposes of s.9(1),
a law on a matter within the authority of either the States or the
Commonwealth. Section 9(1) was plainly
intended to confine the plenary grant
of legislative power contained in s.2(2). Any law enacted pursuant to s.2(2)
will, of necessity,
be a law amending or repealing the intended direct local
operation of an Act of the United Kingdom Parliament and therefore, as a
matter of traditional legal theory and in the absence of the legislative power
conferred by s.2(2), beyond the authority of both
the Commonwealth and the
States. The protection which s.9(1) provides to the States would be illusory
if the fact that an enactment
of the Commonwealth Parliament was within the
terms of s.2(2), in that it operated to repeal or amend the direct local
operation
of an Act of the United Kingdom Parliament, meant that the law was,
of necessity, a law on a matter which was within neither Commonwealth
nor
State authority for the purposes of s.9(1). For the purposes of that
sub-section, the mere fact that a particular law would
have been or would be
struck down by the doctrine of repugnancy to United Kingdom legislation which
was preserved by s.2 of the Colonial
Laws Validity Act is irrelevant to the
question whether that law is on a "matter" within the authority of the States
not being a
matter within the authority of the Commonwealth. It can be argued
that that result flows from the theory that repugnancy under s.2
of the
Colonial Laws Validity Act was a cause merely of pro tanto inoperativeness as
distinct from lack of legislative competence
or authority (see Co-operative
Committee on Japanese Canadians v. Attorney-General for Canada, at p 103). A
sounder basis for that
conclusion is, however, that s.9(1) is, in its
application to a law purportedly made pursuant to s.2(2), concerned with the
identification
of the "matter" upon which the law operates locally and the
fact that the law would have been or would be void and inoperative because
of
repugnancy with the intended local operation of some United Kingdom Act is
simply irrelevant to the question whether that "matter"
is, under the internal
division of legislative powers between the Commonwealth and the States, within
the exclusive authority of
the States.
Overall effect of the Statute of Westminster
24. In the result, the independent grant of legislative power contained in
the second part of s.2(2) of the Statute is of but limited
importance for
Australia. The more important accrual to the legislative powers of the
Commonwealth Parliament which resulted from
the Statute will, for most
purposes, be found to be that involved in the enhancement of existing
legislative powers by removal of
the restrictions involved in the doctrine
that an Act was void and inoperative to the extent of repugnancy with the
intended local
operation of an Imperial Act and in the view that the
Parliament of the Commonwealth lacked competence to make a law whose operation
was extra-territorial. As has been seen, s.2 of the Statute removed the
fetter of repugnancy by providing that s.2 of the Colonial
Laws Validity Act
did not apply to any law subsequently made by a Dominion Parliament and that
no such law should be void or inoperative
on the grounds of repugnancy to the
provisions of any existing or future Act of the United Kingdom Parliament.
Section 3 removed
any fetter relating to extra-territorial operation by
declaring and enacting that the Parliament of a Dominion had full power to
make laws having such operation. The practical operation of the exclusion in
s.9(1) was not to cut down the enhancing effect which
the removal of those
fetters or restrictions had upon existing powers with respect to "matters"
within the Commonwealth's authority
under the Constitution. In so far as s.2
is concerned it was to cut back what would otherwise have been the additional
content of the grant of independent legislative power
contained in the second
part of sub-s.2 of that section. Notwithstanding that operation of s.9(1)
however, the independent grant of legislative power contained in s.2(2) was
important in that it reflected, in positive form, the abolition of the
doctrine of repugnancy and, by expressly conferring a
power to repeal or amend
a United Kingdom Act, order, rule or regulation, expressly established the
paramountcy, for purposes of
Australian law, of an Act of the Commonwealth
Parliament over the local operation of a repugnant law of the United Kingdom.
That
grant also encompassed a further at least theoretical addition to the
legislative power of the Commonwealth Parliament which survived
the effect of
s.9(1). That surviving addition was that the Parliament of the Commonwealth
acquired power to make a law repealing
or amending an Imperial Act, order,
rule or regulation in so far as the same is part of the law of Australia in a
case where such
a Commonwealth law, while not being contrary to the
Constitution, is on a matter which would otherwise have been within the
authority of neither the Commonwealth nor the States. Plainly, such a
case
would be an exceptional one (cf. Colonial Sugar Refining Co. Ltd. v.
Attorney-General for the Commonwealth [1912] HCA 94; (1912)
15 CLR 182,
at pp 214-215; Smith
v. Oldham [1912] HCA 61; (1912) 15 CLR 355, at pp 360-361, 365). It is, however, unnecessary
for
the purposes of the present
case that I attempt to determine
the practical
content or importance of that surviving independent addition
to Commonwealth
legislative
powers. Nor is it necessary
that I consider whether the relevant
provisions of the 1979 Act are a law
on a matter within the authority
of the
States for the purposes of s.9(1) of the Statute. The reason is that I have
come to a firm
conclusion that those provisions
were a law for the peace,
order and good
government of the Commonwealth with respect to "external
affairs". That being so, they
were a law on a "matter" within the authority
of the Commonwealth Parliament under the internal division
of authority
between the
Commonwealth and the States (Constitution, s.51(xxix)).
The Merchant Shipping Act 1894 (Imp.) and the "external affairs" power
25. The provisions of Part VIII of the Merchant Shipping Act did not operate within Australia merely as part of the inherited law. If they had merely so operated, they could have been amended or repealed, as regards their local operation, by the Colonial and, subsequently, State Parliaments in the same way as could the provisions of any other United Kingdom enactment which had been assumed into the common law carried to Australia or had otherwise been made part of the traditional local law (see, generally, The Australian Courts Act 1828 (9 Geo.IV, c.83), s.24; Quan Yick v. Hinds [1905] HCA 10; ; (1905) 2 CLR 345; Harris v. Davies (1885) 10 App Cas 279, at p 281 and Sir Victor Windeyer, "'A Birthright and Inheritance' - The Establishment of the Rule of Law in Australia", Tasmanian University Law Review, vol.1 (1958-63), 635). The provisions of Part VIII were provisions of an Imperial Act which were expressly stated to extend to the whole of Her Majesty's Dominions. Their operation within Australia was the direct operation of a Statute of the United Kingdom. As Taylor J. commented in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [1956] HCA 82; (1955) 96 CLR 397, at p 403, they were "so little a part of the local law in the true sense that", apart from the special procedure established by s.735 of the Merchant Shipping Act involving joint action by the local legislature and the Crown in Imperial Council, their "continued operation within the Commonwealth did not and could not depend upon the desires or intentions, however expressed, of any local legislature".
26. The status of a full member of the international community which Australia had attained by 1919 was confirmed by the Imperial Conferences of 1926, 1929 and 1930 which, as has been mentioned, recognized that "the group of self-governing communities composed of Great Britain and the Dominions" were "autonomous Communities ... equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs" (Imperial Conference, 1926. Summary of Proceedings, p.14). By the time of those Imperial Conferences, Australia's relations with the United Kingdom had, as the Conference records plainly evidence (see, e.g., Cmd.2768, Part VI, ss.iv and v), become a matter of international relations or affairs. The Statute of Westminster provided legal recognition of the fact that Australia was no longer, for purposes of its external affairs or otherwise, subservient to the United Kingdom: it conferred "independence and Sovereignty on the six Dominions therein mentioned" (per the Privy Council, Madzimbamuto v. Lardner-Burke [1968] UKPC 2; (1969) 1 AC 645, at p 722). To borrow words used by Laskin C.J., Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ. of the Canadian Supreme Court in Reference re Amendment of the Constitution of Canada, at p 44, Australia had become entitled "to assert its independence in external relations, be they with Great Britain or other countries".
