Newcastle & Hunter River Steamship Co Ltd v Attorney-General (Cth) [1921] HCA 31; (1921) 29 CLR 357 (8 August 1921)

HIGH COURT OF AUSTRALIA

The Newcastle and Hunter River Steamship Company Limited and Others Plaintiffs; against The Attorney-General for the Commonwealth and Another Defendants.

H C of A

8 August 1921

Knox C.J., Higgins, Gavan Duffy, Powers, Rich and Starke JJ.

Sir Edward Mitchell K.C. (with him E. M. Mitchell), for the plaintiffs other than the State of Western Australia.

Broomfield K.C. (with him Milner Stephen), for the State of Western Australia.

Brissenden K.C. (with him Street), for the defendants.

Sir Edward Mitchell K.C.

Broomfield K.C. and Milner Stephen.

Keating, for the State of Tasmania intervening.

Brissenden K.C., in reply.

The Court delivered the following written judgment:—

Aug. 8

Knox C.J.,

Higgins, Gavan Duffy, Powers, Rich and Starke JJ.

This action was brought by various shipping companies against the Attorney-General and the Minister of Trade and Customs of the Commonwealth seeking declarations that various sections of the Navigation Act 1912-1920 and schedules, and regulations made under it, were invalid in so far as they purport to apply to the plaintiffs' ships mentioned in par. 2 of the statement of claim. As the statement of claim was originally framed it was alleged that these ships of the plaintiffs took on board passengers and/or cargo in a State to be carried to, landed or delivered at other ports in the same State and do not travel beyond or engage in trade beyond the limits of one State. At the hearing before us, the State of Western Australia applied to intervene for the purpose of arguing that the whole Act was invalid if the parts challenged by the plaintiffs were beyond the legislative powers of the Commonwealth. It was suggested from the Bench that the interest of the plaintiffs originally before the Court, and the allegations made in plaintiffs' statement of claim, did not warrant so extensive a field of argument. The parties then arranged, with the sanction of the Court, that the State of Western Australia should be joined as a plaintiff and that the position of some of its ships should be set forth so as to raise the ground which that State wished to argue. The statement of claim was then amended, and an allegation made that two ships of the State take on board passengers and/or cargo at ports in the said State to be carried to landed or delivered at other ports in that State and also at ports in Territories under the authority of the Commonwealth, and at ports in other countries, but the only relief claimed in respect of this allegation was the same relief as the other plaintiffs claimed in respect of their ships. In other words, the State of Western Australia said that if the Act was invalid as to ships in the position of the plaintiffs' ships then the whole of the attacked provisions of the Act were infected and totally failed. The argument on the demurrer was conducted on this basis only.

In dealing with the case, as we are, on demurrer, we must take the facts alleged in the statement of claim and the precise relief that is sought. There is no allegation that the intra-State ships are engaged or used for the purpose of inter-State or foreign trade. An intra-State vessel may be used for the purpose of inter-State or foreign trade, although it may carry goods only between ports in the same State. For instance, goods sold in Sydney for delivery in Queensland may be sent by an intra-State vessel to Byron Bay and then sent to Queensland by railroad. We cannot deal with such a case on the pleadings as they now stand.

The provisions, the validity of which are challenged, are secs. 14, 43, 44, 135, 136, 288 and 293 and Schedules I. and II. of the Act and the whole of the Navigation (Manning and Accommodation) Regulations 1921 (Statutory Rules 1921, No. 84).

The provisions of secs. 14 (1), 43, 44 and 136 in terms applied to every ship registered in Australia or engaged in the coasting trade, of sec. 135 to every steamship so registered or engaged, of secs. 288 and 293 to every ship engaged in the coasting trade, of Schedule I. to every British ship registered in Australia or engaged in the coasting trade and of Schedule II. to every British steamship registered in Australia or engaged in the coasting trade (other than a limited coast trade or river and bay ship of less than 15 tons gross registered tonnage). Speaking generally, these enactments and the regulations prescribe certain scales of manning and standards of accommodation for the ships to which they relate, prohibit any ship from engaging in the coasting trade without a licence, and impose penalties on the master or owner of any such ship for breaches of the Act or regulations.

Sec. 7 of the Act provides that "A ship shall be deemed to be engaged in the coasting trade, within the meaning of this Act, if she takes on board passengers or cargo at any port in a State, or a Territory under the authority of the Commonwealth, to be carried to, and landed or delivered at, any other port in the same State or Territory or in any other State or other such Territory." This definition is subject to provisoes which have no bearing on the question to be decided.

The ground on which the validity of the Act and Regulations is challenged is that their provisions, so far as they relate to ships not engaged in trade or commerce with other countries or among the States, are beyond the powers of the Commonwealth Parliament; or, in other words, that the Commonwealth Parliament has no power to prescribe conditions of manning and accommodation with respect to ships engaged solely in intra-State trade, or to require the owners of such ships to obtain a licence to engage in such trade. It was further argued by the States of Western Australia and Tasmania that the provisions were so interwoven together that if they were invalid as to ships engaged solely in intra-State trade they were wholly invalid.

