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Thursday, 31 October 1912


Senator PEARCE (Western Australia.) (Minister of Defence) . - The; Government have not the slightest doubt about the provisions of this Bill in regard to foreign trade, but our position in regard to the coasting trade isexactly opposite to that which is taken up by Senator Gould. It is well known that certain legal advisers of the Board of Trade- - not the Imperial Government - contendthat the Commonwealth has only suchpowers of legislation to override the provisions of the Merchant Shipping Act of 1894, as are given by sections 735 and 736- of that Act, and that the effect of paragraph I of section 51 and section 98 of the Constitution is simply to confer uponthe Commonwealth Parliament a power of legislation on navigation matters paramount to that of the State Parliaments. The correspondence . on this point will befound in a printed memorandum containing -the suggestions of the Board of Tradeon the Navigation Bill. The memorandum shows that the Commonwealth law officersare distinctly at variance with the Board of Trade on this point, and the- Commonwealth has never wavered in its view of its powers in this respect. ' Perhaps it may be well to- again read section 736 of the Merchant

Shipping Act-

The Legislature of a British possession may, by any Act or Ordinance,' regulate the coasting trade of that British possession, subject in every case to the following conditions : -

(a)   the Act or Ordinance shall contain a suspending clause providing that the Act or Ordinance shall not come into operation until Her Majesty's pleasure thereon has been publicly signified in the British possession in which it has been passed ;

Although the Imperial Parliament gave us power, by the section, to deal with the coasting trade, still a Bill in which we deal with the coasting trade has to be reserved until His Majesty's pleasure thereon has been made known -

(b)   the Act or Ordinance shall treat all British ships (including the ships of any other British possession) in exactly the same manner as ships of the British possession in which it is made;

(c)   where by treaty made before the passing of the Merchant Shipping (Colonial) Act,1869 (that is to say, before the thirteenth day of May, Eighteen hundred and sixty-nine), Her Majesty has agreed to grant to any ships of any foreign State any rights or privileges in respect of the coasting trade of any British possession, those rights and privileges shall be enjoyed by those ships for so long as Her Majesty has already agreed or may hereafter agree to grant the same, anything in the Act or Ordinance to the contrary notwithstanding.

Ot the three conditions enumerated in that section, two - equality of treatment to locally registered and other British ships, and the recognition of the rights of foreign countries under treaties entered into by them with Great Britain - have already been complied with in the Bill, and these are the more important. Whilst the Government in no wise concur in the contention of Senator Gould that the general power of this Parliament, in regard to shipping and navigation, is derived from the Merchant Shipping Act, and not from our Constitution, it is thought possible that the power conferred in the Merchant Shipping Act to regulate the coasting trade mav be wider, so far as that trade is concerned', than the power conferred by the Constitution -

It is thought possible that the power conferred under the Merchant Shipping Act " to regulate the coasting trade" may be wider, so far as that trade is concerned, than that conferred by the Constitution.

The latter power is limited in its application to matters affecting ships trading Inter-State or with foreign countries. The regulation of. the coasting trade, under the powers conferred by the Merchant Shipping Act, is not however, subject to any such limitation, and very possibly would be construed as giving power to control shipping engaged in trading between port and port anywhere along the coast, including trade confined within the limits of a State.

The power conferred by the Constitution no doubt gives us a certain amount of power to control Intra-State shipping, to the extent of any rate of imposing upon it obedience to such rules of the road, &c, as are necessary to ensure the safety of Inter-State and foreign-going ships using the same waters, but no more. The power to regulate " the trade would, on the other hand, imply not only this, but such matters as wages, accommodation, discipline, &c.

Under the Merchant Shipping Act the general power of regulation might give us the power to regulate all these matters.


Senator Lynch - But the exercise of that power has to receive the approval of His Majesty.


Senator PEARCE - That is so. We shall not be placed at any disadvantage in agreeing to this amendment. Rather shall we be placed at an advantage, because the wider powers which are apparently in the Act, and which are provided for in the Bill, may be by that means obtained.

