Bistricic v Rokov

[1976] HCA 54

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Mason, Jacobs and Murphy JJ.

BISTRICIC v. ROKOV

(1976) 135 CLR 552

21 October 1976

Constitutional Law (N.S.W.)—Shipping and Navigation

Constitutional Law (N.S.W.)—Applicability of Imperial law in New South Wales—Imperial Act of 1894 applicable in State—Amendment by United Kingdom Parliament in 1958—Not expressed to apply to Australian States—Whether part of law of New South Wales—Merchant Shipping Act, 1894 (Imp.), s. 503(1)—Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (U.K.), S. 2(4). Shipping and Navigation—Injury to person being carried in ship— Whether member of crew being carried in ship—Merchant Shipping Act, 1894 (Imp.), s. 503(1)(a).

Decisions

October 21.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Mason. I entirely agree with what he has written and do not wish to add anything on my own behalf. I agree that the appeal should be dismissed. (at p554)

STEPHEN J. Having had the advantage of reading the reasons for judgment prepared by each of my brothers Mason and Jacobs I agree that, as they both propose, this appeal should be dismissed. I do so for the several and quite distinct reasons stated in each of their respective reasons for judgment, with each of which I am in agreement. (at p554)

MASON J. The appellant Bistricic commenced an action in the Supreme Court of New South Wales against the respondents who were the owners of the ship John Dory claiming damages for personal injuries sustained by him as a member of the crew when the ship was moored in Sydney Harbour. The respondents then commenced in the same Court an Admiralty action against the appellant seeking limitation of their liability to the appellant under s. 503 of the Merchant Shipping Act, 1894 (Imp.). If the respondents are successful in their action their liability to the appellant will be limited to the amount of $1,489.75 as calculated according to the section as it was originally enacted. If the appellant is successful in his action in recovering damages without limitation of liability under s. 503 the damages will be assessed at a figure substantially exceeding this amount. (at p555)

2. Before 1958 s. 503(1) provided, so far as material:

"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;
...

be liable to damages beyond the following amounts; (that is to say,) (i) In respect of loss of life or personal injury, either alone

or together with loss of or damage to vessels, goods, merchandise, or other things, and aggregate amount not exceeding fifteen pounds for each ton of their ship's tonnage ... "

It is not in question that the 1894 Act is in force in New South Wales. It came into force in the Colony because it applied generally to British possessions: see ss. 735 and 736. It continued in force in the State after Federation (see Union Steamship Co. of New Zealand Ltd. v. The Commonwealth (1925) 36 CLR 130 ) and after the Statute of Westminster Adoption Act 1942 (Cth) (see Asiatic Steam Navigation Co. Ltd. v. The Commonwealth (1956) 96 CLR 397, at pp 403, 414, 422-423 ). (at p555)

3. On 1st August 1958 the Merchant Shipping (Liability of Shipowners and Others) Act, 1958, an Act of the Imperial Parliament, came into force. It was provided by s. 2(4) of this Act that

"Nothing in the said section five hundred and three shall apply to any liability in respect of loss of life or personal injury caused to ... a person who is on board or employed in connection with the ship under a contract of service with all or any of the persons whose liabilities are limited by that section, if that contract is governed by the law of any country outside the United Kingdom and that law either does not set any limit to that liability or sets a limit exceeding that set to it by that section." (at p555)

4. It is common ground that the appellant's contract of service was governed by the law of New South Wales and therefore by the law of a country outside the United Kingdom. (at p555)

5. The issue for decision is whether s. 2(4) of the 1958 Act is a law in force in New South Wales. In the Supreme Court, Samuels J. at first instance (1974) 2 NSWLR 143 , and subsequently the Court of Appeal in a unanimous decision (1975) 2 NSWLR 201 , decided that s. 2(4) was not such a law. The question for us is whether their Honours were correct in so deciding. (at p556)

6. Section 4 of the Statute of Westminster, 1931, adopted by the Statue of Westminster Adoption Act 1942, provides that no statute of the Imperial Parliament passed thereafter "shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion", unless it contains a declaration required by that section. However, this provision must be read with s. 9(2) of the statute which provides:

"Nothing in this Act shall be deemed to require the concurrence of the Parliament or Government of the Commonwealth of Australia in any law made by the Parliament of the United Kingdom with respect to 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 any case where it would have been in accordance with the constitutional practice existing before the commencement of this Act that the Parliament of the United Kingdom should make that law without such concurrence." (at p556)

7. The case was argued on the footing that s. 4 has no application to the Australian States and that a statute of the United Kingdom Parliament, not containing the declaration required by s. 4, may nevertheless apply in the States. It is convenient to deal with the case on this basis. The principal question for decision then is one of construction: is s. 2(4) intended to apply to New South Wales? (at p556)

8. Reference should be made to two provisions in the 1958 Act apart from s. 2(4). First, s. 10 which provides that the Act extends to Northern Ireland, and secondly, s. 11 which provides:

"(1) Her Majesty may by Order in Council direct that the provisions of this Act, and (so far as they do not so extend apart from the Order) the existing limitation enactments, shall extend, with such exceptions, adaptations and modifications as may be specified in the Order, to - (a) the Isle of Man; (b) any of the Channel Islands; (c) any colony or any country or place outside Her Majesty's dominions in which for the time being Her Majesty has jurisdiction, or any territory consisting partly of one or more colonies and partly of one or more such countries or places. (2) In this section 'the existing limitation enactments' means Part VIII of the Merchant Shipping Act, 1894, section two of the Merchant Shipping (Liability of Shipowners and others) Act, 1900, and any incidental or supplementary provisions of any enactment applying the said Part or section." (at p557)

9. The reference in s. 11 to "any colony" has no application to the Australian States for the Act is to be read in the light of another provision in the Statute of Westminster, s. 11, which provides:

"Notwithstanding anything in the Interpretation Act, 1889, the expression 'Colony' shall not, in any Act of the Parliament of the United Kingdom passed after the commencement of this Act, include a Dominion or any Province or State forming part of a Dominion."

Nor is New South Wales a place outside Her Majesty's Dominions. Consequently s. 11 of the 1958 Act does not give it an application in New South Wales. (at p557)

10. The legislative policy which underlies s. 11 of the Statute of Westminster is as important as the language of the section. This policy, which has evolved over the long history of constitutional development leading to responsible government, legislative autonomy and Australian nationhood, is that a statute of the United Kingdom Parliament, if it is intended to apply to an Australian State, will be expressed to apply to that State. The case might be disposed of on the simple ground that the 1958 Act makes no mention of the Australian States but, as it happens, the presence of s. 10 and more particularly of s. 11 in the 1958 Act makes it perfectly plain that its operation is confined to Britain except in so far as provision is otherwise made by ss. 10 and 11 for a more extended operation. There may be, as the appellant suggests, special reasons which made it necessary or expedient to state specifically that the statute was to apply to Northern Ireland, the Channel Islands and the Isle of Man, but this in itself furnishes no reason for thinking that the 1958 Act was to have an operation wider than its provisions explicitly claimed for it. Moreover, the presence of s. 11, applying as it does to colonies generally, cannot be explained, as the appellant would have it, by a desire to overcome difficulties that might otherwise arise in the application of the Act to colonies governed in the exercise of the prerogative. (at p557)

11. The appellant's case for saying that the 1958 Act has an unexpressed application to the Australian States, chiefly rests on the proposition that because the 1894 Act enunciated the law for New South Wales any amendment to that Act should be approached on the footing that it was intended to amend the law wherever the 1894 Act applied in 1958. If we were to turn our backs on the long history of constitutional development which has taken place since 1894 and on the provisions of the 1958 Act which delimit with some particularity its spheres of operation, this would be an attractive argument. But in the light of all that has happened since 1894 and all that is provided by the 1958 Act the argument is quite unacceptable. (at p558)