It was not denied that the provisions attacked were intended to and, if valid, did affect ships engaged in trade wholly within the boundaries of a single State and not in any way engaged in trade or commerce with other countries or among the States. Dr. Brissenden, for the Commonwealth, contended that authority to make these enactments was to be found in sec. 51 (I.) of the Constitution, "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to trade and commerce with other countries, and among the States," read with sec. 98 of the Constitution, which provides that "The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State." No other provision of the Constitution was relied on for this purpose, and the plaintiffs did not deny that Parliament intended by some of the provisions of the Act to exercise this power. The defendants did not contend that the relief sought could not be given if the plaintiffs' view of the Constitution and of the Act is right, and we do not propose in this case to debate a point that the parties did not argue; and the matter must be considered open if ever again it arises. The Constitution does not endow Parliament with a substantive power to deal with navigation and shipping at large. It only empowers it to deal with that subject in so far as it is relevant to inter-State and foreign trade and commerce. As was said by Gavan Duffy and Rich JJ. in Australian Steamships Ltd. v. Malcolm[1], the effect of sec. 98 is to include in the power to make laws with respect to trade and commerce a power to make laws with respect to navigation and shipping ancillary or relevant to such trade and commerce. The facts stated on the record do not suggest that provisions relating to the manning of, and the accommodation on, ships engaged solely in intra-State trade are relevant or ancillary to trade and commerce with other countries or among the States. It is not enough merely to say that the intra-State ships go upon the high seas or in waters used by inter-State or foreign ships. They are not engaged in any act of inter-State or foreign trade.

Consequently, we are of opinion that the provisions of the Act and Regulations specified above, to the extent to which they purport to prescribe rules of conduct to be observed in respect of ships engaged solely in the domestic trade of a State, are beyond the power of the Commonwealth Parliament.

It was argued for the plaintiffs that if these provisions were so far invalid they were invalid for all purposes, and in support of this contention reliance was placed on the decision of this Court in Owners of s.s. Kalibia v. Wilson[2]; but the Navigation Act contains a provision, sec. 2 (2), which had no counterpart in the Act which was the subject of that decision. This section is as follows: "This Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this sub-section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." We think this provision is a legislative declaration of the intention of Parliament that, if valid and invalid provisions are found in the Act of Parliament, however interwoven together, no provision within the power of Parliament shall fail by reason of such conjunction, but the enactment shall operate on so much of its subject matter as Parliament might lawfully have dealt with. The intention and effect of the section may be illustrated by reference to sec. 135 of the Act. In terms the provisions of that section apply to the owner of every steamship registered in Australia or engaged in the coasting trade. This class of ships includes: (1) every ship registered in Australia engaged in inter-State or foreign trade; (2) every ship so registered engaged solely in intra-State trade; (3) every ship not so registered engaged in inter-State trade; (4) every ship not so registered engaged solely in intra-State trade. With respect to the ships comprised in classes 1 and 3, the Parliament has power to enact the provisions of sec. 135; with respect to those comprised in classes 2 and 4, it has no such power. The decision in the Kalibia Case proceeded on the footing that the inclusion in one collective expression in an Act of Parliament of objects as to some of which the enactment was invalid, operated to invalidate the whole enactment because it did not appear that Parliament would have imposed the rule as to some only of the class if the whole class could not be affected. The whole enactment was declared invalid in that case because it was impossible to ascertain an intention that some only of the class designated by the collective expression should be affected if the others were not. But in the present case sec. 2 (2), though its verbal expression may be open to criticism, sufficiently discloses the intention of Parliament that if all four classes of ships could not be brought under the provisions of sec. 135 those provisions should operate in respect of all ships to which they might lawfully be applied.

There is, in our opinion, nothing to prevent Parliament from legislating in this way in order to make its intention clear. Consequently, we hold that the demurrer should be overruled.

Although the statement of claim impugns the validity of the Act as a whole, it does so only on the view which we have just declared to be untenable because of sec. 2 (2), and we must not be taken as expressing any opinion on any provisions of the Act other than those which we have specifically dealt with.

Demurrer overruled. Declaration in accordance with the reasons given by the Court. Defendants to pay costs of the plaintiffs. The plaintiff shipping Companies to have only one set of costs.

Solicitors for the plaintiffs, H. de Y. Scroggie; F. L. Stow, Crown Solicitor for Western Australia.

Solicitor for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitor for the intervener, A. Banks-Smith, Crown Solicitor for Tasmania.

[1] [1914] HCA 73; 19 C.L.R., 298, at p. 335.

[2] [1910] HCA 77; 11 C.L.R., 689.