Amarantos Shipping Co Ltd v The State of South Australia - [2004] SASC 276

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
AMARANTOS SHIPPING CO LTD v THE STATE OF SOUTH AUSTRALIA & ORS
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
15 September 2004
SHIPPING AND NAVIGATION - PILOTS - LIABILITY FOR NEGLIGENCE OF PILOT
SHIPPING AND NAVIGATION - COLLISIONS AND LIMITATION OF LIABILITY GENERALLY - LIMITATION OF LIABILITY
CONSTITUTIONAL LAW - IMPERIAL, COLONIAL, STATE AND COMMONWEALTH CONSTITUTIONAL RELATIONSHIPS - IMPERIAL LEGISLATION
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - INCONSISTENCY OF LAWS - PARTICULAR CASES
Appellant's bulk carrier collided with a jetty while under compulsory pilotage - a number of issues of law relating to applicability of various instruments governing liability arose at trial and determined by the trial Judge - appellant appeals against the trial Judge's determination - whether appellant strictly liable under s 24 of the South Australian Ports Corporation Act 1994 (SA) and s 21 of the Harbors and Navigation Act 1993 (SA) - whether provisions of the Merchant Shipping Act 1894 (Imp) regulating liability were operative at the time of collison - whether liability is limited by s 1 and s 2 of the Merchant Shipping (Liability of Shipowners and Others) Act 1900 (Imp) - whether appellant's liability is limited by the Limitation of Liability of Maritime Claims Act 1989 (Cth) - whether State legislation invalid to the extent inconsistent with Commonwealth legislation regulating liability - appeal dismissed.
Harbors and Navigation Act 1993 (SA) s 21, s 36; Merchant Shipping (Liability of Shipowners and Others) Act 1900 (Imp) s 1, s 2, s 2(1), s 4, s 5; South Australian Ports Corporation Act 1994 (SA) s 24; Merchant Shipping Act 1894 (Imp) Part VIII, s 503, s 509, s 735, s 735(1), s 736; Navigation Act 1912 (Cth) s6, s 333, s 338, s 410B, s 410B(2), Part VIII Div 1 ; Navigation (Amendment) Act 1979 (Cth) s 65, s 65(1), s 103, s 104(2), s 104(3); Limitation of Liability for Maritime Claims Act 1989 (Cth) s 5, s 6; Statute Stocktake Act 1999 (Cth) s4(1); Judiciary Act 1903 (Cth) s 78B; International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships 1957 Art 1, Art 1(1), Art 1(1)(b), Art 1(1)(c); Convention of Limitation of Liability for Maritime Claims 1976 Art 2, Art 15(1), Art 15(3); Commonwealth of Australia Constitution Act s 51 (xxix), s 51 (xxxvii), s 51 (xxxviii), s 106, s 107, s 108, s 109; Statute of Westminster 1931 (Imp) s 2(1), s 2(2), s 9(1); Australia Act 1986 (UK) s 4; Australia Act 1986 (Cth) s 3(1), s 4; Colonial Laws Validity Act 1854 (Imp) s 2; The Statute of Westminster Adoption Act 1942 (Cth), referred to.
Kirmani v Captain Cook Cruises Pty Limited [No 1] (1985) 159 CLR 351; Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 627, applied.
Amarantos Shipping Co Ltd v The State of South Australia (2004) SASR 528; Attorney-General (WA) v Marquet (2003) 202 ALR 233; Shaw v Minister of Immigration and Multicultural Affairs (2003) 203 ALR 143, discussed.
China Ocean Shipping Co v The State of South Australia (1979) 145 CLR 172; O'Connor v Barameda Enterprises Pty Ltd (1987) 74 ALR 569; Bropho v The State of Western Australia (1990) 171 CLR 1; Port MacDonnell Professional Fishermen's Association Inc. v The State of South Australia (1989) 168 CLR 340; Commonwealth v New South Wales (1923) 33 CLR 1, considered.

AMARANTOS SHIPPING CO LTD v THE STATE OF SOUTH AUSTRALIA & ORS
[2004] SASC 276
Full Court: Doyle CJ, Perry and White JJ

DOYLE CJ: On 10 April 2000 the plaintiff’s bulk carrier Amarantos collided with the jetty in the harbour of Wallaroo, in waters within the State of South Australia, while berthing there.
The collision caused damage to the Amarantos, to the jetty and equipment on the jetty, property owned by South Australian Ports Corporation, (“SAPC”), and to items of plant and equipment on the jetty owned by third parties. The State of South Australia now stands in the place of SAPC.
The plaintiff and the State have each made claims against the other to recover the cost of repairing damage done in the collision.
The claim and counter-claim
When the collision occurred, the Amarantos was under compulsory pilotage. The pilot was employed and supplied by SAPC, and was being assisted by tugs provided by SAPC.
The plaintiff has sued the State for the cost of repairing the Amarantos, alleging (putting it generally) that SAPC was negligent in not providing tugs with sufficient power, in failing to warn the plaintiff that the harbour was of limited depth, and for misleading representations as to those matters. The plaintiff also alleges misleading representations by the pilot as to the same matters, as to his experience in berthing vessels like the Amarantos, and as to the suitability and safety of the methods that the pilot adopted in berthing the Amarantos. It is accepted that the State is the appropriate defendant in respect of these matters.
The State has denied liability. It has denied liability generally, and has denied liability for the conduct of the pilot, relying on s 36 of the Harbors and Navigation Act 1993 (SA). The State claims to limit any liability to the plaintiff, relying on the provisions of s 2 of the United Kingdom Merchant Shipping (Liability of Shipowners and Others) Act 1900 (“the 1900 Act”).
The State has also made a counter claim against the plaintiff for the cost of repairing the jetty. The State pleads that the plaintiff is strictly liable for loss or damage caused to the jetty. The State relies on s 21 of the Harbors and Navigation Act 1993 (SA) and on s 24 of the South Australian Ports Corporation Act 1994 (SA) (“the SAPC Act”).
In response to that, the plaintiff has raised a number of issues of law. I will begin by indicating their general effect. The plaintiff claims that State legislation that purports to impose strict liability on the plaintiff for damage to the jetty is ineffective; that State legislation making the owner of a ship liable for the negligence of a pilot is ineffective, and that accordingly the plaintiff is not liable for the actions of the pilot, the pilotage being compulsory. The plaintiff also argues that despite legislative provisions of the Commonwealth Parliament apparently repealing Part VIII of the United Kingdom Merchant Shipping Act 1894 (“the 1894 Act”), and the 1894 Act as a whole, and enacting a new regime for limiting liability, the plaintiff remains entitled to limit its liability under the 1900 Act. The plaintiff argues that the repeal of Part VIII of the 1894 Act does not affect the operation of the 1900 Act and that the repeal of the 1894 Act as part of the law of a State is beyond power. The plaintiff also argues that Commonwealth legislation enacting certain Conventions relating to limitation of liability also has no effect on the 1900 Act.
I will now identify the basis of these submissions. As to the allegation by the State that the plaintiff is strictly liable to the State for damage to its property, the plaintiff asserts that the imposition of liability for the conduct of a compulsory pilot, such liability being imposed by s 36 of the Harbors and Navigation Act, is inconsistent with s 410B(2) of the Navigation Act 1912 (Cth), and accordingly s 36 is invalid to that extent.
