Kirmani v Captain Cook Cruises Pty Ltd [No 1]

[1985] HCA 8

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

KIRMANI v. CAPTAIN COOK CRUISES PTY. LTD. (No. 1)

(1985) 159 CLR 351

27 February 1985

Constitutional Law (NSW)—Constitutional Law (Cth)—Shipping and Navigation

Constitutional Law (N.S.W.)—Imperial law—Applicability in New South Wales—Imperial Act extending to New South Wales providing limitation of liability for ship-owners—Legislature of British possession empowered to repeal provisions of Imperial Act—Confirmation of Queen-in-Council and proclamation of Queen's approval required—Statute of Westminster—Dominion Parliaments empowered to repeal Imperial Acts in so far as part of "law of Dominion"—Whether independent grant of legislative power to Commonwealth Parliament—Denial of power to Commonwealth to legislate on matter within authority of States not being within authority of Commonwealth—Authority of State to repeal Imperial Act—Commonwealth Act repealing Imperial Act in so far as part of "law of Commonwealth"—Whether repeal in so far as part of law of State—Validity—Merchant Shipping Act 1894 (Imp.), ss. 503, 735—Statute of Westminster 1931 (Imp.), ss. 2,9—Navigation Amendment Act 1979 (Cth), ss. 103, 104(3). Constitutional Law (Cth)—Powers of Commonwealth Parliament—External affairs—Imperial Act extending to States providing limitation of liability for ship-owners—Convention relating to limitation of liability of owners of sea-going ships—Commonwealth Act repealing Imperial Act in so far as law of the Commonwealth—Validity—Whether Act implementing Convention—Merchant Shipping Act 1894 (Imp.), ss. 503(1), 735—The Constitution (63 &64 Vict. c. 12), s. 51(XXIX)—Navigation Act 1912 (Cth), s. 333—Statute of Westminster 1931 (Imp.), ss. 2, 9—Navigation Amendment Act 1979 (Cth), ss. 103, 104. Shipping and Navigation—Passenger injured on vessel in internal waters of New South Wales—Imperial Act extending to New South Wales providing limitation of liability for ship-owners—Commonwealth Act repealing Imperial Act in so far as part of law of Commonwealth—Whether repealed in so far as part of law of State—Merchant Shipping Act 1894 (Imp.), ss. 503(1), 735—Navigation Act 1912 (Cth), s. 333—Statute of Westminster 1931 (Imp.), ss. 2, 9—Navigation Amendment Act 1979 (Cth), ss. 103, 104.

Decisions

GIBBS C.J. On 9 August 1981 the plaintiff, Mrs Kirmani, while being carried on a cruise on Sydney Harbour in "Captain Cook II", a vessel owned by the defendant company, sustained personal injuries which she claims were caused by the negligence of the defendant. She commenced an action for damages against the defendant in the District Court of New South Wales. The defendant, by par.4 of its defence, claimed to be entitled to limit its liability under s.503 of the Merchant Shipping Act 1894 (Imp.). The plaintiff then moved in the District Court to strike out par.4 of the defence on the ground that Pt.VIII of the Merchant Shipping Act, in which s.503 appears, was repealed on 31 January 1981, when s.104(3) of the Navigation Amendment Act 1979 (Cth) ("the Amendment Act") came into force. In reply, the defendant gave notice that it would contend that s.104 of the Amendment Act, on its true construction, does not repeal s.503 of the Merchant Shipping Act in so far as that provision is part of the law of New South Wales and that in any case the Commonwealth had no power to repeal s.503 in its application to the facts of the present case. The defendant company, which is incorporated in New South Wales, alleged that "Captain Cook II" was used only to carry passengers on cruises wholly within the waters of Sydney Harbour and was not a sea-going vessel within the meaning of the International Convention relating to the limitation of the liability of owners of sea-going ships signed at Brussels on 10 October 1957 ("the Convention"). A copy of the Convention is set forth in Sch.6 to the Navigation Act 1912 (Cth), as amended. At that stage of the proceedings this Court ordered that so much of the cause as involves the validity of the repeal of s.503 of the Merchant Shipping Act by s.104(3) of the Amendment Act be removed into this Court. The order for removal seems to be phrased rather too narrowly, since the case concerns the intended effect as well as the validity of s.104 of the Amendment Act.

2. At the hearing before us the Commonwealth intervened to support the validity of s.104. The defendant took no part in the argument, but the States of New South Wales, Queensland and Western Australia submitted that s.104 is invalid and the two first-named States further submitted that the section on its proper construction does not assist the plaintiff.