27. The question of the scope of the constitutional power (S.51(xxix)) to make laws for the peace, order and good government of the Commonwealth with respect to "external affairs" has largely arisen in cases concerning the validity of laws arguably enacted in implementation of an international treaty. The judgments in such cases have been primarily concerned to determine the ambit of the power in relation to treaty obligations. It has, however, long been clear that the legislative power which the sub-section confers is not confined to the making or implementation of treaties. It is a general legislative power which extends to the making of laws with respect to the relations between Australia and other countries and with respect to the actions of other countries in so far as they affect Australia. That this is so can be demonstrated by reference to the three cases in this Court which, in my view, do most to define the scope of the "external affairs" power in the Australian Constitution. These cases are Rex v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608; Koowarta v. Bjelke-Petersen [1983] HCA 21; ; (1983) 57 ALJR 450 and The Commonwealth v. Tasmania.
28. In Burgess, Latham C.J., Evatt and McTiernan JJ. constituted a majority
of the Court. In the course of his judgment, Latham
C.J. was at pains to
stress the generality of the subject matter of the "external affairs" power.
He identified (at p.643) the "substantial
subject matter" of that power as the
"regulation of relations between Australia and other countries". To the same
effect were the
comments of Evatt and McTiernan JJ. (at p.684) in their joint
judgment:
"Therefore the real question is - what isStarke J. (at p.658) expressed the view that the "external affairs" of a State were "matters which concern its relations and intercourse with other Powers or States".
comprehended by the expression 'external affairs'.
It is an expression of wide import. It is
frequently used to denote the whole series of
relationships which may exist between States in
times of peace or war. It may also include
measures designed to promote friendly relations
with all or any of the nations. Its importance is
not to be measured by the output of domestic
legislation on the topic because this sphere of
government is characterized mainly by executive or
prerogative action, diplomatic or consular".
29. In Koowarta (at pp.632-633), Gibbs C.J., with whose judgment Aickin J.
and Wilson J. expressed complete agreement, quoted the
above statements from
judgments in Burgess to support a conclusion that the "natural meaning" of
"external affairs", if the phrase
is considered as a whole, is "matters
concerning other countries". Stephen J. expressed the view that the proper
scope of the external
affairs power was to be measured by reference to what
might affect international relations. "A subject matter of international
concern",
his Honour commented (at p.645), "necessarily possesses the capacity
to affect a country's relations with other nations and this
quality is itself
enough to make a subject matter a part of a nation's 'external affairs'".
Mason J. (at pp.651-653) made clear his
acceptance of the approach adopted by
the majority (Latham C.J., Evatt and McTiernan JJ.) in Burgess. Brennan J.
indicated a similar
approach (at p.663):
"When a particular subject affects or is
likely to affect Australia's relations with other
international persons, a law with respect to that
subject is a law with respect to external affairs.
The effect of the law upon the subject which
affects or is likely to affect Australia's
relationships provides the connexion which the
words 'with respect to' require".
30. In Commonwealth v. Tasmania, Murphy J. (at p 506) expressed the view that
external affairs are concerned with and go beyond
"our relationships with
other nation States". I indicated (at pp.543-544) my complete agreement with
the approach adopted by the
judgments of Latham C.J. and Evatt and McTiernan
JJ. in Burgess. Dawson J. (at p.563) implicitly accepted that the
"international
ramifications" of a law which operates domestically may make it
a law with respect to "external affairs" even though it is not made
in the
implementation of any international obligation.
31. Not only is it clear that the legislative power conferred by s.51(xxix) embraces the power to make laws on matters concerning Australia's relations with other countries and concerning the actions of other countries in so far as they affect Australia. It is also clear that, for the purposes of the "external affairs" power, those "other countries" have, at least from the time of the 1926 Imperial Conference, included the United Kingdom. Indeed, in Burgess, Evatt and McTiernan JJ. (at p.684) pointed out that "the phrase 'external affairs' was adopted in preference to 'foreign affairs', so as to make it clear that the relationship between the Commonwealth and other parts of the British Empire, as well as the relationship between the Commonwealth and foreign countries, was to be comprehended" (and see, to the same effect, per Barwick C.J. New South Wales v. The Commonwealth [1975] HCA 58; (1975) 135 CLR 337, at p 360). In the same case (Burgess, at p 643), Latham C.J. expressly included the regulation of relations between Australia and "other countries within the Empire" within the substantial subject-matter of external affairs. Developments since 1926, including the acquisition of complete sovereignty by the Dominions, the transition from "British Empire and Commonwealth" to "Commonwealth of Nations", the passing of the doctrines of the indivisibility of the Crown and of common allegiance and the accession of the United Kingdom to the European Economic Community established by the Treaties of Rome, have served only to underline the fact that Australia's relations with the United Kingdom are as much a part of Australia's "external affairs" as are its relations with other countries.
32. The question of the extent to which legislative enactments, judicial decisions or executive actions of one independent and sovereign nation should be permitted, merely of their own force, to operate or possess local authority within another is plainly a matter which directly concerns the relations between the two. Indeed, where it is a live question, it is one that will lie at the heart of those relations since it will relate to the very foundations of international relations and international law, namely, the existence and incidents of territorial sovereignty (see, generally, Kelsen, General Theory of Law and State (1961), pp.208ff., 350; Oppenheim's International Law, 8th ed. (Lauterpacht, 1955), vol.1, pp.286-297; De Visscher, Theory and Reality in Public Law, 3rd ed. (trans. Corbett, 1968), pp 204ff.; Buck v. Attorney-General (1965) 1 Ch 745, at p 770). A law precluding the direct operation within Australia of a law of another country is a law with respect to a matter concerning Australia's relations with that country. Those laws of the United Kingdom Parliament which operate within Australia as part of the inherited law can be repealed or amended in the same way as provisions of the common law which have no identifiable statutory origin. They have become truly part of Australia's own local or internal law. Their exclusion from the law of this country by repeal of their provisions involves no question or matter of external affairs. On the other hand, those statutes of the United Kingdom Parliament which operate directly within Australia by force of their operation as Acts of the United Kingdom Parliament and for the reason that that Parliament has said that they should extend to this country are in a different class. To the extent to which they operate directly within Australia by virtue of their character as laws of the Parliament of the United Kingdom, their operation must, at the present time, be seen as a matter concerning the relations between Australia and the United Kingdom.
33. If there were otherwise room for doubt in that regard, the proceedings of the Imperial Conferences and the actual provisions of the Statute of Westminster must surely have removed it. The proceedings of the Imperial Conferences unmistakably demonstrate that the extent to which Acts of the United Kingdom Parliament should be permitted to operate directly within the territory of a Dominion was accepted by the United Kingdom and the other "autonomous" and "equal" members of the British Commonwealth as a general matter to be governed by international agreement between them and as lying, in any particular case, at the heart of the relations between the United Kingdom and the Dominion concerned (see, e.g., Cmd. 2768, pp.17-18; Cmd. 3479, Part V, and Cmd. 3717, Part VI ("Inter-Imperial Relations")). The Statute of Westminster, for its part, gave effect to the consensus, reached and expressed at those International Conferences, that the intrusion of an Act of the United Kingdom into the law of a Dominion was a subject to be governed by international agreement between the United Kingdom and that Dominion when it enacted, in s.4, that no future Act should so extend unless it recorded that the Dominion had requested and consented to the enactment thereof. In that regard, it is relevant to note that the Summary of Proceedings of the 1930 Conference (Cmd. 3717, p.18) records the apprehension of the United Kingdom delegates lest a proposed wording of the clause that was to become s.4 of the Statute should have the effect that it precluded an Act of the United Kingdom Parliament from having even "the operation which the legislation of one State normally has in relation to the territory of another" and that it was to meet that apprehension that the words "as part of the law in force in that Dominion" were included in that section as enacted.