The plaintiff pleads that s 21 of the Harbors and Navigation Act and s 24 of the SAPC Act, which impose strict liability on the owner of a vessel for damage done to property of the Crown, even when a vessel is under compulsory pilotage, are likewise inconsistent with s 410B and are invalid. The plaintiff also contends that these provisions are invalid because they were not enacted in compliance with the requirements of s 735 and s 736 of the 1894 Act, which provisions conferred power on the colonial Parliament and later on the State Parliament to repeal the 1894 Act in its application to the colony Parliament and later to the State of South Australia. There is no dispute that those provisions of the 1894 Act were not complied with. The issue is whether they are still operative as part of the law of South Australia.
The plaintiff further pleads that if it is liable, it is entitled to limit its liability for damage to the jetty at the rate of 8 pounds sterling per ton of the Amarantos, by s 1 of the 1900 Act. The plaintiff goes on to assert that s 1 is still operative in South Australia despite the purported repeal of Part VIII of the 1894 Act by s 104(3) of the Navigation Amendment Act 1979 (Cth) (“the 1979 Act”). The plaintiff also pleads that s 1 of the 1900 Act remains operative despite the provisions of the Limitation of Liability forMaritime Claims Act 1989 (Cth) (“the 1989 Act”) and despite the provisions of the Statute Stocktake Act 1999 (Cth).
Claims have been made against the plaintiff, or are anticipated by the plaintiff, by owners of plant and equipment on the jetty and by others claiming to have suffered loss as a result of the collision. The State pleads that it anticipates such claims against it also. Both the plaintiff and the State claim indemnity from each other in respect of such claims. The plaintiff claims to be entitled to limit its liability in respect of those claims also. These claims, and the consequential claims to indemnity, are raised in the pleadings as between the plaintiff and the State.
A number of points of law arise on these pleadings.
A Judge of this Court has been managing the case between the plaintiff and the State under provisions of the Supreme Court Rules relating to complex cases. The Judge has transferred to the Supreme Court cases in the District Court in which other persons have made claims against the plaintiff.
The Judge took the view that it was desirable to determine points of law arising from the issues identified above. The Judge said that doing this might assist the parties to agree a negotiated settlement, and might reduce the issues to be canvassed at trial. On the basis of agreed facts set out in the Judge’s reasons, the Judge identified 12 questions of law. He answered them: see Amarantos Shipping Co Ltd v The State of South Australia [2004] SASC 57;(2004) 87 SASR 528. His answers are generally favourable to the State. The plaintiff has appealed.
Some of the questions raise questions arising under the Constitution or involving its interpretation. Notice was given under s 78B of the Judiciary Act to the Attorneys-General in relation to the proceedings before the Judge and on appeal. Only the Attorney-General for South Australia intervened on appeal.
The Judge also heard counsel for certain other claimants, permitting them to intervene in the proceedings because of the common issues that arose. Those parties also appeared on appeal.
Whether the course being followed will shorten the trial is unclear. The Judge’s answers have resulted in an appeal, not in the parties going to trial. If the issues of law are not resolved by the High Court before the trial, (and the High Court might well take the view that it should not decide these questions until after trial), the parties may well go to trial on the basis that the answers to the questions of law remain open. In other words, the trial will not be shorter, because the parties may seek findings of fact to cover the circumstances that may arise if whatever this Court decides on appeal turns out to be wrong. I raised this point at the outset of the appeal. However, no party suggested that the Court should not determine the appeal. In the circumstances I consider it appropriate to do so, although I fear that at the end of the day the length of the ultimate trial may not be shortened.
Limitation of liability in Australia
The ability of a shipowner to limit liability for loss and damage caused by a vessel has its origins for Australian purposes, in legislation enacted by the United Kingdom Parliament. Legislation providing for the right to limit liability can be traced back to the eighteenth century. Davies and Dickey Shipping Law (2^nd ed., LBC Information Services 1995), state at 446:
“Great Britain introduced its first Statute limiting liability in 1734, and it is clear that the shipping industry was singled out for this overt protectionism because of its importance to the British economy.” (Footnote omitted).
See also China Ocean Shipping Co v The State of South Australia (1979) 145 CLR 172 at 185, Barwick CJ. The scheme involves a limit on liability calculated by reference to the tonnage of the vessel causing loss.
The position in Australia until 1979 is conveniently summarised by Davies and Dickey at 447-448:
“Australia had no general statutory provisions of its own relating to limitation of shipowners’ liability until 1979. Limitation of liability in respect of government ships was introduced by Commonwealth legislation in 1958, but for non-government ships the limitation provisions in force in Australia continued to be those of the British Merchant Shipping Act 1894. That Act came into force in the Colonies because it applied generally to British possessions and it continued in force in the Commonwealth and each of the States after Federation. For the same reason, amendments to the Act of 1894 became part of the law of the Australian States, and also of the Commonwealth, prior to the Statute ofWestminster Adoption Act 1942 (Cth).” (Footnotes omitted).
The limitation provisions in the 1894 Act, to which they refer, are to be found in part VIII of the 1894 Act.
Meantime, things had moved on in other countries. There are two significant international conventions which complete the picture. The first is the International Convention Relating to the Limitation of the Liability of Owners of Sea-Going Ships of 1957 (“the 1957 Convention”). The second is the Convention on Limitation of Liability for Maritime Claims 1976 (“the 1976 Convention”). The response of the Commonwealth Parliament to these conventions is again conveniently summarised by Davies and Dickey at 448-449:
“In 1979, the Commonwealth finally legislated to adopt the provisions of the 1957 Limitation Convention. It did this by replacing the limitation provisions of the Act of 1894, and by enacting the 1957 Limitation Convention in toto as a schedule to the Navigation Act 1912 (Cth). The provisions giving effect to the 1957 Limitation Convention were, in turn, repealed and replaced by the Limitation of Liability for Maritime Claims Act 1989 (Cth), which gives the force of law to the 1976 Limitation Convention.” (Footnotes omitted).
The 1979 Act repealed part VIII of the 1894 Act by s 104(3). I will return to the terms of that provision. The same Act enacted the 1957 Convention, by s 65, inserting a new s 333 into the Navigation Act 1912, giving the 1957 Convention “the force of law as part of the law of the Commonwealth”.
The validity of these provisions is established by the decision of the High Court in Kirmani v Captain Cook Cruises Pty Ltd [No 1] (1985) 159 CLR 351. The reasons of the majority differed. However, as I understand the reasons, the majority all held that s 104(3) was effective to repeal Part VIII of the 1894 Act as part of Australian law, be it federal or state, viewing the matter in terms of the distribution of powers within the federation: Mason J at 382, Murphy J at 385, Brennan J at 404 and 418-419, Deane J at 420, 424 and 441.
Limitation of liability under the 1900 Act
How then does the plaintiff claim to limit its liability under the 1900 Act? The short answer is that the plaintiff contends that the repeal of the 1894 Act has no effect on the operation in Australia of s 1 of the 1900 Act on which the plaintiff relies. I mention here that the State claims that if it is liable to the plaintiff, it is entitled to limit its liability to the plaintiff under s 2 of the 1900 Act. The plaintiff also argues that the Commonwealth Parliament lacked power to repeal the 1900 Act by the 1979 Act. I defer for the moment explaining the basis of that submission. The plaintiff further contends that Commonwealth legislation enacting the 1957 Convention and the 1976 Convention has not had the effect of displacing the 1900 Act or rendering its provisions inoperative.