3. The Amendment Act made extensive amendments to the Navigation Act. By s.65 of the Amendment Act a new Pt.VIII, comprising ss.330-338, was inserted in the Navigation Act. By s.332(3) it is provided that the provisions of Div.1 of that Part (which deals with limitation of liability) do not apply in relation to an intrastate vessel to the extent that a law of a State or of the Northern Territory makes provision giving effect to the Convention in relation to that vessel. By s.333 it is provided that the provisions of the Convention, other than art.1(1)(c), have the force of law as part of the law of the Commonwealth. Section 334 provides that certain ships, not being sea-going ships, are to be treated for the purposes of the division and of the applied provisions of the Convention as though they were sea-going ships. The scope of the section has been enlarged by amendment in 1980 and now requires every ship that is not a ship referred to in pars.(a), (b), (c) or (d) of s.2(1) of the Navigation Act and is not a sea-going ship to be so treated. Those paragraphs refer to:

"(a) a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage;

(b) an Australian fishing vessel proceeding on a voyage other than an overseas voyage;

(c) an inland waterways vessel; or

(d) a pleasure craft".

Subject to that extension, the provisions of Div.1 of Pt.VIII and those of the Convention relate to the limitation of liability by the owners of sea-going ships. Section 103 of the Amendment Act provides as follows:

"In this Part, 'Merchant Shipping Act' 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."

By s.104(2) approval is given to the ratification by Australia of the Convention subject to a reservation excluding the application of art.1(1)(c). Section 104(3) then provides:

"Part VIII of the Merchant Shipping Act is repealed."

4. The first question that arises is whether s.104(3) read together with the definition in s.103 repeals the Merchant Shipping Act in so far as it is part of the law of New South Wales. That depends on the meaning of the words "the law of the Commonwealth" in s.103, since it is only in so far as the Merchant Shipping Act is "part of the law of the Commonwealth" that s.104 applies to it. The expression

repealed."

word "Commonwealth", as used in the Constitution, is itself ambiguous. Various senses in which the word is used in the Constitution have been discussed by commentators from the early days of Federation until the present: see Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), pp.366-368; Harrison Moore, Constitution of the Commonwealth, 2nd ed. (1910), pp.71-74; Professor Lumb, "'The Commonwealth of Australia' - Constitutional Implications" (1979) 10 F.L.R. 287; and Lane, The Australian Federal System, 2nd ed. (1979), pp.958-961. Sometimes (as in the introductory words to ss.51 and 52 of the Constitution) the word refers to Australia as a community united as a nation or a political entity. Sometimes (as in ss.61, 71, 99, 105A, 109, 114, 116) it refers to the central government or its legislative, executive or judicial organs, as contrasted with the States and their organs of government. Sometimes the word is used in a geographical sense: e.g. in ss.51(xx), 51(xxv), 95, 118. It will not always be clear which meaning the word bears in a particular section. Thus, in Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338 there was a division of opinion on this Court as to whether "the purposes of the Commonwealth" in s.81 were limited to the purposes for which the Commonwealth was empowered to make laws.

5. It was submitted on behalf of the Commonwealth in the present case that in the phrase "the law of the Commonwealth" in s.103 of the Amendment Act the word "Commonwealth" is used in the first of those possible senses which I have mentioned, and refers to a law of the whole Australian community, whether the Parliament of the Commonwealth could have enacted it or not. On the other hand, the States of New South Wales and Queensland contended that the effect of s.103 was that s.104 was intended to repeal Pt.VIII of the Merchant Shipping Act only in so far as it dealt with matters within the legislative competence of the Commonwealth and not in so far as it was part of the law of the State. This argument was supported by the fact that the provisions of Div.1 of Pt.VIII of the Navigation Act, inserted by s.65 of the Amendment Act, apply only in relation to sea-going ships and certain other ships, which, by s.334, are to be treated as sea-going ships. The fact that the Amendment Act has replaced the provisions of the Merchant Shipping Act, which applied to ships generally, by provisions which are limited to ships of a particular class suggests, it was submitted, that it could not have been intended that s.104 would effect a complete repeal of Pt.VIII of the Merchant Shipping Act in its application to Australia. The effect of a complete repeal would be to leave a void in some areas previously covered by that Part. Further, the fact that s.104 of the Amendment Act deals both with the ratification of the Convention and the repeal of Pt.VIII of the Merchant Shipping Act shows a recognition that the two things are related. Therefore, it was submitted, Pt.VIII was not intended to be repealed in so far as it dealt with ships other than sea-going ships and ships treated as such by s.334, or in other words in so far as it dealt with matters beyond the legislative competence of the Commonwealth.