12. The appellant made some attempt to bolster his case by referring to s. 12 of the 1958 Act which provides that that Act is to be "construed as one with the Merchant Shipping Acts, 1894 to 1954" and to s. 509 which, like s. 503, is contained in Pt VIII of the 1894 Act. Section 509 provides that Pt VIII is to extend to the whole of Her Majesty's Dominions. However, a provision that two statutes are to be read together does no more than enable one to interpret one statute by reference to the other, in particular to resort to a definition clause contained in the other statute. It is not a provision which enables a court to give a statute a geographical operation which is inconsistent with the intention manifested by its own provisions. (at p558)

13. Another argument advanced by the appellant was that the 1958 Act should be seen as an attempt to maintain uniformity in merchant shipping legislation throughout the British Commonwealth, or throughout those parts of it that are subject to the legislative power of the United Kingdom Parliament. At best this is no more than a speculative consideration which must yield to the interpretation of the Act in accordance with accepted canons of construction. In reality it is an approach that in Australia would promote disconformity rather than uniformity of operation because it is acknowledged that the 1958 Act can have no application to the Commonwealth of Australia. (at p558)

14. Finally, it remains for me to say something of the suggestion made in argument that the appellant as a member of the crew was not a "person being carried in the ship". On this question it was held in Innes v. Ross (1957) SLT 121 , and in my opinion rightly held, that a member of the crew is a person carried in the ship. There is to my mind nothing in the language of the section or in the context or subject matter to indicate that in 1894 the words "any person" were used otherwise than in their natural and ordinary sense or to justify an implication that "any person" meant "any person other than a member of the crew" or that "carried" meant "carried for reward". Indeed, it is to be noticed that "passenger" is defined by s.267 of the 1894 Act so as to include "any person carried in a ship other than the master and crew, and the owner, his family and servants". This section supports the view that a member of the crew falls within the expression "any person carried in a ship". Moreover, as Lord Cameron observed in Innes v. Ross (1957) SLT, at pp 123-124 ,s. 7(1)(f) of the Workers' Compensation Act, 1906 (Imp.) in providing that, subject to a qualification not presently material, any sum payable by way of compensation by the owner of a ship under the Act should be paid in full, notwithstanding anything contained in s.503 of the Merchant Shipping Act, 1894, proceeded upon the assumption that a member of the crew was a person carried in the ship within the meaning of s. 503. Again, his Lordship correctly observed that the judgment of the Judicial Committee in Workmen's Compensation Board v. Canadian Pacific Railway Co. (1920) AC 184 assumed that s. 503 would operate to limit the liability of a shipowner to a member of his crew. (at p559)

15. For these reasons I would dismiss the appeal. (at p559)

JACOBS J. Proceedings were commenced in the Supreme Court of New South Wales in its Admiralty jurisdiction for a declaration that in an action commenced by the appellant in the Common Law Division of the Court the respondents were entitled to limit their liability under s. 503 of the Merchant Shipping Act, 1894 (Imp.) in respect of personal injuries suffered by the appellant while he was being carried in the respondent's ship as a member of the crew and was on board the ship under a contract of service with the respondents. The statement of claim alleged that the occurrence took place without the actual fault or privity of the respondents. The ship was registered in New South Wales and the contract of service of the appellant was governed by the law of New South Wales. The injury was suffered in internal waters of New South Wales. (at p559)

2. The statement of claim alleges that whilst working upon the said ship the appellant fell and his hands became caught between a moving belt and pulley forming part of a motor on the ship. This allegation is made no doubt in order to establish that the damage to the appellant was done by the ship and thus to bring the matter within the jurisdiction in Admiralty which could be exercised by the Supreme Court of New South Wales. The jurisdiction in Admiralty is given and defined by s. 2 of the Colonial Courts of Admiralty Act, 1890 (Imp.) which has applied in New South Wales since an Order in Council in 1911. The jurisdiction is that Admiralty jurisdiction of the High Court of Justice in England as it existed when the 1890 Act was passed. The presently relevant jurisdiction was that given by s. 7 of the Admiralty Court Act, 1861 (Imp.). namely, for damage done by any ship. These words are wide enough to include damage by personal injury but the damage must be done by the ship.