34. Once the conclusion is reached that the extent to which an Act of the
Parliament of the United Kingdom should, of its own force
and not merely as
part of the ordinary local law, operate or continue to operate within
Australia is a matter concerning the relations
between those two countries, it
follows that a law repealing such a local operation of a United Kingdom Act is
a law for the peace,
order and good government of Australia with respect to
"external affairs" since, as has been seen, the "relations of the Commonwealth
with all countries outside Australia, including other Dominions of the Crown,
are matters which fall directly within the subject
of external affairs" (per
Latham C.J., Rex v. Sharkey [1949] HCA 46; [1949] HCA 46; (1949) 79 CLR 121, at p 136, and see also, per
Dixon J., at
p 149). That being
so, the enactment of such a law is within the
legislative
competence of the Commonwealth Parliament under s.51(xxix) of the
Constitution unless there is some overriding restriction which operates to
preclude its enactment. Prior to 1931, the doctrine of repugnancy
would,
according to traditional legal theory, have so operated. Since the removal of
that fetter upon legislative power, there is
no such restriction. Plainly,
the Statute of Westminster designedly and effectively negated any implication
of such a restriction
from considerations of traditional associations, of past
subservience or of the part played by Imperial statutes in the establishment
and development of the law of this country. Subject only to the effect of the
provisions of ss.8 and 9, which have already been considered, the Statute
freed the Commonwealth Parliament "from every one of the constitutional
limitations
which, traditionally, inhibited the law-making of subordinate
legislatures in the British dominions" (Ibralebbe v. The Queen (1964)
AC 900,
at p 923). In that regard, one can do no better than quote the words used by
the Privy Council in British Coal Corporation
v. The King (1935) AC 500. In
speaking of the competence of the Canadian Parliament, in the exercise of its
ordinary legislative
powers under the British North America Act (referred to
in the judgment as "the Act"), to curtail the Imperial Prerogative to
entertain
appeals from colonial courts (a matter to which the Canadian, unlike
the Australian, Constitution makes no express reference), their Lordships said
(at pp.517-518 and 520):
" ... It is true that before the Statute, theThose words are, if the reference to s.7 of the Statute is read as a reference to ss.8 and 9, applicable to Australia and to the legislative power of the Australian Parliament with respect to Australia's external affairs.
Dominion Legislature was subject to the limitations
imposed by the Colonial Laws Validity Act and by
s.129 of the (British North America) Act, and also
by the principle or rule that its powers were
limited by the doctrine forbidding extra-territorial
legislation, though that is a doctrine
of somewhat obscure extent. But these limitations
have now been abrogated by the Statute. There now
remain only such limitations as flow from the
(British North America) Act itself, the operation
of which as affecting the competence of Dominion
legislation was saved by s.7 of the Statute, a
section which excludes from the competence of the
Dominion and Provincial Parliaments any power of
'repeal, amendment or alteration' of the Act. But
it is well known that s.7 was inserted at the
request of Canada and for reasons which are
familiar. It is doubtless true that the power of
the Imperial Parliament to pass on its own
initiative any legislation that it thought fit
extending to Canada remains in theory unimpaired:
indeed, the Imperial Parliament could, as a matter
of abstract law, repeal or disregard s.4 of the
Statute. But that is theory and has no relation to
realities. In truth Canada is in enjoyment of the
full scope of self-government: its Legislature
was invested with all necessary powers for that
purpose by the Act, and what the Statute did was
to remove the two fetters which have already been
discussed" (underlining added).
34. In the result, the exclusion from Australia of the direct operation of the provisions of Part VIII of the Merchant Shipping Act was a law concerning Australia's relations with the United Kingdom. It was a law with respect to Australia's external affairs. Since it was not within the provisions of either s.8 or s.9 of the Statute of Westminster and did no more than repeal the local operation of provisions of a United Kingdom Act, it was within the legislative competence of the Commonwealth Parliament under the combined operation of s.51(xxix) of the Constitution and s.2 of the Statute.
36. This conclusion does not involve the proposition that the amendment of an Act of the United Kingdom Parliament to make new or altered substantive provision is necessarily within the scope of Commonwealth legislative power. If, instead of a mere repeal, the relevant provisions of the 1979 Act had purported to amend the Merchant Shipping Act in its local operation on matters which would, apart from the "external affairs" power, lie exclusively within State authority under the internal division of legislative powers, it would seem that such an amending law should properly be seen as a law on a matter not within the authority of the Commonwealth for the purposes of s.9(1) of the Statute to the extent that it went beyond "clearing the decks" by expressly or impliedly repealing the United Kingdom Act in so far as it directly operated as part of the law of Australia. The reason for that is that, while the removal or repeal of the direct operation of a law of another country within Australia is a law with respect to Australia's external affairs, the local enactment of an amendment to operate locally on the subject matter upon which that law operates will ordinarily bear the character, to the extent to which it goes beyond mere repeal by making positive provision, not of a law with respect to Australia's external affairs but simply of a law with respect to the matter or matters upon which such positive provision is made.
37. Some statements in this judgment have contained the qualification "according to traditional legal theory". That is because the case was, in accordance with the approach long accepted in this Court, argued on the basis that the authority of the provisions of the Australian Constitution and the Statute of Westminster rests, as a matter of legal theory, wholly upon their enactment by the Imperial Parliament as distinct from resting upon a wider foundation which also encompasses the social compact and the international agreements which the Constitution and the Statute respectively embodied. That is not to suggest that there may be grounds for questioning the rejection by this Court of the general proposition that Imperial statutes which applied to Australia have somehow automatically ceased so to apply (see, e.g., China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172, at pp 194, 208-209, 240). It may, however, be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full "independence and Sovereignty". Plainly, there is something to be said for the view that any explanation of the legal nature of that process is incomplete if it fails to acknowledge and examine the relevance and importance, under both international law and internal law, of that social compact, of those international agreements, of the "established constitutional position" to which the Statute of Westminster expressly refers and of international recognition of Australia as an independent and sovereign State whose only de jure Government is that which is locally based (cf. Buck v. Attorney-General, at p 770; Ibralebbe v. The Queen, at pp 924-5). Those questions could become of some practical importance if the Parliament of the United Kingdom were, for example, to purport on its own initiative to repeal the provisions of the Constitution or the provisions of the Statute or otherwise to legislate for Australia. Apart from such far-fetched examples however, they lie largely in the realm of theory by reason of the scope of the power to amend the Constitution by the process which it itself contains (s.128) and, at least since the Statute of Westminster, of the full ambit of the power under the Constitution to make laws, however extra-territorial be their operation and however repugnant they be to the law of another country, with respect to external affairs. The practical effects of that power to amend the Constitution and of that legislative power which the Constitution confers are that, whatever be the theoretical explanation, ultimate authority in this country lies with the Australian people and that, subject to the Constitution and to the State Constitutions which it protects, the Commonwealth Parliament possesses legislative competence to preclude or exclude from Australia and from Australian law the direct operation of the laws, executive actions and judicial decisions of any other country including the United Kingdom.