That submission makes it necessary to examine the relationship between the 1894 Act and the 1900 Act, the terms of the Commonwealth legislation relating to the 1957 Convention and the 1976 Convention, and the provisions of those Conventions.
Part VIII of the 1894 Act is headed “Liability of Shipowners”. By s 509 of the 1894 Act, this part of the Act is expressed to apply to “the whole of Her Majesty’s dominions”, and accordingly by its express terms applies to Australia. Section 503 of the 1894 Act, which is in Part VIII, relevantly provided as follows:
“503 (1).The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity; (that is to say,)
(a)Where any loss of life or personal injury is caused to any person being carried in the ship;
(b)Where any damage or loss is caused to any goods, merchandise, or other things whatsoever on board the ship;
(c)Where any loss of life or personal injury is caused to any person carried in any other vessel by reason of the improper navigation of the ship;
(d)Where any loss or damage is caused to any other vessel, or to any goods, merchandise, or other things whatsoever on board any other vessel, by reason of the improper navigation of the ship;
be liable to damages beyond the following amounts;…”
The section goes on to provide for the amount at which the liability of the shipowner is limited, that amount being fixed by reference to the tonnage of the ship. It is to be noted that the ability to limit liability, provided by s 503, is restricted to claims for loss of life, personal injury or damage to property on the ship in question or on another ship.
The 1900 Act, by s 1, extended the ability to limit liability to cases in which the claim was for the loss of or damage to property on land or on water generally. Section 1 provided as follows:
“1. The limitation of the liability of the owners of any ship set by section five hundred and three of the Merchant Shipping Act, 1894, in respect of loss of or damage to vessels, goods, merchandise, or other things, shall extend and apply to all cases where (without their actual fault or privity) any loss or damage is caused to property or rights of any kind, whether on land or on water, or whether fixed or moveable, by reason of the improper navigation or management of the ship.”
By s 2 the 1900 Act introduced, for the first time, a provision enabling a harbour authority and the owners of certain property to limit their liability. Section 2(1) provided as follows:
“2 (1) The owners of any dock or canal, or a harbour authority or a conservancy authority, as defined by the Merchant Shipping Act, 1894, shall not, where without their actual fault or privity any loss or damage is caused to any vessel or vessels, or to any goods, merchandise, or other things whatsoever on board any vessel or vessels, be liable to damages beyond an aggregate amount not exceeding eight pounds for each ton of the tonnage of the largest registered British ship which, at the time of such loss or damage occurring, is, or within the period of five years previous thereto has been, within the area over which such dock or canal owner, harbour authority, or conservancy authority, performs any duty or exercises any power. …”

As can be seen, the ability to limit liability is again related to the tonnage of vessels. Section 4 of the 1900 Act provides that the Act “may be cited as The Merchant Shipping (Liability of Shipowners and Others) Act, 1900”. Section 5 then provides:
“5. This Act shall be construed as one with the Merchant Shipping Act, 1894, and that Act and the Merchant Shipping Act, 1897, the Merchant Shipping (Exemption from Pilotage) Act, 1897, the Merchant Shipping (Liability of Shipowners) Act, 1898, the Merchant Shipping (Mercantile Marine Fund) Act, 1898, and this Act may be cited together as the Merchant Shipping Acts, 1894 to 1900.”
As I have already explained, these provisions operated in Australia until 1979. In 1979 the Commonwealth Parliament enacted the 1979 Act, amending the Navigation Act 1912 (Cth). The 1979 Act, by s 104(2), gave approval to the ratification by Australia of the 1957 Convention. The approval was for ratification “excluding the application of sub-paragraph (1) (c) of Article 1 of the Convention”.
By the same Act the Commonwealth Parliament repealed Part VIII of the 1894 Act. Section 103 of the 1979 Act provides:
“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.”
Section 104(3) provides:
“Part VIII of the Merchant Shipping Act is repealed.”
Section 6 of the Navigation Act, the definition section, contained the following definition:
“The Merchant Shipping Act” means the Imperial Act known as The Merchant Shipping Act 1894 and includes any Imperial Act amending it or substituted for it.”
Mr Street SC, counsel for the plaintiff, put forward two arguments in support of his submission that the 1979 Act does not repeal s 1 of the 1900 Act, or render its provisions inoperative.
The first submission was that s 104(3) refers only to the 1894 Act, and does not refer to the 1900 Act. Accordingly, he argued, the 1900 Act continues in force.
The second submission is based on the fact that the approval for ratification of the 1957 Convention by s 104(2) excluded the application of sub-paragraph (1)(c) of Article 1 of the 1957 Convention, as does s 333 of the Navigation Act (inserted by s 65(1) of the 1979 Amendment Act), s 333 providing as follows:
“333. The provisions of the Convention, other than sub-paragraph (1) (c) of Article 1 of that Convention, have the force of law as part of the law of the Commonwealth.”
That makes it necessary to refer to terms of Article 1 of the 1957 Convention, which provides as follows by clause (1):
“(1)The owner of a sea-going ship may limit his liability in accordance with Article 3 of this Convention in respect of claims arising from any of the following occurrences, unless the occurrence giving rise to the claim resulted from the actual fault or privity of the owner:
(a)     loss of life of, or personal injury to, any person being carried in the ship, and loss of, or damage to, any property on board the ship;
(b)    loss of life of, or personal injury to, any other person, whether on land or on water, loss of or damage to any other property or infringement of any rights caused by the act, neglect or default of any person on board the ship for whose act, neglect or default the owner is responsible or any person not on board the ship for whose act, neglect or default the owner is responsible: Provided however that in regard to the act, neglect or default of this last class of person, the owner shall only be entitled to limit his liability when the act, neglect or default is one which occurs in the navigation or the management of the ship or in the loading, carriage or discharge of its cargo or in the embarkation, carriage or disembarkation of its passengers;
(c)    any obligation or liability imposed by any law relating to the removal of wreck and arising from or in connection with the raising, removal or destruction of any ship which is sunk, stranded or abandoned (including anything which may be on board such ship) and any obligation or liability arising out of damage caused to harbour works, basins and navigable waterways.”
The submission, as I understood it, was as follows. In China Ocean the High Court held that the 1894 Act and the 1900 Act did not bind the Crown, so as to give a shipowner the ability to limit liability in respect of a claim by the Crown for damage to docks and harbours owned by the Crown (or State), as they usually were. The reservation in the 1979 Act in respect of article 1(1) (c) of the 1957 Convention, and the failure to enact that provision, indicate an intention by the Parliament that a shipowner should have no right to limit its liability in respect of damage to harbour works. That in turn indicated an intention to preserve the operation of s 1 of the 1900 Act which (as interpreted in China Ocean) conferred no right to limit liability in respect of harbour works, when they were the property of the Crown (or State).
A somewhat different submission was advanced in relation to the 1989 Act, which enacted the 1976 Convention.
Section 6 of the 1989 Act provides as follows:
“6. Subject to this Act, the provisions of the Convention, other than paragraphs 1(d) and (e) of Article 2, have the force of law in Australia.”
Article 2 of the 1976 Convention provides as follows:
“1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:
(a)claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom;
(b)claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage;
(c)claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations;
(d)claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship;
(e)claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship;
(f)claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.
2. Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1 (d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable.”
For present purposes it is not necessary to set out other Articles of the Convention, or to make any further reference to the excepted provisions in sub-paragraphs (d) and (e) of paragraph 1 of Article 2. I should add that the 1989 Act repealed Division 1 of Part VIII of the Navigation Act 1912. That Division contained the enactment of the 1957 Convention.