"The word 'done', however, imposes a limit upon the operation of the section and makes it necessary to distinguish between damage simply sustained on or in connection with a ship and damage inflicted by the ship as a thing, so to speak, capable of causing harm." (per Dixon J. in Nagrint v. The "Regis" (1939) 61 CLR 688, at p 693 .)

No question has been raised whether or not the allegation if proved will establish that the damage was done by the ship and it is not necessary to express any opinion thereon. The matter goes only to the form of the proceedings as the claim to limit liability could be raised as a defence in the appellant's action. (at p560)

3. The appellant in his answer to the claim to limit liability alleged facts to bring the case within the provisions of s. 2(4) of the Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (Imp.) which provides:

"Nothing in the said section five hundred and three shall apply to any liability in respect of loss of life or personal injury caused to, or loss of or damage to any property or infringement of any right of a person who is on board or employed in connection with the ship under a contract of service with all or any of the persons whose liabilities are limited by that section, if that contract is governed by the law of any country outside the United Kingdom and that law either does not set any limit to that liability or sets a limit exceeding that set to it by that section." (at p560)

4. The respondents claimed in reply that the appellant's answer, in its reliance on s. 2(4) of the 1958 Act was bad in law. This question was determined by Samuels J. as a preliminary question of law. He found adversely to the appellant upon the ground that s. 2(4) of the 1958 Act did not apply in New South Wales (1974) 2 NSWLR 143 . This conclusion was affirmed by the New South Wales Court of Appeal (1975) 2 NSWLR 201 . (at p560)

5. The question is whether in all the circumstances an intention should be inferred that this sub-section of the 1958 Act was intended to apply or extend to New South Wales. In the case of such a statute as the Imperial Merchant Shipping Act, 1894 which is in effect a code governing merchant shipping and which specifically makes Pt VIII applicable to the whole of Her Majesty's dominions, I do not think that the question whether an amendment thereto applies in New South Wales can be solved by an approach based on any general assumption that if the Parliament of the United Kingdom now intends that a statute shall apply to New South Wales it will expressly say so, or that it will only legislate for New South Wales if it is requested so to do. Such a request need not be recited in the statute as it would need to be if the Imperial legislation were to apply to the Commonwealth of Australia in a way which affected or impinged on the legislative power of the latter: Statute of Westminster, 1931, s. 4 (Imp.). So long as the juridical basis of New South Wales law remains, then, although it may seem to many to be anachronistic in the modern world, it is important that no principle be developed which, in a field where the New South Wales legislature has no, or insufficient, legislative power, would prevent the application in New South Wales of amending laws which modernize or reform provisions of Imperial legislation passed many decades ago. The power given to the New South Wales legislature by s. 735 of the Act is insufficient because it only permits amendment or repeal of provisions of the Merchant Shipping Act, 1894 relating to ships registered in New South Wales. (at p561)

6. It is necessary therefore to examine the nature of the legislation, the apparent reasons for its enactment, and the operation of the Imperial statute in the light of the previously existing Imperial law, Commonwealth law and State law. It must be assumed that the Parliament of the United Kingdom, in amending an Imperial statute such as the Merchant Shipping Act, 1894 had in mind the effect of the amendment in all places where the Merchant Shipping Act, 1894 was prior to the amendment the applicable law, whether or not the assumption is correct in fact. The judicial process of discovering the intention of the legislature where there is a doubt involves an inference of intention depending on the language of the legislation in the light of the circumstances of its enactment and if no particular intention is disclosed by that process, on the convenience which would result on the one hand and the complexities which would result on the other hand if it were held that the legislature intended the amendment either to apply or not to apply. (at p561)

7. I turn therefore first to the language. The noteworthy reference for present purposes is that to the United Kingdom. Part VIII deals with British and foreign ships everywhere in Her Majesty's dominions and prior to the 1958 amendment there was no reference in any substantive provision in Pt VIII to the United Kingdom. There was a reference to the surveyor-general of the United Kingdom in s. 503(2)(c) in connexion with the measuring for tonnage of certain foreign ships and there was then a corresponding reference to chief measuring officer of any British possession abroad. Then in s. 504 there was a reference to the courts in which applications to consolidate claims might be made. There was reference to the nominated courts in England, Ireland and Scotland and a corresponding reference to any competent court in a British possession. Thus the whole of Pt VIII was consistent and uniform in its application throughout Her Majesty's dominions. (at p562)