38. It should be mentioned that it was argued that the Statute of Westminster Adoption Act 1942 (Cth) was invalid to the extent to which the Statute of Westminster would operate to confer upon the Parliament of the Commonwealth an independent head of legislative power other than those heads of legislative power conferred upon it by the Constitution. The basis of that argument was the proposition that the provision in s.8 of the Statute of Westminster that nothing in the Statute should be deemed to confer any power to repeal or alter the Constitution precluded the enactment by the Commonwealth Parliament of a law adopting ss.2,3,4,5 and 6 of the Statute if the effect of that adoption would be to alter the Constitution by conferring upon the Commonwealth Parliament a head of legislative power in addition to those contained in the Constitution itself. The simple answer to the proposition is that the power to adopt those sections of the Statute was plainly conferred upon the Commonwealth Parliament by the Statute and that, when adopted, the Statute of Westminster itself, not the Statute of Westminster Adoption Act, confers the additional legislative power upon the Commonwealth Parliament.
39. Paragraph 4 of the defendant's Notice of Grounds of Defence should be struck out.
DAWSON J. The plaintiff fell and suffered injury whilst on a pleasure cruise on Sydney Harbour aboard the defendant's vessel. She sued the defendant in the District Court of New South Wales for damages for negligence and breach of contract. The defendant in its Notice of Grounds of Defence indicated its reliance upon s.503 of the Merchant Shipping Act 1894 (Imp.) which limits the liability of the owner of a ship to damages for injury to any person being carried in the ship to an amount not exceeding fifteen pounds sterling for each ton of the ship's tonnage. There is no dispute that the defendant's vessel is a ship within the meaning of s.503 and its tonnage is alleged to be 282.68 tons.
2. Section 503 of the Merchant Shipping Act appears in Pt VIII of that Act which, under s.509, extends to the whole of Her Majesty's Dominions. Section 104(3) of the Navigation Amendment Act 1979 (Cth) purports to repeal Pt VIII. The extent of the repeal is limited by s.103 which defines the Merchant Shipping Act for the purposes of Pt VIII as " ... the Imperial Act known as the Merchant Shipping Act 1894, as amended, or otherwise affected in its operation, by the provisions of any other Imperial Act or of any Act, in so far as that Act as so amended, or otherwise affected in its operation, is part of the law of the Commonwealth." The limit is so expressed because of s.2(2) of the Statute of Westminster 1931 (Imp.) which provides, amongst other things, that the powers of the Parliament of a Dominion shall include the power to repeal an Act of the Parliament of the United Kingdom " ... in so far as the same is part of the law of the Dominion." The definition of "Dominion" in s.1 of the Statute of Westminster includes the Commonwealth of Australia.
3. The plaintiff filed a Notice of Motion in the District Court seeking to strike out that paragraph of the Grounds of Defence in which the defendant indicated its reliance upon s.503 of the Merchant Shipping Act. It was contended by the plaintiff that s.104(3) of the Navigation Amendment Act does not upon its true construction purport to repeal s.503 of the Merchant Shipping Act in so far as the latter section is part of the law of New South Wales and that if it does, it exceeds the powers of the Commonwealth.
4. Upon the application of the Commonwealth an order was made pursuant to s.40(1) of the Judiciary Act 1903 (Cth) removing into this Court so much of the cause pending in the District Court as involves the validity of the repeal of s.503 of the Merchant Shipping Act by s.104(3) of the Navigation Amendment Act.
5. There can be no doubt that, apart from the effect of s.104(3) of the Navigation Amendment Act, s.503 of the Merchant Shipping Act forms part of the law of the State of New South Wales and of the other States of the Commonwealth: China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172; Southern Centre of Theosophy Inc. v. South Australia [1979] HCA 59; [1979] HCA 59; (1979) 145 CLR 246. The extent to which it is also part of the law of the Commonwealth within the meaning of s.103 of the Navigation Amendment Act or part of the law of the Dominion within the meaning of s.2(2) of the Statute of Westminster is a question which falls to be determined in this case. It is, I think, plain enough that it is the one question because it is evident that in seeking to repeal Pt VIII of the Merchant Shipping Act only to the extent that it is part of the law of the Commonwealth, which is the combined effect of ss.103 and 104(3) of the Navigation Amendment Act, the legislature acted in reliance upon s.2(2) of the Statute of Westminster and the phrase "part of the law of the Commonwealth" in s.103 of the Navigation Amendment Act must bear the same meaning as the phrase "part of the law of the Dominion" in s.2(2) of the Statute of Westminster in its application to Australia.
6. It is convenient, therefore, to turn immediately to s.2(2) of the Statute
of Westminster and, in particular, to the words which
allow the Parliament of
a Dominion to repeal or amend an Act
of the United Kingdom Parliament in so
far as the same is part of the
law of the Dominion. It is important, however,
for reasons
which will appear, to have regard to the whole of s.2, which
provides:
(1) The Colonial Laws Validity Act, 1865, shall
not apply to any law made after the commencement of
this Act by the Parliament of a Dominion.
(2) No law and no provision of any law made after
the commencement of this Act by the Parliament of a
Dominion shall be void or inoperative on the ground
that it is repugnant to the law of England, or to
the provisions of any existing or future Act of
Parliament of the United Kingdom, or to any order,
rule or regulation made under any such Act, and the
powers of the Parliament of a Dominion shall
include the power to repeal or amend any such Act,
order, rule or regulation in so far as the same is
part of the law of the Dominion."
7. The long title of the Statute of Westminster is "An Act to give effect to
certain resolutions passed by Imperial Conferences
held in the years 1926 and
1930." Apart from the long title, it is, in my view, clearly permissible in
construing the Statute to
have regard to the reports of the Imperial
Conferences and to the report of the Conference on the Operation of Dominion
Legislation
and Merchant Shipping Legislation 1929, the recommendations of
which were very largely accepted by the 1930 Imperial Conference.
The reports
give a clear indication of the purposes of the Statute and of the matters
which were thought to require legislative
attention in order to secure the
constitutional relationship between the Dominions and the United Kingdom which
was declared to have
been reached. These are relevant considerations in the
interpretation of the Statute. See Black-Clawson Ltd. v. Papierwerke A.G.
[1975] UKHL 2;
(1975) AC 591, at pp 614, 629, 638; Wacal Developments Pty. Ltd. v. Realty
Developments Pty. Ltd.
[1978] HCA 30; (1978) 140 CLR 503, at pp 509,
521, 523; and see the
discussion by Mason J. in Wacando v. The Commonwealth of Australia and the
State of Queensland [1981] HCA 60; (1982) 56 ALJR
16, at p 25. The long title of the Statute
and the first paragraph of the preamble serve to confirm
that the reports
of
the Conferences
are the repository of the appropriate material to reveal those
aspects of the existing law which
failed to reflect
the constitutional
position as it had developed.
8. Moreover, the Conferences themselves are part of the history of the
progress of former British colonies towards full international
personality and
can hardly be disregarded in any consideration of that development. The
Balfour Declaration, which was adopted by
the 1926 Conference, gave
recognition to the fact that each of the Dominions was now the master of its
own destiny. It declared
that:
"They are autonomous Communities within the BritishThe 1926 Conference pointed to the need to consider the competence of each of the Dominion Parliaments to give extra-territorial operation to its legislation where such operation was ancillary to provision for the peace, order and good government of the Dominion and the need to consider the principles embodied in or underlying the Colonial Laws Validity Act 1865 (Imp.). These matters were referred to a sub-conference, the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation 1929.
Empire, equal in status, in no way subordinate one
to another in any aspect of their domestic or
external affairs, though united by a common
allegiance to the Crown, and freely associated as
members of the British Commonwealth of Nations."