As to the 1976 Convention, it suffices to say that it provides a general scheme for limiting liability. There is no doubt that it confers the ability to limit liability for damage to harbour works.
Mr Street submitted that the 1900 Act, in its operation within the State, was to be treated as a law of the State for the purposes of s 109 of the Constitution. He submitted that the continued operation of the 1900 Act as a law of the State was not inconsistent within the meaning of s 109 of the Constitution with the operation of the 1976 Convention as a Commonwealth law. The 1900 Act could operate alongside the 1989 Act, and the 1976 Convention, because the 1989 Act did not purport to “cover the field” of limitation of liability. It did not manifest an intention to exclude the operation of relevant State laws. In fact, by s 5 it provides:
“5.This Act does not apply in relation to a ship to the extent that a law of a State or the Northern Territory makes provision giving effect to the Convention in relation to that ship.”
It was not inconsistent with the limitation scheme established by the 1989 Act to have alongside it a limitation scheme established by State law, which enabled a shipowner to limit its liability at a lower rate than the rate provided by the 1976 Convention. The scheme of limitation of liability was one which provided relief to shipowners, and it was not inconsistent with the scheme of the Commonwealth Act for State law to provide an ability to limit liability that was more advantageous to a shipowner than the limitation made available by Commonwealth law. I will return to these submissions in more detail in due course.
After that lengthy and rather complicated preamble, I now turn to the issues raised by Mr Street’s submissions.
The effect of the repeal of Part VIII of the 1894 Act
I have set out above the provisions of the 1979 Act dealing with the repeal of Part VIII of the 1894 Act.
I consider that the terms of s 103 of the 1979 Act are appropriate and intended to encompass, in the repeal effected by s 104(3) of the 1979 Act, the provisions of the 1900 Act. That act is an Imperial Act. The 1900 Act is entitled “An Act to amend the Merchant Shipping Act, 1894…” The effect of the 1900 Act was to extend the ability of the shipowner to limit liability, under s 503 of the 1894 Act, to a new category of claims against shipowners. That is, in form, an amendment of s 503. I do not accept the submission that the 1900 Act is an independent enactment that incorporates by reference the scheme in Part VIII of the 1894 Act. The language of s 1 is not appropriate to effect that intention. Rather, it reflects an assumption that the 1894 Act and its scheme is in operation, and extends that scheme in the manner provided. The terms of s 5 of the 1900 Act (set out above) are consistent with this view. In any event, s 103 of the 1979 Act refers to the 1894 Act “as amended, or otherwise affected in its operation” by other Imperial Acts. That language is apt to embrace what the 1900 Act does, whether one describes what it does as an amendment to the 1894 Act or as an incorporation of s 503 and other relevant provisions in Part VIII of the 1894 Act.
There is no reason why Parliament would have intended to leave s 1 of the 1900 Act in operation. In China Ocean the High Court decided that s 503 did not enable a shipowner to limit liability as against the Crown. The repeal of s 503 of itself would not prejudice the position of the Crown. The reservation in the 1979 Act in respect of Article 1 (1) (c) of the 1957 Convention in s 104, and the failure to enact it by s 65 of the 1979 Act, might indicate an intention that there should be no right to limit liability in respect of a claim for damage to “harbour works”. But that intention, if it existed, was effected by the reservation and failure to enact. It was not necessary to preserve s 503 (as affected by s 1 of the 1900 Act) to achieve that purpose.
There is no particular significance in the terms used in s 103 and s 104(3) to refer to the 1894 Act. I do not agree that the failure to use the citation given by s 5 of the 1900 Act indicates an intention to leave the 1900 Act in operation.
I conclude that the 1979 Act repealed Part VIII of the 1894 Act and s 1 at least of the 1900 Act.
In any event, I regard the enactment of the 1957 Convention as the enactment of a legislative scheme inconsistent with the survival of the 1900 Act, or such parts of the 1894 Act as it might have adopted.
The submission advanced by Mr Street postulates that the Parliament intended to repeal and did repeal the 1894 Act, but has made no reference to the 1900 Act dealing with limiting liability in respect of claims for loss or damage to land based property of any kind and dealing with property “on water” that is not caught by the scheme of the 1894 Act. Assuming that is what Parliament has done, one must then consider the significance of the enactment of the 1957 Convention.
The provisions in Article 1 (1) (b) of the Convention are apt to cover many claims of the kind dealt with by s 1 of the 1900 Act and said not to be referred to by the 1979 Act, except, probably, claims in respect of “harbour works” and the like referred to in Article 1(1)(c): see O’Connor v Barameda Enterprises Pty Ltd (1987) 74 ALR 569 at 578, 600. I cannot accept that Parliament could have contemplated that the remnant provisions in s 1 of the 1900 Act would continue to operate in relation to property to which they refer, and that the enacted provisions of the 1957 Convention would operate concurrently in relation to property to which they refer. The 1957 Convention contains its own procedural scheme, and limitation amounts higher than those provided by the 1894 Act (as adopted by the 1900 Act). The maintenance of two schemes operating concurrently makes no practical sense. I am unable to accept the suggestion that a shipowner was intended to have the right to choose as between either scheme, when their provisions overlapped. The enactment of the 1957 Convention indicates an intention to cover the field dealt with by the 1894 Act and s 1 of the 1900 Act, in the sense that it sets up a scheme the existence of which is inconsistent with the existence of a scheme differing in substance and procedurally, but applying to claims that are covered by the 1957 Convention, to some extent at least.
Whether the appropriate test is one of inconsistency for the purpose of s 109 of the Constitution, repugnancy or implied repeal, I consider that Parliament’s enactment of the 1957 Convention had the effect of terminating the operation of s 1 of the 1900 Act in Australia.
Even if s 1 of the 1900 Act has survived, the question remains of how it gives the plaintiff a right of limitation against the State, having regard to the decision in China Ocean that the provision does not bind the Crown. Mr Street submits that the reasoning in China Ocean has been overtaken by the approach taken in Bropho v The State of Western Australia (1990) 171 CLR 1, as to whether a statute binds the Crown. That submission is not for this Court to pass on.
Mr Street argued that the Commonwealth Parliament lacked the power to repeal the 1900 Act, and so has not done so, even if it purported to do so.
His submission attempts to avoid the obstacle apparently presented by the decision of the High Court in Kirmani. As I have already said, in Kirmani the majority held that the 1979 Act validly repealed Part VIII of the 1894 Act. Mr Street argued that in Kirmani the High Court did not deal with the 1900 Act, and that to the extent that the 1979 Act is to be construed as intending to repeal it, it goes beyond Commonwealth legislative power.
I do not accept this submission. The majority view in Kirmani was that s 104(3) of the 1979 Act, read in conjunction with s 103, repealed Part VIII of the 1894 Act. I have decided that the language used in s 103 is apt to embrace provisions of the 1900 Act. Accordingly, the decision in Kirmani upholds the repeal of the 1900 Act. The decision in Kirmani should be taken to apply to the repeal of the 1900 Act. It is not for this Court to question the correctness of that aspect of the High Court’s reasoning.