6. These arguments, although not negligible, find little support in the words of the Amendment Act themselves. The expression "the law of the Commonwealth" in s.103 is aptly used to refer to the law of the Australian nation, or to the law in force within Australian territory, but it would be straining language to give it the meaning of the law which deals with matters within the scope of the Commonwealth's legislative power. It can hardly be doubted that the words of s.103 echo those of s.2(2) of the Statute of Westminster 1931 (Imp.) which confer on the Parliament of a Dominion power to repeal or amend any Act of the United Kingdom "in so far as the same is part of the law of the Dominion". It appears that the purpose of ss.103 and 104 of the Amendment Act was to exercise to the full whatever power was available under s.2(2) of the Statute of Westminster to repeal the Merchant Shipping Act. It therefore becomes necessary to consider the effect of s.2(2) of the Statute of Westminster in relation both to the interpretation and the validity of ss.103 and 104.

7. The Statute of Westminster is described in its title as "An Act to give effect to certain resolutions passed by Imperial Conferences held in the years 1926 and 1930". Its principal purpose was to give to the Dominions (Canada, Australia, New Zealand, the Union of South Africa, the Irish Free State and Newfoundland) that autonomy and equality of status with each other and with the United Kingdom which had been recognized by the Balfour Declaration of 1926. By a process of gradual development, the status of the Dominions had changed; as a matter of constitutional practice they had come to be regarded, not as colonies, but as sovereign communities.

8. In the first place it was necessary to ensure that the Parliaments of the Dominions were no longer in a state of subordination to the Parliament of the United Kingdom. It was inconsistent with Dominion autonomy that laws passed by the Dominion Parliaments could be rendered invalid if the Parliament of the United Kingdom exercised its power to pass laws extending to the Dominions. It was not, however, desired to extinguish entirely that power of the Parliament of the United Kingdom for it was recognized that in some circumstances it might be necessary for recourse to be had to the power in the interests of the Dominions themselves. Indeed, since that time it has been found necessary, in both Canada and Australia, to seek United Kingdom legislation to bring about changes in the laws that could not otherwise have been effected: see China Ocean Shipping Co. v. South Australia (1979) 145 CLR 172, at pp 211-212, per Stephen J. Indeed, it may still prove necessary to request the Parliament of the United Kingdom to legislate for Australia: see also Bistricic v. Rokov (1976) 135 CLR 552, at p 561, per Jacobs J. What was therefore decided, and was enacted in s.4 of the Statute, was that thereafter no Act of the Parliament of the United Kingdom should extend to a Dominion "as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof". It is unnecessary to consider whether, as Viscount Sankey L.C. thought in British Coal Corporation v. The King (1935) AC 500, at p 520, the power of the Parliament of the United Kingdom to pass on its own initiative any legislation that it thought fit extending to the Dominions remained in theory unimpaired. That proposition has been questioned (see Manuel v. Attorney-General (1983) Ch 77, at pp 104-105) but if it is correct it is right to say, as Viscount Sankey L.C. did, at p.520, "But that is theory and has no relation to realities".

9. The second thing that was necessary to be done to give effect to the autonomy of the Dominions was to remove the fetters on their legislative power which had resulted, or which it was thought had resulted, from their former colonial status. The powers of the Dominion legislatures were subject to the limitations imposed by the Colonial Laws Validity Act 1865 (U.K.), s.2. of which rendered invalid any colonial law which was repugnant to the provisions of any Act of the Parliament of the United Kingdom which extended to the colony, i.e. which was made applicable thereto by express words or necessary intendment. Those powers were also thought to be limited by the doctrine (which I have criticized in Pearce v. Florenca (1976) 135 CLR 507, at pp 514-518, and Robinson v. Western Australian Museum (1977) 138 CLR 283, at pp 303-304) which regarded a colonial legislature as unable to enact laws having extraterritorial operation. These fetters or supposed fetters on the legislative powers of the Dominion Parliaments were removed by ss.2 and 3 of the Statute.

10. We are concerned with s.2 which is in the following terms:

"(1) The Colonial Laws Validity Act, 1865,

shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.

(2) No law and no provision of any law made

after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion."