9. The reference to the Colonial Laws Validity Act was a reference to the
repugnancy provisions of that Act, which are as follows:
"2. Any colonial law which is or shall be in any
respect repugnant to the provisions of any Act of
Parliament extending to the colony to which such
law may relate, or repugnant to any order or
regulation made under authority of such Act of
Parliament, or having in the colony the force and
effect of such Act, shall be read subject to such
Act, order, or regulation, and shall, to the extent
of such repugnancy, but not otherwise, be and
remain absolutely void and inoperative.
3. No colonial law shall be or be deemed to haveDespite the appearance of positive restriction in s.2, the two sections, ss. 2 and 3, were intended to declare the law in a narrower form than was thought in some quarters to be the position at common law. The history is conveniently set out in the report of the 1929 Conference. The theory had been held from an early stage of colonial development that there was a common law rule that legislation by a colonial legislature was void if repugnant to the law of England. The assumption was that the rule went beyond mere repugnancy to Imperial legislation and that there were fundamental principles which no colonial law could violate, but the limits of the doctrine were far from clear. It was given an extensive application in the Colony of South Australia by Boothby J. and this led to an examination of the situation by the Law Officers of the Crown in England. See Campbell, "Colonial Legislation and the Laws of England", University of Tasmania Law Review, vol.2 (1965), 148, at pp.173-175. If the wide view had been allowed to prevail, it would have greatly restricted the powers of colonial legislatures and rendered illusory their freedom from external political control. The Law Officers did not embrace the wide doctrine but found the test of repugnancy to be so vague as to require legislative definition of its scope. It was as a result of their advice that the Colonial Laws Validity Act was passed. Although, as I have said, it may appear from ss.2 and 3 of that Act that the intention behind the legislation was to restrict the powers of colonial legislatures, it was in fact to remove restrictions which might otherwise have been thought to exist and the actual effect of the legislation may have been to extend their powers. Nevertheless, it is true that the doctrine of repugnancy was recognized, albeit in a more limited way, and was given a statutory form.
been void or inoperative on the ground of
repugnancy to the law of England, unless the same
shall be repugnant to the provisions of some such
Act of Parliament, order, or regulation as
aforesaid."
10. It is important, I think, to appreciate the historical setting of the
Colonial Laws Validity Act when attempting to construe
s.2 of the Statute of
Westminster. That section, the wording of which follows the draft of the
Conference on the Operation of Dominion
Legislation and Merchant Shipping
Legislation, was the result of a recommendation of that body in these terms:
"We think it necessary, however, that there shouldThat was the reason for s.2(2) of the Statute of Westminster. It was to ensure that the wider doctrine of repugnancy, which had been restricted by the Colonial Laws Validity Act, should not be revived in its application to the Dominion Parliaments when, under s.2(1) of the Statute, that Act ceased to apply to them. Section 2 of the Statute of Westminster is concerned with the doctrine of repugnancy and the history of the Statute contains not the slightest suggestion that its purpose was to extend the existing powers of the Dominion Parliaments except in so far as those powers might be hampered by that doctrine. That is to be expected because the question of invalidity by reason of the doctrine of repugnancy could only have arisen in relation to the legislation of a Dominion Parliament when the law in question was otherwise a valid law within the powers of that Parliament.
also be a substantive enactment declaring the
powers of the Parliament of a Dominion, lest a
simple repeal of the Colonial Laws Validity
Act might be held to have restored the old common
law doctrine."
11. To acknowledge as much does not, however, remove the task of construing
the words of s.2(2) of the Statute of Westminster and,
in particular, the
troublesome last clause of that sub-section:
" ... and the powers of the Parliament of aThe words "part of the law of the Dominion", standing by themselves, are ambiguous. The term "the Dominion" or, what is meant by that word in the present context, the term "the Commonwealth of Australia", can be used in a political sense to describe the whole of the Australian body politic established under the Constitution so as to embrace all of its constituent elements. It is in this sense that the covering cl.3 of the Commonwealth of Australia Constitution Act 1900 speaks of the people of the colonies being united in a "Federal Commonwealth under the name of the Commonwealth of Australia". The term "Commonwealth of Australia" can also be used in a territorial sense to describe the geographical area of the states and territories of Australia, although this may be merely to refer to one aspect of the body politic. Thus, covering cl.5 refers to "the people of every State and of every part of the Commonwealth" and s.95 of the Constitution itself speaks of "the limits of the Commonwealth" in a plainly geographical sense. Then again, reference to the Commonwealth may be to the central governing organs of the nation in contrast to the governing organs of the several states. It is thus that one speaks of the legislative, executive or judicial power of the Commonwealth. See Constitution, ss. 51, 61 and 71.
Dominion shall include the power to repeal or amend
any such Act, order, rule or regulation in so far
as the same is part of the law of the Dominion".
12. The phrase "part of the law of the Dominion" in s.2(2) of the Statute of Westminster would remain ambiguous were it not for the evident purpose of the section and the context in which those words appear. The word "Dominion" is used in more than one sense in the Statute itself (cf. ss.4, 10 and 11) and the words "part of the law of the Dominion" standing alone may mean the law in force in the territory constituting the Dominion or the law falling within the province of the Dominion Parliament. See Dixon, "The Statute of Westminster 1931", A.L.J. Supplement, vol.10 (1936), 96, at p.101. But the purpose of the section is, in the light of the reports of the Imperial Conferences, not to enlarge the ambit of Dominion power but to remove the fetter that repugnancy had previously imposed and the words of the section are consistent with that aim. Thus the words "and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion" are added for the purpose of elucidating the words which precede them and not for the purpose of conferring additional power.
13. This is consistent with the purpose of the section and it is a construction which is required by the words "and the powers of the Parliament of a Dominion shall include". Those words are inapt to extend the subject matter of legislative powers. They do not suggest an intention to give powers to the Dominion Parliaments in addition to the powers which they already had. They are words which are appropriate to the strengthening of existing powers rather than the addition of new powers. It is entirely in accordance with the purpose of the legislation that the Dominions should, in the exercise of the legislative powers conferred upon them by their respective constitutions, be able to repeal or amend Imperial legislation. It is quite inconsistent with that purpose that s.2(2) of the Statute should be so construed as to extend the powers of Dominion Parliaments operating within a federal system to subject matters not contemplated by their own constitutions. Upon the wider construction, not only would the Commonwealth be given power to repeal Imperial legislation in areas where it could not provide legislation of its own to take its place, but it could amend Imperial legislation without any limit provided by the legislative powers confided to it under the Constitution and without any limit at all unless some impliction were read into the section confining the power of amendment to the subject matter of the Imperial legislation to be amended. Such an implication could not be made without difficulty and would give to the section at best an uncertain operation.
14. It hardly needs to be added that the phrase "part of the law of that Dominion" in s.4 of the Statute may be given a different meaning from that borne by the similar phrase in s.2(2). That is because s.4 deals with a different matter and is differently worded so as to indicate the different sense in which the phrase is there used. Moreover, it appears from the report of the Imperial Conference of 1930, at p.18, that the phrase was to perform a quite different function from the similar phrase in s.2(2). In s.4 the phrase was used in the sense of the law of the land in order to distinguish that law from those laws to which the courts of a country will give recognition under the rules of international law. And again, the possibility of an ambiguity was recognized and s.9(2) of the Statute was included to ensure that the existing constitutional practice would be continued under which the concurrence of the Parliament or Government of the Commonwealth was not required for Imperial laws extending to the States upon matters within their authority and not within the authority of the Commonwealth.