Were it necessary to consider for myself the question of whether the Commonwealth Parliament had the power in 1979 to repeal the 1900 Act, I would conclude that it did. I am bound to so conclude. The reasoning of those members of the High Court in Kirmani who joined in making the order declaring that Part VIII of the 1894 Act was repealed as part of the law of Australia, differed. Mason J found the source of legislative power in s 2(2) of the Statute of Westminster 1931 (Imp) and in s 51(xxix) of the Constitution, the external affairs power; at 377, 381-382. Murphy J relied solely on the external affairs power; at 384-385. Brennan J relied solely on s 2(2) of the Statute of Westminster: at 418-419. Deane J relied on the Statute of Westminster and on the external affairs power: at 429-430, 439. There is no reason to think that the reasoning of the majority would not apply equally to the issue of the legislative power to repeal the 1900 Act, assuming that the intention to do so was found in the 1979 Act. This Court should proceed on the basis that the reasoning of the majority does so apply, unless the High Court indicates otherwise.
For those reasons, I conclude that s 1 of the 1900 Act is no longer in force in Australia as part of the law of Australia. The owners of the Amarantos are not entitled to limit liability by reference to that provision.
I agree generally with the reasons given by the trial Judge. I agree with his answers to questions 2, 3, 4, 5, 6, 8, and to the relevant part of the answer to question 9. I deal later with his answers in relation to s 2 of the 1900 Act.
The 1989 Act
I can deal more briefly with the operation of the 1989 Act.
It too enacted a new scheme for limiting liability, by repealing the provisions inserted into the Navigation Act by the 1979 Act, and by enacting the 1976 Convention, with certain qualifications. The provisions of s 5, enacting the 1976 Convention, and of Article 2 of that Convention, are set out above. I did not understand Mr Street to argue that the Commonwealth Parliament lacked the legislative power to enact the 1976 Convention, at least in its application to interstate and overseas shipping.
In deciding whether the enactment of the 1976 Convention amounts to a repeal of the 1900 Act (assuming, contrary to my conclusion, that the repeal of Part VIII of the 1894 Act did not do so), or is inconsistent with the continued operation of the 1900 Act as part of the law of the State of South Australia, one must assume that the 1900 Act continues to operate but for the impact of the 1976 Convention.
However one approaches the matter, I am satisfied that the enactment of the 1976 Convention is inconsistent with the continued operation of the 1900 Act. That is my view whether the test is one of implied repeal, of repugnancy or of inconsistency for the purposes of s 109 of the Australian Constitution.
The enactment of the 1976 Convention indicates an intention to cover the field, in the sense of providing a single scheme for shipowners to limit liability, subject only to the exceptions that the Parliament itself has permitted.
While the scheme of the 1976 Convention is permissive, in the sense that it permits a shipowner to limit liability, it is otherwise a general scheme covering a wide range of situations, and specifying the amount at which liability can be limited.
I do not accept the submission by Mr Street that the 1900 Act can operate alongside the 1976 Convention, giving a shipowner a right to limit liability at a lower rate in circumstances to which it applies, and to use the procedural scheme found in the 1894 Act, which Mr Street has to treat as adopted and kept alive by the 1900 Act. The enactment of the 1976 Convention is not consistent with an intention to establish a scheme and limit of liability, leaving to the choice of a shipowner the possibility of resort to a different scheme and a more favourable limit under Australian law, in the form of the 1900 Act on Mr Street’s argument. This, it seems to me, would be destructive of the scheme of the Convention. The concurrent operation of the scheme of the 1900 Act does not fit with the exclusions or departures that the 1976 Convention contemplates may occur.

Section 5 of the 1989 Act provides as follows:
“5.This Act does not apply in relation to a ship to the extent that a law of a State or the Northern Territory makes provision giving effect to the Convention in relation to that ship.”
This does not assist Mr Street. It is limited to State laws that give effect to the Convention. Such a law would be one implementing the Convention or, possibly, taking advantage of a specific exception or permitted deviation. The 1900 Act cannot be so categorised. It cannot be regarded notionally as the law of the State of South Australia giving effect to the Convention in relation to a category of ship into which the Amarantos falls.
By s 338 in Division 2 of Part VIII of the Navigation Act 1912 (inserted by the 1979 Act) there is provision for the exclusion of liability of a shipowner, other than of a foreign ship, for loss or damage to goods and merchandise in relatively limited and specified circumstances. The 1989 Act left that exclusion in effect. That does not support Mr Street’s submission that the continued operation of the 1900 Act is not inconsistent with the enactment of the 1976 Convention. First, it is a provision dealing with the existence of liability, not with the limitation of liability that exists under the law. Second, to the extent that it might be said to represent a departure from the scheme of the Convention (I do not necessarily accept that it does), it merely reflects a decision by the Commonwealth Parliament as to the form of the scheme that the Parliament proposes to establish. The fact that the Parliament itself makes a particular departure from the scheme of the 1976 Convention does not lead to the conclusion that it contemplated other unspecified departures.
Article 15(3) of the 1976 Convention provides as follows:
“3. A State party may regulate by specific provisions of national law the system of limitation of liability to be applied to claims arising in cases in which interests of persons who are nationals of other States Parties are in no way involved.”
It is an agreed fact that the Amarantos is registered in Malta and that Malta is not a party to the 1976 Convention. Accordingly, it may be that article 15(3) would permit the Commonwealth to depart from the 1976 Convention for a case such as this involving a national of Malta and Australian nationals. But the 1900 Act cannot be regarded as such a provision. It is not limited to the circumstances contemplated by article 15(3). It cannot sensibly be read down so as to apply only to a case falling within article 15(3). And the fact that article 15(3) contemplates the making of such provision does not support a submission that a provision in the form of the 1900 Act is not inconsistent with the enactment of the 1976 Convention. Similar reasoning applies to article 15(1), to the extent that it enables a State Party to exclude certain persons from the operation of Article 1. The short answer is that the Commonwealth Parliament has not exercised either power of exclusion or regulation by specific provision, and the fact that it has that power does not support the submission that the continued operation of provisions such as those found in the 1900 Act is consistent with the scheme of the 1976 Convention.
For the reasons given I agree with the answer given by the trial Judge to question 7, to the effect that the 1989 Act regulates the claim by the owners of the Amarantos to limit liability in the circumstances of the case before the Court. For the reasons given I agree with the relevant part of the Judge’s answer to question 9, to the effect that the 1989 Act has repealed or rendered inoperative the provisions of the 1900 Act.
Finally, I refer to the Statute Stocktake Act 1999. The long title of this Act describes it as an Act “to repeal redundant Acts … and for related purposes.” Section 4(1) provides as follows:
“4.(1)So far as the Imperial Act known as the Merchant Shipping Act, 1894 (as amended or affected by any other Imperial Act or Act of the Commonwealth) forms part of the law of the Commonwealth or of an external Territory, it is repealed.”
I doubt whether the provisions of this Act take the matter any further. If Mr Street’s submission that a reference to the 1894 Act does not include a reference to the 1900 Act is correct, then for those reasons, the repeal effected by the Statute Stocktake Act will have failed to repeal the 1900 Act. If his submission is not correct, the 1900 Act was already repealed when the Statute Stocktake Act was enacted. I add, for the purposes of completeness, that the reasoning of the High Court in Kirmani supports the validity of s 4(1) in so far as it repeals the 1894 Act, and supports the conclusion that the repeal has the effect of repealing the 1894 Act as part of Australian law, federal or State.