8. But the reference to the United Kingdom in s. 2(4) of the 1958 Act has a quite different effect. It destroys the consistency and uniformity of application of Pt VIII throughout the dominions. This can be explained by elaborating on the application of the provision. Assume a collision between two ships with personal injuries to members of the crew of each ship. An action is commenced in the United Kingdom for limitation by the owners of both of the ships. On one of the ships the contract of service of the injured plaintiff or plaintiffs is governed by the law of the United Kingdom; on the other it is governed by the law of a country outside the United Kingdom and that law does not set any limit to liability in respect of that injury. The plaintiff or plaintiffs whose service on board their ship was under a contract of service governed by the law of the United Kingdom are still bound by the provisions of s. 503 vis-a-vis their owner. The plaintiffs whose service was on board the other ship are not bound by the provisions of s. 503 vis-a-vis their owner. In other words, s. 2(4) of the 1958 Act discriminates against persons on board a ship under a contract of service governed by the law of the United Kingdom. (at p562)

9. The circumstances of the enactment of s. 2(4) of the 1958 Act are the next relevant matter. Those circumstances show that the purpose was in order to carry into effect the obligations undertaken by the United Kingdom under the 1957 International Convention relating to the Limitation of the Liability of Owners of Sea-going Ships. The United Kingdom was the first signatory and Canada was the second signatory. It is open to any State to accede to the Convention but I understand that Australia has not yet done so. Article I(1) to (3) provides for the limitation of liability and sub-Art. (4) provides:

"(4) Nothing in this Article shall apply: - (a) To claims for salvage or to claims for contribution in general average;

(b) To claims by the Master, by members of the crew, by any servants of the owner on board the ship or by servants of the owner whose duties are connected with the ship, including the claims of their heirs, personal representatives or dependents, if under the law governing the contract of service between the owner and such servants the owner is not entitled to limit his liability in respect of such claims or if he is by such law only permitted to limit his liability to an amount greater than tha provided for in Article 3 of this Convention." (at p563)

10. The first paragraph of Art. 7 is worthy of note.

"This Convention shall apply whenever the owner of a ship, or any other person having by virtue of the provisions of Article 6 hereof the same rights as an owner of a ship. limits or seeks to limit his liability before the Court of a Contracting State or seeks to procure the release of a ship or other property arrested or the bail or other security given within the jurisdiction of any such State." (at p563)

11. The purpose of s. 2(4) of the 1958 Act thus becomes quite clear. It was intended to apply only to the United Kingdom. If it had been intended to apply to all the countries to which Pt VIII applied it would not have referred to "any country outside the United Kingdom" but to "any country outside the places to which Part VIII of the Act applies". The intention was to exclude a person in the position of the appellant from the benefit of its provisions, at least so long as New South Wales was bound by Pt VIII of the Merchant Shipping Act, 1894. New South Wales could cease so to be bound not only as a result of an Imperial Act but also if Australia acceded to the Convention, enacted its own limitation provisions and, contrary to the course taken in the United Kingdom, disentitled the owner from limiting his liability in respect of claims by the master, the crew and servants of the owner on board the ship in respect of death or personal injury suffered while being carried in the ship. (at p563)