15. If the purpose of s.2 of the Statute of Westminster was to remove a restriction upon the legislative powers of Dominion Parliaments rather than to enlarge the ambit of those powers - and that plainly is the case - then, with the greatest of respect to those who think otherwise, it is to my mind quite mistaken to give to sub-s.(2) of that section a construction which disregards that purpose and which is required neither by the words themselves nor the context in which they are to be found.
16. It is possible to reach this conclusion upon the construction of s.2
without regard to ss.8 and 9(1) of the Statute of Westminster. Those
provisions state:
"8. Nothing in this Act shall be deemed to confer
any power to repeal or alter the Constitution or
the Constitution Act of the Commonwealth of
Australia or the Constitution Act of the Dominion
of New Zealand otherwise than in accordance with
the law existing before the commencement of this
Act.
9(1). Nothing in this Act shall be deemed to
authorize the Parliament of the Commonwealth of
Australia to make laws on any matter within the
authority of the States of Australia, not being a
matter within the authority of the Parliament or
Government of the Commonwealth of Australia."
17. Upon the construction of s.2 which I consider to be the correct one,
these provisions would be unnecessary to ensure that there
was no enlargement
of Commonwealth power beyond the removal of the doctrine of repugnancy.
However, it is obvious that it was felt
desirable to make explicit the
intention behind the legislation in order to quell the doubts or fears of
those who thought that s.2
might receive a construction which increased the
ambit of Commonwealth legislative power in addition to removing the fetter
which
the doctrine of repugnancy constituted. But it would be quite wrong, I
think, to draw from the presence of s.8 and s.9(1) the conclusion
that s.2
must be given a wider construction than its words require in order to give the
later sections some work to do. To do so
would be to reason that s.2 must be
so construed as to produce a result which ss.8 and 9 make it plain the
legislature did not intend.
However, upon the assumption that s.9(1) does cut
down the operation which s.2 would otherwise have, it is necessary to examine
the
effect of that provision in this case. Before doing so, it is convenient
to consider two decisions of the Privy Council which may
be thought to have
some bearing upon the meaning of s.2(2) of the Statute.
18. The first is British Coal Corporation v. The King (1935) AC 500. In that case, the Privy Council upheld the validity of a Canadian statute which abolished appeals in criminal cases to the Privy Council, including appeals by special leave. A similar provision had been held invalid by the Judicial Committee in Nadan v. The King (1926) AC 482 because, as their Lordships held, it was repugnant to the Judicial Committee Acts of 1833 and 1844 and was void both under the Colonial Laws Validity Act and because it could only be effective if it were construed as having an extraterritorial operation. In the meantime, the Statute of Westminster had removed both of these difficulties and consequently the provision in question was now validly enacted. But the source of the power to enact the provision could not be the Statute and was found in s.91 of the British North America Act 1867 which gave to the Canadian legislature power to legislate in relation to criminal law and procedure in criminal matters. The decision in British Coal Corporation v. The King is, therefore, entirely consistent with the view I have expressed of the effect of s.2(2) of the Statute of Westminster.
19. The second decision is that of Moore v. Attorney-General for the Irish Free State (1935) AC 484 and it must be conceded that that decision poses more of a problem for the view that s.2(2) of the Statute of Westminster does not constitute an independent grant of legislative power. However, a careful reading of the decision reveals that the Judicial Committee did not give any real consideration to that view. The case concerned the power of the legislature of the Irish Free State to amend the Constitution of that Dominion in order to terminate the right of appeal to the Privy Council. The argument was put, and rejected, that the Irish Constitution derived its existence from an Irish body, the Constituent Assembly, which passed the Constituent Act containing the Constitution. The abolition of appeals to the Privy Council required amendment of the Constituent Act but, it was argued, this could only be done by the Constituent Assembly, which had gone out of existence or, perhaps, by a new Constituent Assembly called together for the purpose.
20. The Judicial Committee was of the contrary view that the Constitution derived its existence from two Acts of the Imperial Parliament. The first was the Irish Free State (Agreement) Act 1922 which gave force of law to a treaty between Great Britain and Ireland providing for a Constituent Assembly to settle a Constitution for the Irish Free State. The second Imperial Act was the Irish Free State Constitution Act 1922, which provided for the Constitution set forth in the First Schedule to the Constituent Act to come into operation at a specified time. Having decided that the Constitution derived from these Imperial Statutes, the Judicial Committee appears to have assumed, rather than decided, that the Irish legislature, the Oireachtas, had power to amend the Constitution in the absence of any doctrine of repugnancy. The doctrine of repugnancy had, of course, been abolished for the Irish Free State, which was a Dominion within the meaning of the Statute of Westminster.
21. It is an unsatisfactory decision because their Lordships did not address
themselves to the question whether the power to amend
the Constitution, apart
from the fetter of repugnancy, came from the Statute of Westminster or from
some other source and, if it came from some other
source (which in the
circumstances could only have been the Constitution), whether it was given
subject to any restriction. That question may in turn have raised the further
question of the effect to be
given to the absence, in the case of the Irish
Free State, of any express denial of a power to repeal or alter the
Constitution, such as is to be found in the case of Canada, Australia and New
Zealand in ss.7(1) and 8 of the Statute. But the matter is left in the air as
the following passages at pp.497-498 show:
"The Irish Free State is in their Lordships'
judgment bound by the Acts of the Imperial
Parliament in the same way as any other of the
Dominions; if it were not for s.2 of the Statute
the Oireachtas would have had no power to amend or
repeal an Act of the Imperial Parliament and has
now such power only so far as any such Act is part
of the law of the Dominion in virtue of s.2 of the
Statute. ... But as what the Oireachtas was doing
was in truth, as already stated, the repealing or
amending of parts of an Imperial Statute, namely,
the Irish Free State Constitution Act, 1922, what
the Oireachas did must, in their Lordships'
judgment, be deemed to have been done in the way in
which alone it could legally be done, that is by
virtue of the powers given by the Statute."
22. Plainly, their Lordships did not separate the question of power derived
from the removal of Imperial paramountcy and the question
of power otherwise
existing to pass the amending legislation. This is shown by par.(3.) of the
summary of reasons on p.498, which
is as follows:
"The effect of the Statute of Westminster was
to remove the fetter which lay upon the Irish Free
State Legislature by reason of the Colonial Laws
Validity Act. That Legislature can now pass Acts
repugnant to an Imperial Act. In this case they
have done so."
23. The decision cannot, therefore, be taken as determining whether the scope
of s.2(2) of the Statute of Westminster is such as
to enlarge the ambit of
powers of a Dominion Parliament rather than to remove a fetter. This is the
more so when it is borne in
mind that in Moore v. Attorney-General for the
Irish Free State the Privy Council was not dealing with a federation but with
a unitary
state. In a Dominion with a federal constitution the consequence of
a construction of s.2(2) which would make that sub-section an
independent
source of legislative power would be to disturb the federal balance otherwise
fixed by the constitution and to determine
a matter of high constitutional
importance. There is no suggestion that this was in any way present in the
minds of their Lordships
in Moore v. Attorney-General for the Irish Free State
any more than there is any hint in the deliberations of the Imperial
Conferences
that such was a purpose of the Statute. Indeed, every indication
is to the contrary. It is not to be supposed that it was intended
that a
consequence of such significance was to be achieved by what is at best an
ambiguity.