Section 2 of the 1900 Act
So far I have made only passing reference to s 2 of the 1900 Act. There is force in the submission by Mr Street that s 2 of the 1900 Act does not amend or affect the operation of the 1894 Act. It created a new right to limit liability, (available not to a shipowner, the right created by the 1894 Act) but available to the class of persons referred to in s 2 of the 1900 Act. On the other hand, s 5 of the 1900 Act indicates that s 2 is also to be read with and treated as embracing the scheme in Part VIII of the 1894 Act, to the extent that specific provision is not made in the 1900 Act for the application in practice of the right of limitation created by s 2.
I favour the conclusion that the repeal effected by s 104(3) of the 1979 Act included the repeal of s 2 of the 1900 Act. But I recognise the force of the contrary argument, which was the view taken by the Judge below: at [27].
But I agree in any event with the conclusion of the Judge that the enactment of the 1976 Convention by the 1989 Act was the enactment of a scheme inconsistent with the survival of s 2 of the 1900 Act. It is true that s 2 confers a right to limit liability on the “owners of any dock or canal, or a harbour authority or a conservancy authority” for damage done to a vessel or to things on board a vessel, and that this is not a matter dealt with at all by the 1976 Convention. That Convention confers a right to limit liability only on shipowners. But, with some hesitation, I agree that the enactment of the 1976 Convention manifests an intention to cover the field of limitation of liability in connection with the operation of ships, and that the omission of a right of the kind created by s 2 of the 1900 Act indicates an intention that there shall be no such right.
In any event, the State has not appealed against the decision by the Judge in this respect. The plaintiff has disputed the trial Judge’s approach to s 2 only to the extent that the plaintiff relies on arguments based on the continued operation of s 2, to support the plaintiff’s arguments for the continued operation of s 1. Even if s 2 of the 1900 Act remains in operation, I would adhere to the views already expressed. Accordingly, for the purposes of the appeal it is not necessary to express a final view on the continued operation of s 2.
The imposition of strict liability by State law – inconsistency with Commonwealth law
The State by counter-claim pleads that the plaintiff as owner of the Amarantos is strictly liable for damage caused to the jetty with which the Amarantos collided. The State alleges that the owner is strictly liable for the damage, and is so liable even though the vessel was under compulsory pilotage. At common law, as is well known, the owner of a ship was liable for the negligence of the pilot if the pilot was engaged voluntarily, but was not liable for the negligence of a compulsory pilot: see Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 627 at 640 Gibbs CJ; at 643-644 Wilson J, at 660-661 Brennan J and at 683 Dawson J.
The State relies on the following provisions. First, s 21 of the Harbors and Navigation Act which provides as follows:
“Liability for damage
21.(1)          If property of the Crown or the Minister is damaged by a vessel, the owner of the vessel is liable to the Minister for the amount of the damage.
(2)          If property in private ownership consisting of harbor facilities or a navigational aid is damaged by a vessel, the owner of the vessel is liable to the owner of the property for the amount of the damage.
(3)          The liability may be enforced by action against the owner or by action against the vessel (or both).
(4)This section creates a strict liability that exists irrespective of fault and irrespective of whether the vessel is under compulsory pilotage at the time the damage is caused.”
The State relies also on s 24 of the SAPC Act which provides as follows:
“Liability for damage
24.     (1)          If property of the Corporation is damaged by a vessel, the owner of the vessel is liable to the Corporation for the amount of the damage.
(2)The liability may be enforced by action against the owner or by action against the vessel (or both).
(3)          This section creates a strict liability that exists irrespective of fault and irrespective of whether the vessel is under compulsory pilotage at the time the damage is caused.”
In response, the plaintiff submits that these provisions are inconsistent, within the meaning of s 109 of the Australian Constitution, with the provisions of s 410B of the Navigation Act 1912 which provides:
“410B Liability of master or owner of ship under pilotage
(1) A pilot who has the conduct of a ship is subject to the authority of the master of the ship and the master is not relieved from responsibility for the conduct and navigation of the ship by reason only of the ship being under pilotage.
(2) Notwithstanding anything contained in a law of the Commonwealth or of a state or Territory, the owner or master of a ship navigating under circumstances in which pilotage is compulsory under a law of a State or Territory is answerable for any loss or damage caused by the ship, or by a fault of the navigation of the ship, in the same manner as the master or owner would if pilotage were not compulsory.”
This provision was enacted in 1958. The plaintiff argues that the imposition of strict liability for the negligence of a compulsory pilot is inconsistent with this provision.
There is no doubt that s 410B eliminates the distinction between compulsory and voluntary pilotage. The owner of a ship under compulsory pilotage is “answerable” for loss or damage “in the same manner as the master … would if pilotage were not compulsory.” Accordingly, applying common law principles, if a compulsory pilot is negligent in discharging the pilot’s duties, the owner will be vicariously liable. If the pilot was not negligent, no liability on the part of the owner would be attributable to the conduct of the pilot.
Bearing that in mind, is it inconsistent with the provisions of s 410B for State law to impose strict liability on the owner of a vessel for damage done by the vessel to property of the Crown or to property of the SAPC? Is it inconsistent with those provisions to impose that liability on the owner of the vessel even though the vessel is under compulsory pilotage? Such a provision is inconsistent with the provisions of s 410B, in my opinion, only if s 410B is intended to do more than remove the distinction between liability of an owner for damage done when a ship is under voluntary pilotage and under compulsory pilotage, and in particular only if s 410B is intended to provide further that the liability of a shipowner for damage caused by the ship under pilotage (voluntary or compulsory) should depend upon proof of negligence by the pilot, as was the case at common law. That is, the imposition of strict liability under the provisions of State law is inconsistent with s 410B only if that provision is intended to remove the distinction between the liability of an owner in a case of voluntary pilotage and a case of compulsory pilotage, and to preserve in each situation the common law basis of the owner’s liability for the act of a pilot causing damage to property, namely, proof of negligence by the pilot.
If s 410B is intended to do no more than remove the distinction, without regulating in any way the basis upon which an owner may be found liable, and in particular without intending to preserve the common law requirement of proof of negligence, then a State law regulating the basis upon which an owner may be found liable will not be inconsistent with s 410B.
Mr Street argued that, properly understood, s 410B was intended to confine the liability of the owner of a ship, in the case of compulsory pilotage, to such liability as exists in the case of voluntary pilotage. I agree, but, as I have explained, that is not the issue. The issue is whether s 410B also preserves the common law basis of the liability of the owner who voluntarily engages a pilot.
The Judge below has traced the history behind the enactment of 410B. I agree with him that the history does not establish an intention by Parliament to prescribe the circumstances in which liability for the acts of a voluntary pilot will arise. Nor do the terms of s 410B.
I agree that the references to s 410B in Oceanic Crest are in terms of s 410B removing the distinction between voluntary and compulsory pilotage in the case of negligent acts by the pilot: see Oceanic Crest at 641 Gibbs CJ, at 645-646 Wilson J, at 666-669 Brennan J, at 680 Deane J and at 681, 684-685 Dawson J. That was a case in which a claim was based on negligent acts, and there was no reason for the members of the Court to direct their mind to a case like the present.
I find nothing in the terms of s 410B, or arising from its original purpose, leading to the conclusion that it prescribes the basis upon which a shipowner may be made liable for damage attributable to the navigation of a vessel by a voluntary pilot. That being so, it is open to State legislation to deal with that matter, and to make that liability a strict liability.