Senator Sir JOSIAHSYMON (South Australia) [3.35]. - I do not see why so much apprehension should be entertained by Senator Needham, and, apparently, by Senator Guthrie, in respect to this amendment. Really the view which the Minister has put makes it quite clear that, instead of causing delay, the amendment may cause very great expedition. It may facilitate the Bill being brought into operation without any question which may require to be dealt with by a tribunal. To begin at the beginning, the whole underlying principle is that no country has the right to legislate directly in respect to any other shipping than its own. In the first instance the Imperial authorities had to legislate in respect to, not merely the shipping immediately connected with the British Isles, and trading from that centre, but what might be called Imperial shipping throughout the Dominions of the Crown. As various Colonies were established, power was given to enable them to legislate in a particular way, and within certain restrictions. Of course, the Imperial Act is, in regard to the British Dominions, a code governing all shipping flying the British flag. Then, in order to facilitate, commerce, and incidental to the creation of the selfgoverning Dominions, came the provisionsempowering colonies to legislate in a particular way within the restrictions which the- Minister has quoted. ' ' Whilst that enabled the outlying portions of the Empire to legislate in order to facilitate trade, ' it led to the possibility of legislation assuming a form which might interfere with the general law of British shipping and produce practically chaos. These restrictions were not made with the view of diminishing the self-governing power of any Dominion, nor is it intended by this amendment to cast a doubt on. the national power of the Commonwealth. It is a measure of precaution. It is to prevent the possibility of international difficulties and, it may be, .great confusion in regard to the shipping of the British Empire itself. It is a perfectly reasonable amendment. It does not call forth the condemnation which Senator Needham threw upon it, as though it were an assault upon self-government in Australia. It is nothing of the kind.


Senator Rae - It is an indication of our limitations.


Senator Sir JOSIAH SYMON - It indicates no reflection upon the national strength and capacity of our Constitution to enable us to do everything essential for our self-government. If we had power to legislate, as possibly we may have, in regard' to wages, and so forth, and we imposed our legislation upon foreign ships, we should bring about a position of international conflict in no time. It would be impossible to carry out such legislation. We can legislate about our coasting trade subject to limitations, but we cannot impose our standard of. wages and accommodation upon foreign ships.


Senator Guthrie - New Zealand has done it for the last ten years, and there has been no complication.


Senator Pearce - Only when foreign ships take part in the New Zealand trade, and in this Bill we are doing the same thing.


Senator Sir JOSIAH SYMON - Suppose that the advice of the law advisers of the Board of Trade is correct, what would be the result if the Bill were passed without this amendment.? We might have the Bill tied up by an appeal to the High Court, in order to determine its validity or otherwise.


Senator Rae - Will the amendment get over that?


Senator Sir JOSIAH SYMON - It will get over it to the extent that it cannot be said that we have not complied with the provisions of the Merchant Shipping Act. Our authority to legislate is derived from the Constitution, which is an Imperial Act. We must legislate within the Constitution, and no approval of -His Majesty can make that valid which does not come within the authority given to us by the Constitutionor the Merchant Shipping- Act. But there is a limitation. Under the Merchant Shipping Act, if that is our authority for any legislation, we have to get the approval of His Majesty before the Bill can come into operation. This is a salutary amendment, which, instead of causing delay, may save 1 great deal of litigation and delay. At any rate, it anticipates an objection which may be made by the Imperial authorities, and which it is just as well to meet beforehand.

Senator GUTHRIE(South Australia)

C3-47]- - I think that the arguments of Senator Symon have a little weight. In the Constitution, the Imperial authorities gave us absolute power over all British ships which have a port of entrance and a port of clearance within the Commonwealth. Why should. we reserve the Bill for the King's assent? Is it intended to ask the Board of Trade - the most Conservative institution in Great Britain, as has been lately shown by the Titanic inquiry - to deal with matters over which the Constitution gives us full power?" I recognise, of course, that it is another matter when we deal with foreign ships. I asked Senator Gould to cite a provision in the Bill' dealing with foreign ships -which were not engaged in the Commonwealth trade, but he could not do so.. Unless a' ship goes- into the Commonwealth trade, the Bill will not affect her. A ship coming here from England will not be subject to our survey or manning scale or food scale ; in fact, to any of the conditions contained in the Bill until she enters into the Commonwealth trade.


Senator Sir Josiah Symon - What do you mean by " the Commonwealth trade " ?







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