24. Returning to s.9(1) of the Statute of Westminster, it is to be observed that the sub-section denies authority to the Parliament of the Commonwealth "to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia." The word "matter" here means "subject matter" and the subject matter of a law which repeals another law is not in anything but the most artificial and restricted sense the repeal itself. The subject matter of a repealing enactment is the subject matter of the law repealed for it is with respect to that subject matter that the repealing enactment effects a change. Thus, to the extent that the Navigation Amendment Act effects a repeal of Pt VIII of the Merchant Shipping Act, it is dealing with a law on the matter of the liability of ship owners, that being the subject matter of that Part. The question then becomes whether that is a subject matter within the authority of the States not being within the authority of the Commonwealth.
25. Under s.735(1) of the Merchant Shipping Act, the legislature of a British possession is empowered to repeal, wholly or in part, any provisions of the Act. Any such repeal is subject to confirmation by Her Majesty in Council and does not take effect until the approval of Her Majesty has been proclaimed in the possession. Section 736 of the Merchant Shipping Act provides that the legislature of a British possession may regulate the coasting trade of that British possession, but the legislation must contain a clause suspending its operation until Her Majesty's pleasure thereon has been publicly signified in that British possession. Under s.5 of the Statute of Westminster, ss.735 and 736 of the Merchant Shipping Act are to be construed as if the reference in those sections to the legislature of a British possession does not include reference to the Parliament of a Dominion. This has the effect of displacing anything to the contrary in s.18(2) of the Interpretation Act 1889 (Imp.) and it is clear that ss.735 and 736 refer to the legislatures of the States, each of them being the legislature of a British possession. Of course, the Dominion Parliaments, including the Commonwealth Parliament, no longer have any need of the relief afforded by ss.735 and 736 from the effect of the doctrine of repugnancy so far as the Merchant Shipping Act was concerned. Complete relief was afforded by s.2 of the Statute of Westminster and s.5 was intended to remove any doubt about that. But ss.735 and 736 continue in their application to the States and the effect of s.735 is to authorize State legislatures to repeal the provisions of the Merchant Shipping Act (excluding Pt III which is not relevant for present purposes) relating to ships registered in the State.
26. The States of New South Wales, Queensland and Western Australia, appearing by intervention, submitted that the matters dealt with by ss.735 and 736 were, for the purposes of s.9(1) of the Statute of Westminster, within the authority of the States of Australia and, to the extent that they included ships not falling within the power of the Commonwealth to make laws with respect to trade and commerce among the States, including interstate navigation and shipping (Constitution, ss.51(i) and 98), or the power to make laws with respect to external affairs (Constitution, s.51(xxix)), they were not matters within the authority of the Parliament or Government of the Commonwealth. This submission was made upon the basis of a number of assumptions. Section 735 of the Merchant Shipping Act deals only with the repeal of provisions relating to ships registered in the relevant possession and s.736 deals only with the regulation of the coasting trade. It was assumed for the purposes of argument that the vessel in this case was registered in New South Wales and operated only upon internal waters so that it was not engaged in interstate trade or commerce. The possibility that the vessel was engaged in the coasting trade also seems to have been assumed. All of these matters raise questions of fact which may ultimately have to be determined, but it is convenient in this judgment to proceed upon the same assumptions.
27. What was submitted by the Commonwealth, which also appeared by intervention, was, first, that the requirement that legislation under ss.735 and 736 be respectively confirmed by Her Majesty in Council and suspended until the signification of Her Majesty's pleasure was such that the matters dealt with by those sections were not placed within the authority of the States within the meaning of s.9(1) of the Statute of Westminster and, secondly, that s.735 has no application in the States since the Shipping Registration Act 1981 (Cth) came into force.
28. Both of those submissions may, I think, be answered shortly. The fact that both s.735 and s.736 of the Merchant Shipping Act require Royal assent or confirmation to be given or signified in a particular manner does not, in my view, detract in any way from the authority of the States which is confided to them by those sections. That authority is an authority to legislate upon the matters referred to in those sections and the fact that the exercise of the authority has to be carried out in a particular manner is hardly to deny the authority. Royal assent is part of the legislative process and the Crown has at all times been and remains the legislative head of the State legislatures. True it is that in exercising the power of assent under ss.735 and 736, whether in the form of confirmation, approval or the signification of Her Majesty's pleasure, the Crown would be acting on the advice of Her Majesty's United Kingdom Government, but that does not mean that the assent is any the less part of the legislative process. The power of the Queen to disallow legislation may be seen in both the Constitutions of the States and of the Commonwealth. The fact that at least in the case of the Commonwealth (see Constitution, ss.58 and 59), the power is now exercisable only upon the advice of the Queen's Commonwealth Ministers and is hence for all practical purposes a dead letter, is a matter of convention rather than constitutional theory and it must be recognized that at its inception that power was exercisable upon the advice of the Queen's United Kingdom Ministers. See Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929, p.11. It could not be suggested that the statutory power of disallowance to be found in the Commonwealth Constitution itself in any way diminishes the authority of the Commonwealth Parliament over the matters with respect to which it may make laws any more than the requirement in ss.735 and 736 of the Merchant Shipping Act that Royal assent or confirmation be given in a particular manner diminishes the authority of the State legislatures over the matters with which those sections deal.
29. The answer to the submission that the Shipping Registration Act 1981 (Cth) precludes the operation of s.735 of the Merchant Shipping Act in this case may be made even more shortly. The Shipping Registration Act was not passed until after the enactment of the Navigation Amendment Act 1979 (Cth) and the extent to which s.104(3) of that Act repeals Pt VIII of the Merchant Shipping Act cannot be affected by the operation of another Act which was not in existence at the time the Navigation Amendment Act came into force. The question of the authority of the States and of the Commonwealth in relation to the matter dealt with by s.735 falls to be determined at that time. That is not to concede or deny the validity of the Commonwealth submission so far as the scope of the Shipping Registration Act is concerned. It is merely to say that the questions which that submission raises have no application in this case.
30. The final submission made by the Commonwealth is that s.104(3) of the Navigation Amendment Act is a valid law of the Commonwealth with respect to external affairs within the meaning of s.51(xxix) of the Constitution. Upon the view which I have taken of the proper construction of s.104(3), reliance upon the external affairs power does not carry the Commonwealth's case any further. The repeal effected by that sub-section extends, by reason of s.103, to the Merchant Shipping Act only in so far as that Act is part of the law of the Commonwealth. Since, as I have concluded, the expression "part of the law of the Commonwealth" in s.103 must bear the same meaning for present purposes as the expression "part of the law of the Dominions" in s.2(2) of the Statute of Westminster, the repeal effected by s.104(3) of the Navigation Amendment Act stops short of Pt VIII of the Merchant Shipping Act in so far as that Part forms part of the law of the States. But it is desirable nevertheless that I should express my view upon whether reliance might be placed upon the external affairs power to support the repeal by the Commonwealth of Pt VIII of the Merchant Shipping Act in so far as that Part forms part of the law of the States.
31. In my view, the external affairs power would not support such a repeal.
In China Ocean Shipping Co. v. South Australia, at pp
194-195, Gibbs J. dealt
with the way in which Pt VIII of the Merchant Shipping Act became part of the
law of the Australian colonies:
"When Pt VIII of the Act of 1894, upon itsSee also Barwick C.J. at pp.181-182; Stephen J. at p.214; Aickin J. at p.240.
enactment, became part of the law of South
Australia and of the other Australian colonies, the
provisions of that Part did not occupy a separate
and exceptional position. They became part of the
whole body of the law by which the colony was
governed. They were just as much a part of the law
of the colony as the principles of common law and
equity, the statute law of England enacted before
the colony was settled, and the enactments of the
colonial legislature. They would remain part of
the law until they were repealed or amended by a
legislative body which had power to affect them.