That is what the provisions in question do. The reference to compulsory pilotage does no more than make it clear that the intention to impose strict liability applies in that situation. That, in any event, is the effect of the application of s 410B. If the owner of a vessel under voluntary pilotage is subject to strict liability for damage done by the vessel, then s 410B requires that the owner will be liable on the same basis if the vessel is under compulsory pilotage. To the extent that the State law in question attempts to regulate that situation, its provisions are unnecessary and can, to that extent, be read down.
For those reasons I conclude that the State laws in question are not inconsistent with s 410B. I agree with the answers given by the Judge to question 1 and question 12. Having regard to the argument before us, I see no need to deal with question 11, relating to s 36 of the Harbors and Navigation Act.
The imposition of strict liability by State law - invalidity
Mr Street argued that if s 21 of the Harbors and Navigation Act and s 24 of the SAPC Act were not inconsistent with s 410B, they were in any event invalid.
His submission is that these provisions were not enacted in compliance with the requirements of s 735 and s 736 of the 1894 Act, provisions not contained in Part VIII of that Act. It is common ground that they were not enacted in compliance with those provisions. It suffices to set out the terms of s 735(1) of the 1894 Act, because that provision illustrates the sort of restriction on legislative power on which Mr Street relies. It provides as follows:
“735(1) The legislature of any British possession may by any Act or Ordinance, confirmed by Her Majesty in Council, repeal, wholly or in part, any provisions of this Act (other than those of the Third Part thereof which relate to emigrant ships), relating to ships registered in that possession; but any such Act or Ordinance 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 or Ordinance for the purpose.”
As can be seen, the power of repeal that the provision confers is subject to confirmation by Her Majesty in Council. Section 736 contains a similar proviso.
These sections were repealed, or purportedly repealed, in 1986 by s 4 of the Australia Act 1986 (Cth) and by s 4 of the Australia Act 1986 (UK). Section 4 of the Commonwealth Act provides as follows:
“4.Sections 735 and 736 of the Act of the Parliament of the United Kingdom known as the Merchant Shipping Act 1894, in so far as they are part of the law of a State, are hereby repealed.”
Section 4 of the United Kingdom Act is in identical terms.
Mr Street submits that these provisions are invalid or ineffective, that accordingly s 735 and s 736 continue to operate, and that for that reason the South Australian provisions imposing strict liability were not validly enacted.
That submission assumes that the imposition of strict liability was “repugnant” to the provisions of the 1894 Act or of the 1900 Act. I doubt whether it was. The imposition of strict liability is not repugnant to or contrary to a scheme for limiting liability if liability exists. However, this point was not fully argued, and so I put it to one side.
In argument before us the only suggested source of power for the enactment by the Commonwealth Parliament of s 4 was said to be s 51(xxxviii) of the Constitution which confers on the Parliament power to make laws with respect to:
“The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:”
Mr Street argued that the power to repeal s 735 and s 736 of the 1894 Act was not a power that at the relevant time could be exercised only by the Parliament of the United Kingdom or by the Federal Council. First, he argued that s 735 and s 736 conferred on the colonial (and later State) Parliaments power to repeal the 1894 Act. Second, he argued that s 51(xxxvii) of the Constitution conferred power on the Commonwealth Parliament to repeal the 1894 Act. That provision confers power on the Commonwealth Parliament to make laws with respect to:
“Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:”
As there were bases upon which a State Parliament or the Commonwealth Parliament had power to repeal the 1894 Act, the power conferred by s 51(xxxviii) was not available. His third argument was that s 4 of the United Kingdom Act could not and did not validly repeal s 735 and s 736 of the 1894 Act, having regard to the terms of s 108 of the Constitution.
The starting point for a consideration of these submissions is that the 1894 Act applied to the Australian Colonies, and subsequently to the Commonwealth of Australia, as a law of the Commonwealth and as a law of the States by its express terms. That is, it applied by paramount force. Accordingly, by virtue of s 2 of the Colonial Laws Validity Act 1865 (Imp), Commonwealth or State legislation that was “repugnant” to the provisions of the 1894 Act was “void and inoperative”. The Statute of Westminster Adoption Act 1942 (Cth) adopted certain provisions of the United Kingdom Statute of Westminster 1931. It adopted s 2(1) of that Act, which provided that the Colonial Laws Validity Act “shall not apply to any law made after the commencement of this Act” by the Commonwealth Parliament. That meant that the Commonwealth could legislate in a manner inconsistent with the 1894 Act. The previous restraint on the legislative power of a State Parliament continued.

The High Court decision in Kirmani suggests that after 1942 the Commonwealth Parliament had legislative power to repeal the whole of the 1894 Act in its application to Australia as part of the law of Australia, be it as federal law or State law. But it appears that doubts persisted about the extent of the Commonwealth legislative power in relation to the application of the 1894 Act as part of the law of a State of Australia. In any event, it was only in 1999 in the Statute Stocktake Act that the Commonwealth Parliament repealed the 1894 Act in its entirety. The provisions of State law that are under consideration here were enacted before then. It was not argued before us that the 1999 repeal of the 1894 Act caused these provisions to revive, if they were previously “void and inoperative”.
The apparent effect of s 4 of the Australia Act 1986 (Cth) is to repeal s 735 and s 736 of the 1894 Act, “in so far as they are part of the law of a State”, and so as part of the law of South Australia. That repeal, coupled with the provision by s 3(1) of the Australia Act that the Colonial Laws Validity Act should not apply thereafter to a law made by the Parliament of a State, left a State Parliament free to enact legislation inconsistent with the 1894 Act, without having to comply with restrictions found in s 735 and s 736 of the 1894 Act. It also left a State Parliament at liberty to repeal the provisions of that Act in their applications to the State.
It may be that the enactment of s 3 of the Australia Act 1986 was sufficient to enable a State Parliament to repeal the 1894 Act, because the Parliament was no longer subject to the restraint imposed by the Colonial Laws Validity Act. However, that matter was not argued before us, and I pursue it no further.
As to s 4, the issue argued before us was whether that provision was supported by s 51(xxxviii) of the Constitution. In my opinion it is. The relevant time for consideration under s 51(xxxviii) is immediately before the establishment of the Constitution: see Port MacDonnell Professional Fishermen’s Association Inc. v The State of South Australia (1989) 168 CLR 340 at 375-376. Immediately before the establishment of the Constitution, the Parliaments of the Australian Colonies lacked the power to repeal the provisions of the 1894 Act in their application to the Australian colonies. The power conferred on them by s 735 and s 736 was a limited power. Under s 735 it was a power to repeal only provisions “relating to ships registered in that possession”. The power conferred by s 736 was not a power of repeal, but a power to “regulate the coasting trade”, itself subject to further requirements including one to treat all British ships in the same manner as ships of the relevant possession.
A colonial law purporting to repeal the Merchant Shipping Act in its application to the colony, or as part of the law of the colony, would have been invalid. It would travel beyond the power granted by s 735 and by s 736. The difference is one of substance and not of form. It is the difference between an unlimited power to repeal and amend, and a power to terminate the operation of provisions of the 1894 Act in relation to certain ships and a power to make different provision regulating a particular aspect of shipping activity within a colony. While in some situations the repeal of a particular provision of the 1894 Act might occur as a prelude to or as part of the enactment of affirmative provisions permitted by s 735 and s 736, the fundamental point is that a simple repeal was not within the power conferred.
For those reasons I conclude that the power exercised by the enactment of s 4 of the Australia Act 1986 (Cth) is a power that could not be exercised by the Parliament of a colony immediately before the establishment of the Constitution, or, if it is relevant, by the Commonwealth Parliament or the Parliament of a State immediately after the establishment of the Constitution. It follows that the power was one which could be exercised only by the Parliament of the United Kingdom, and that the power accordingly is one provided by s 51(xxxviii).