12. Sections 10 and 11 fall into place when the legislation is thus examined. I would concede the force of the appellant's argument that standing by themselves they can be explained otherwise than by the inference that by their expression of the places where the Act will or may extend or apply an intention is disclosed that the Act will not apply elsewhere in places where the legislation, prior to the amendment, applied. However, this does not assist the appellant. Section 10 provides that the Act extends to Northern Ireland. This is a normal provision in a United Kingdom statute. Northern Ireland is part of the United Kingdom. Nevertheless, Northern Ireland having had its own Parliament until the recent reintroduction of direct rule from Westminster, it became the practice after the Government of Ireland Act, 1920 (Imp.) to make it clear whether the Act of the Imperial Parliament even on a subject of reserved power, as merchant shipping was with limited exceptions s. 4(1)(7), did or did not extend to Northern Ireland. Since this legislation refers to the United Kingdom in terms, once it is made clear that it extends to Northern Ireland, it takes effect according to its terms and without modification or adaptation except the minor modification in s. 10(2). (at p564)

13. Section 11, however, is in a different position. The places there referred to are not within the meaning of the words "United Kingdom" which in every Act passed after 12th April 1927 mean Great Britain and Northern Ireland but not the Channel Islands or the Isle of Man. See Royal and Parliamentary Titles Act, 1927 s. 2(2) (Imp.). And of course the colonies are not within the words. By s. 11(1) Her Majesty may by Order in Council direct that the provisions of the 1958 Act shall extend to these other places "with such exceptions, adaptations and modifications as may be specified in the Order". It appears to me to be clear that what the legislature envisaged was that the provisions of the 1958 Act might be so extended not in order to enable the Act to operate in the named places in a way different from its operation in the United Kingdom but by adaptation and modification to apply in those places in the same way as it applied in the United Kingdom. In other words, the scheme of the provision in s. 2(4) can only be applied in a place outside the United Kingdom when the name of that place can directly or indirectly be substituted for the reference to the United Kingdom in s. 2(4). This is carried into effect by the various Orders in Council under s. 11 which have been made and in which it has been provided by way of adaptation and modification that for any reference in the Act to the United Kingdom there shall be substituted a reference to the place in respect of which the particular Order in Council has been made. See for example S.I. 1964/928 (Jersey), S.I. 1966/ 1406 (St. Helena). There is no way in which this can be done in the case of New South Wales. See Statute of Westminster, s. 11. For these reasons, I therefore conclude that the provision made by s. 2(4) was not intended to apply in New South Wales. (at p565)

14. I would therefore dismiss the appeal. (at p565)

MURPHY J. The question is whether the Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland) is a law in force in New South Wales. (at p565)

2. The United Kingdom Parliament has no power (and had none in 1958) to make a law having force in any part of Australia. (at p565)

3. The suggested basis for such a power is the doctrine of supremacy of the United Kingdom Parliament. This doctrine reflects the constitutional theory and reality that the people of a nation (or their representatives) can not irrevocably bind their successors or even themselves to any constitution or other law. It was submitted that the United Kingdom Parliament therefore retains the power it once had of making laws for New South Wales. (at p565)

4. This doctrine of supremacy is part of the United Kingdom's municipal law (which includes Imperial law applying to colonies). When a colony or territory ceases to be under the political control of the United Kingdom Government, the supremacy ceases, and with it all legislative authority over the former colony or subject territory. If the supremacy were not confined to municipal law, the United Kingdom Parliament would still have the power to legislate for nations such as India and Ireland. (at p565)

5. English colonists brought to New South Wales English law (both statute and common or decisional) that was suitable to the conditions of the colony (see Blackstone's Commentaries, vol.1). Later United Kingdom Acts passed during the colonial era only applied in New South Wales if they were expressly or impliedly intended to, and the constitutional authority for this derived from the United Kingdom Government's paramount force over the colony. The United Kingdom Government was responsible to its Parliament which was then, in relation to Australia, properly described as an Imperial Parliament. (at p565)

6. This paramount force and the Imperial Parliament no longer exist for Australia. Australia is an independent and equal member of the community of nations. Its relationship with the United Kingdom has long ceased to be imperial-colonial and is now international. The change in relationship was not brought about by the Statute of Westminster 1931, which was adopted by the Australian Parliament as a practical measure " to remove doubts as to the validity of certain Commonwealth legislation, to obviate delays occurring in its passage, and to effect certain related purposes" during wartime (see long title and preamble, Statute of Westminster Adoption Act 1942). The Statute of Westminster dealt with constitutional forms, not substance, as was well recognized at the time. (at p566)