The Parliament of the United Kingdom had such
power, but the legislature of the colony had only
the limited powers conferred by ss.735 and 736 of
the Act of 1894."
32. Part VIII of the Merchant Shipping Act continued as part of the law of the States when they replaced the colonies.
33. The argument put by the Commonwealth did not deny that Pt VIII of the Merchant Shipping Act, apart from the purported repeal of that Part, forms part of the law of the States. What was put was that the limitation on liability imposed by s.503 of the Merchant Shipping Act, to the extent that it remains in force, prevents the implementation of the International Convention relating to the limitation of the liability of owners of sea-going ships. This argument, in my view, lacks substance. It may be conceded that a law implementing the Convention in question would be a law with respect to external affairs. Section 65 of the Navigation Act is such a law. It substitutes for Pt VIII of the Navigation Act 1912 (Cth) (which deals with the limitation of liability in respect of government ships) a new Pt VIII containing s.333 which provides that the provisions of the Convention shall have the force of law as part of the law of the Commonwealth. Apart from the question of the purported express repeal of Pt VIII of the Merchant Shipping Act, there would, by virtue of s.65 of the Navigation Amendment Act, be an implied repeal of those parts of Pt VIII which could not stand together with the provisions of the Convention. But the provisions of the Convention are not coextensive with the provisions of Pt VIII of the Merchant Shipping Act and, in particular, s.503 of that Act. To the extent that the repeal which s.104(3) of the Navigation Amendment Act purports to make extends beyond those matters covered by the Convention, then it cannot be supported by reliance upon the external affairs power.
34. And s.104(3), in purporting to repeal Pt VIII of the Merchant Shipping Act, does extend beyond the matters covered by the Convention because the Convention is limited in its application to sea-going ships. Section 503 of the Merchant Shipping Act, on the other hand, extends to the owners of a ship, British or foreign, whether or not it is a sea-going ship. "Ship" is defined in s.742 of the Merchant Shipping Act to include "every description of vessel used in navigation not propelled by oars" and "vessel" includes "any ship or boat, or other description of vessel used in navigation not propelled by oars." Clearly, vessels used only upon internal waters are ships within the meaning of s.742 and fall within s.503 of the Merchant Shipping Act but are not sea-going ships and do not fall within the provisions of the Convention. Upon the assumption that the vessel in this case was not a sea-going ship, the provisions of the Convention would not apply to it but s.503 of the Merchant Shipping Act would. The external affairs power cannot, in my view, support any repeal of Pt VIII of the Merchant Shipping Act which goes beyond the matters dealt with by the Convention.
35. Another argument, not advanced by the Commonwealth, must nevertheless be dealt with. It is that a law of the Commonwealth Parliament which repeals an Imperial statute applying in Australia is a law with respect to external affairs. The argument, as I understand it, asserts that the supremacy of the Imperial Parliament as a matter of constitutional practice has ceased to exist and that, as a consequence, an Imperial statute applying here represents an intrusion into the domestic law of this country from an external source. Upon that basis, it is said that a law effecting the repeal, or even the amendment, of the statute is a law made with respect to an external affair.
36. The argument will not, in my view, stand examination. In the first place, the supremacy of the Imperial Parliament as a matter of constitutional theory and, in a much modified way, as a matter of constitutional practice, still remains an important part of our legal system. Not only does the Constitution of this country derive its authority from an Act of the Imperial Parliament but the Statute of Westminster itself is reliant upon the power of that Parliament for its operation. The removal by the Statute of Westminster of the doctrine of repugnancy so far as the Commonwealth is concerned constitutes a modification of the supremacy of that legislature as does, at least upon one view, the prohibition by s.4 of the Statute of Imperial legislation extending to a Dominion except at the request, and with the consent, of that Dominion. But the doctrine of repugnancy - a doctrine which lies at the heart of Imperial supremacy - remains for the States of Australia, unlike the Provinces of Canada to which the Statute of Westminster applies by virtue of s.7(2). Moreover, s.4 of the Statute in seeking to limit the exercise of Imperial legislative power is predicated upon its continued existence.
37. Underlying the Statute of Westminster is the concept, basic to our institutions of government, that those members of the Commonwealth of Nations continuing under the Crown are subject to the ultimate legislative authority of the Queen in Parliament. That is not to deny the possibility of the abandonment of the supremacy of that legislature at some time, but such an occurrence would still involve a basic change in constitutional theory and practice and that change demonstrably has not yet occurred.
38. Even if it could be said that the power of the Imperial Parliament no longer extends to this country, it hardly follows that Acts of that legislature which form part of our law represent an intrusion from an external source. It may be conceded that the relations of this country with the United Kingdom may constitute an external affair and the reference in s.51(xxix) of the Constitution to external rather than foreign affairs is intended to embrace those relations. But that does not mean that the Imperial Parliament itself or its legislation applying in this country constitutes an external affair. The exercise of Imperial legislative power was the exercise of a power forming part of the local legal system of the colony, State or Commonwealth of Australia, as the case may be. The resulting law applied and, to the extent it remains part of the law of the States, applies by paramount force. There is no element of externality about either the law or its source.
39. There is, however, a simpler answer to this argument. It lies in the proposition to which I have already adverted. A law which effects the repeal of another law is not a law with respect to repeal; its subject matter is the subject matter of the law which is repealed. Moreover, even if it could be said that, after the repeal of an Imperial Statute, the Imperial Parliament would have power only with the concurrence of the Commonwealth to pass a law applying in this country upon the subject matter of the repealed legislation, that would be a consequence of the repeal and not the subject matter of the repealing Act. Thus, even if it could be said, contrary to the view which I have expressed, that the powers of the Imperial Parliament are an external affair, the repealing Act would not be a law with respect to those powers and hence a law with respect to external affairs.
40. In this case, the subject matter of the law repealing Pt VIII of the
Merchant Shipping Act is the liability of ship-owners and,
so far as ships
operating entirely in internal waters are concerned, that is not an external
affair. It does not advance the matter
to say that in Koowarta v.
Bjelke-Petersen [1982] HCA 27; (1982) 56 ALJR 625 a majority of this Court held that a law
dealing with internal affairs
may also be a law with respect to external
affairs. That may have been so in that case, but the law there was a law
dealing with
the subject of racial discrimination. It was
only a law with
respect to external affairs because it was implementing an international
convention which placed obligations upon
Australia with respect to racial
discrimination and so endowed that subject matter with
the necessary external
aspect. The subject
matter was part of our external affairs because it was
the subject matter of an international
treaty. As Mason J. said, at p.651:
"Agreement by nations to take common action inThe subject of the liability of the owners of ships operating upon internal waters is not a subject matter which has in any way been given an international character and a law repealing another law dealing with that subject matter is not a law with respect to external affairs.
pursuit of a common objective evidences the
existence of international concern and gives the
subject-matter of the treaty a character which is
international."
41. For all of these reasons, it is my view that s.104(3) of the Navigation Amendment Act does not repeal that part of Pt VIII of the Merchant Shipping Act which deals with the liability of the owners of ships operating upon internal waters. I would remit the case to the District Court of New South Wales for the determination of any questions of fact and its decision.
ORDER
Declare that Part VIII of the Merchant Shipping Act 1894(Imp.) is validly repealed in so far as it is part of the law of Australia by section 104(3) of the Navigation Amendment Act 1979 (Cth).
Strike out paragraph 4 of the Notice of Grounds ofDefence.
Remit the matter to the District Court of New SouthWales.
Order that the costs of the plaintiff and the defendantbe paid by the Attorneys-General of the States of New South Wales, Western Australia and Queensland.
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