I have considered the observations made by members of the High Court in Kirmani which are said to bear on this point. Those observations related to s 9(1) of the Statute of Westminster 1931. That section provides:
“9(1) Nothing in this Act shall be deemed to authorise 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.”
In Kirmani the relevant submission was that the purported repeal by the 1979 Act of Part VIII of the 1894 Act was beyond power. That submission was rejected by a majority. The majority found the relevant source of power in either s 2(2) of the Statute of Westminster or in the external affairs power. One of the arguments advanced against this conclusion was that the power conferred by s 735 of the 1894 Act would have permitted a State Parliament to enact legislation providing for the limiting of liability by a shipowner for injuries and loss sustained in the internal waters of a state, that accordingly that was a matter “within the authority of the States of Australia”, and not within the legislative authority of the Parliament of the Commonwealth.
The argument before the High Court in Kirmani focused on a submission that the requirement of confirmation by Her Majesty in Council (s 735) and signification of Her Majesty’s pleasure (s 736) meant that a power of repeal was not conferred but a lesser power that required the obtaining of confirmation or approval. The argument was not the same as the argument put to this Court. Nor was the Court concerned with a possibility of an unqualified repeal of the provisions of the 1894 Act.
Be that as it may, the submission that the repeal of Part VIII was a matter “within the authority of the States of Australia” was accepted by Gibbs CJ at 368-369, by Wilson J at 393-394 and by Dawson J at 454-455. The submission was left undecided by Mason J at 378-379, rejected by Brennan J at 418-419 and left unconsidered by Murphy J.
I consider that the observations made in Kirmani do not support the submission by Mr Street. The point under consideration was quite different. It was whether the existence of a “manner and form requirement” as a condition of legislation on a topic, meant that the matter was not one “within the authority of the States of Australia”. In the present case the issue is whether the power exercised, an unqualified power of repeal, was at a certain time within the legislative power or authority of the State Parliaments. In my respectful opinion the observations made in Kirmani throw no light on that issue. The argument in Kirmani proceeded on the basis that it was within the legislative power of the Parliament of the State to legislate in respect of the limit of liability of the owner of a ship for injury sustained in the internal waters of a State: see Gibbs CJ at 367. Thus, the argument proceeded on the basis that the State had power to legislate on the matter in respect of which Part VIII of the 1894 Act would have operated but for its purported repeal. In the present case the issue is whether a State Parliament had the relevant power at all, that is, power to enact an unqualified repeal of provisions of the 1894 Act in their application as part of the law of the State. I should add that the argument in Kirmani also proceeded on the basis that what was at issue was the power to repeal Part VIII of the 1894 Act in its application to a ship registered in the State of New South Wales: Mason J at 378.
In short, it appears to me that the observations made in Kirmani do not, in the end, provide any support for Mr Street’s submission.
Accordingly, I adhere to my view that the power to repeal in unqualified terms the provisions of the 1894 Act in their application to a State is a power that at the relevant time could be exercised only by the Parliament of the United Kingdom, and accordingly is a power of the Commonwealth Parliament pursuant to s 51(xxxviii) of the Constitution. There is no doubt that the other requirements of that provision were satisfied. Accordingly, s 4 of the Australia Act 1986 (Cth) validly repealed s 735 and s 736 of the 1894 Act.
Were it necessary to do so, I would also conclude that s 4 of the Australia Act 1986 (UK) had the same effect. It purports to repeal s 735 and s 736. The High Court has not decided that in 1986 the United Kingdom Parliament had legislative power, for the purposes of Australian law, to repeal these provisions in their application to Australia. But in Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 202 ALR 233 Gleeson CJ, Gummow, Hayne and Heydon JJ proceeded on the assumption that the Australia Act 1986 (UK) was a valid enactment. So did Callinan J at [294]. Kirby J at [203] was firmly of the contrary view, but in Shawv Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 203 ALR 143 at [108] he treated the decision in Marquet as holding that the Australia Acts are valid laws. Gleeson CJ, Gummow and Hayne JJ at [25] and Callinan J at [178] again appear to have treated the Australia Acts as valid enactments. As I said, I do not treat these observations of the High Court as binding authority, the issue of the validity of the Australia Acts apparently not having been contested. However, this Court should accept the premise upon which a majority of the High Court proceeded in each of those cases. Accordingly, s 4 of the Australia Act (UK) is to be treated as having repealed s 735 and s 736.
Mr Street put a further submission that by s 108 of the Constitution in particular, and more generally by s 106 and s 107 of the Constitution, the legislative powers of the States are fixed and established by the Constitution, and that because of that there was, after the establishment of the Constitution, no power in the United Kingdom Parliament to confer powers on a State legislature or to interfere with State laws. Whatever merit there may be in that submission as a very general proposition, the submission is of no assistance in the present case. First, I consider that s 108, obscure as it may be in its operation, relates to the interaction between laws of a colony and the legislative powers and laws of the Commonwealth, after the establishment of the Constitution. In particular, it appears to be intended to ensure that State laws dealing with matters within the exclusive power of the Commonwealth Parliament would continue in force for the time being: Commonwealth v New South Wales (1923) 33 CLR 1. Second, we are presently concerned with suggested restraints on State legislative power which have their source in enactments of the United Kingdom Parliament. They are restraints found outside the Constitution and, in a sense, outside Australian Constitutional arrangements. To my mind the removal of such a restraint by the United Kingdom Parliament, at least in a case like the present, is not an interference with the “Constitution of each State” or with the powers of the Parliaments of the States of a kind that is contrary to what is contemplated by chapter V of the Constitution.
I do not accept the submission by Mr Street that the power to repeal the provisions of the 1894 Act can be found in s 51(xxxvii) of the Constitution, and accordingly cannot be found within s 51(xxxviii). Each provision is set out above. The relevant time for the purposes of s 51(xxxviii) is immediately before the establishment of the Constitution. The power in s 51(xxxvii) is given by reference to circumstances that arose after the commencement of the Constitution. Arguably, for that reason, at the relevant time there could not have been any matter attracting the operation of s 51(xxxviii). But quite apart from that, the most that can be said in the present case is that if the Parliament of South Australia had referred to the Parliament of the Commonwealth the matter of legislating for the repeal of s 735 and s 736, as part of the law of the State, the Commonwealth Parliament would then have had power to legislate accordingly. The fact that a matter might be referred by the Parliament of a State to the Parliament of the Commonwealth does not mean that the Parliament of the Commonwealth has the relevant power of legislation. It means no more than that, as a result of certain events, it might acquire that power. Accordingly, it cannot be said that at any relevant time the Commonwealth had power under s 51(xxxvii) of the Constitution to repeal the relevant provisions of the 1894 Act.
The relevant provision of the Harbors and Navigation Act and of the SAPC Act have not been shown to be invalid or inoperative. Accordingly, my agreement with the answers given by the Judge to questions 1 and 12 need not be qualified.
Conclusion
To the extent that the answers by the Judge to the questions of law were challenged on appeal, I would dismiss the appeal. The parties should prepare minutes of order to reflect this decision.
PERRY J: I agree with the order proposed by Doyle CJ and with his reasons.
WHITE J: I agree with the order for the outcome of this appeal proposed by the Chief Justice. I also agree with his reasons. There is nothing I wish to add.