7. The United Kingdom has no legislative or executive authority over Australia (or any part of it)9 Any authority over the people of a State would be incompatible with the integrity of the Australian nation which is an indissoluble union of the people of the Commonwealth. The Constitutions of the States now have their source in s. 106 and the following sections of the Commonwealth of Australia Constitution Act (see Barwick C.J. in New South Wales v. The Commonwealth (1976) 135 CLR 337, at p372 ; my judgment in The Commonwealth v. Queensland (1975) 134 CLR 298, at pp 336-337 ). There is no proper constitutional relationship between the governments of the States of Australia and the government of any other country (including the United Kingdom) and therefore any State government which deals with the Queen through the United Kingdom government is acting unconstitutionally. This does not exclude the concept of the indivisible personal link of the Crown which joins the United Kingdom, Australia and other independent nations, nor the participation of the Crown (although nominal) in the legislatures or executive governments of the States. (at p566)

8. Laws enacted at Westminster will not apply of their own force in Australia even if expressed to do so, although there are cases which may be read as suggesting otherwise (see Oteri v. The Queen (1976) 1 WLR 1272; (1976) 51 ALJR 122 ). They may, of course, apply as surrogate law by enactment of competent Australian legislatures, much as the Commonwealth Places (Application of Laws) Act 1970-1973 applies the law of the surrounding State to a Commonwealth place. (at p566)

9. The original authority for our Constitution was the United Kingdom Parliament, but the existing authority as its continuing acceptance by the Australian people. In British Coal Corporation v. The King (1935) AC 500, at p 520 , the Privy Council said:

"It is doubtless true that the power of the Imperial Parliament to pass on its own initative any legislation that it thought fit extending to Canada remains in theory un-impaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute. But that is theory and has no relation to realities."

Any theory which has no relation to realities is suspect. The United Kingdom Parliament could of course repeal the Statute of Westminster. It could repeal the Commonwealth of Australia Constitution Act. But such repeals would have no effect in Australia. Their effect, if any, would be confined to the municipal law of the United Kingdom (including the residual Imperial-colonial system). If the members of the Privy Council thought otherwise (as I think they did), they were wrong. The United Kingdom can have no power to make laws for an independent nation which was a former colony unless its paramount force is restored. (at p567)

10. A parallel relationship is that between Australia and Papua-New Guinea. Until very recently, Australia had power (which it exercised) to make laws having force in that country. Papua-New Guinea is now independent, and Australia has no power (either directly or after repealing independence legislation) to make any law which would be part of that country's law. (at p567)

11. In my opinion (notwithstanding many statements to the contrary) Australia's independence and freedom from United Kingdom legislative authority should be taken as dating from 1901. The United Kingdom Parliament ceased to be an Imperial Parliament in relation to Australia at the inauguration of the Commonwealth. Provisions of statutes directed towards regulating the Imperial-colonial relations (e.g., those in the Colonial Laws Validity Act 1865) then ceased to be applicable. There are strong grounds for considering that cases which held Commonwealth legislation ultra vires because of inconsistency with any law other than the Constitution (e.g., Union Steamship Co. of New Zealand Ltd. v.The Commonwealth (1925) 36 CLR 130 ) were wrongly decided. (at p567)

12. In any event, Australia was independent before 1958. The Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (whatever its interpretation) is therefore not part of the laws of Australia. The question of the continuing operation of the Merchant Shipping Act, 1894 (Imp.) has not been directly raised. It is a re-enactment of the Merchant Shipping Act, 1854 (as amended); its provisions show that it was made for colonial times and it is quite inconsistent with present constitutional relationships in the Commonwealth of Nations. It has been adopted to some extent by the Navigation Act 1912-1973 (Cth). (at p567)

13. There is ample legislative power in the Australian Parliament to deal with liability of shipowners (see ss. 51(i.), (xxix.), (xxxviii.), (xxxix.) and 93 of the Constitution). (at p568)

14. The appeal should be dismissed. (at p568)

Orders

Appeal dismissed with costs.