11. There has been a learned controversy as to the effect of the second part of s.2(2), which provides that the powers of the Parliament of a Dominion shall include the power to repeal or amend any Act of the Parliament of the United Kingdom in so far as the same is part of the law of the Dominion. One view is that that part of s.2(2) is, to use the words of Sir Owen Dixon ("The Statute of Westminster 1931" (1936) 10 A.L.J.Sup. 96, at p.101) "no more than explanatory or epexegetical" of the statement in the first part of the subsection that no future law of the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England. On that view, the second part of s.2(2) does not enlarge the ambit of the powers of a Dominion Parliament, although it removes a restriction on their exercise; it strengthens the powers, but within their existing limits. The other view is that the second part of s.2(2) is an independent grant of power and that it gives to Dominion Parliaments the power to amend or repeal any Act whatever of the United Kingdom Parliament which extends to or applies in the Dominion. The decision of the Privy Council in Moore v. The Attorney-General for the Irish Free State (1935) AC 484 appears to have proceeded on the latter view, although it is not clearly expressed in the judgment. It may have been important for Ireland and for South Africa correctly to resolve this controversy, but as Dixon J. pointed out (loc.cit., at p.106) the question does not seem to be important for Australia. There can be no doubt that s.2(2) does not confer any power to repeal or alter the Constitution or the Constitution Act otherwise than in accordance with the law existing before the commencement of the Statute; s.8 of the Statute expressly so provides. If s.2(2) is a new source of legislative power its effect is controlled by s.9(1) which provides as follows:

"Nothing in this Act shall be deemed to

authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia."

12. The word "authority" in this section must mean power or legislative competence. Dixon C.J. seems to have regarded the word as having that meaning in his reference to the provisions of s.9(1) in Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd. (1959) 103 CLR 256, at p 267. The provisions of s.9(1) contain a clear indication that the Statute of Westminster was not intended to enlarge the legislative powers of the Commonwealth at the expense of the States. The introductory words of s.9(1) show that that subsection is intended to prevail over s.2(2). The effect of the provisions in conjunction is that if, apart from s.2(2), a matter is within Commonwealth legislative power (whether or not it is also within State legislative power), the Commonwealth Parliament may make laws on the matter and such laws will not be bad for repugnancy to the legislation of the United Kingdom or for extraterritoriality. If a matter is within the legislative power of the States, and not within the legislative power of the Commonwealth, s.2(2) does not confer any power on the Commonwealth. If there were matters which are not within either Commonwealth or State authority, s.9(1) would not apply, and it would then be a real question (although one of limited importance) whether s.2(2) is an independent grant of power, or whether it does no more than strengthen existing powers. However I very much doubt whether that third position exists, i.e. whether there are matters which fall outside the authority of both the Commonwealth and the States. I rather think, as Barton J. said in Smith v. Oldham (1912) 15 CLR 355, at p 361, that "the Constitution in the distribution of powers between the Commonwealth and States embraces the whole range of legislative authority within the territorial limits of Australia"; see also per Isaacs J., at p.365. In my opinion the provisions of s.7 (which deals with Canada) and ss.8 and 9 of the Statute sufficiently reveal that the intention of the framers of the Statute was to strengthen the existing powers of the Dominion Parliaments, but was not to affect in any way the relationship between the component entities of those Dominions which were federations - in other words, not to give to the Parliaments of the Commonwealth of Australia and of Canada increased powers at the expense of the States and the Provinces. A similar view appears to have been expressed by Menzies J. and Windeyer J. in Reg. v. Foster; Ex parte Eastern and Australian Steamship Co. Ltd., at pp 300-301 and 306.

13. It was submitted that unless s.2(2) granted a new power, the Parliament of the Commonwealth would have had no power to pass the Statute of Westminster Adoption Act 1942 (Cth), which, by s.3, provided that ss.2, 3, 4, 5 and 6 of the Statute of Westminster are adopted as from 3 September 1939. It was provided by s.10(1) of the Statute of Westminster that none of ss.2, 3, 4, 5 and 6 of the Statute should extend to the Dominions to which that section applied (which included Australia) as part of the law of that Dominion unless that section were adopted by the Parliament of the Dominion and that any Act of such Parliament adopting any of those sections might provide that the adoption should have effect either from the commencement of the Statute of Westminster or from such later date as was specified in the adopting Act. Section 10 itself conferred on the Dominions to which it applied all the power necessary to adopt ss.2, 3, 4, 5 and 6 of the Statute of Westminster.

14. The critical question in the present case is whether the relevant provisions of Pt.VIII of the Merchant Shipping Act dealt with a matter within the authority of the States and, if so, whether it was nevertheless a matter within the authority of the Commonwealth, within the meaning of s.9(1) of the Statute of Westminster. Part VIII deals with a number of matters but we are concerned only with s.503 which provides for the limitation of liability in certain cases of (inter alia) injury caused to a person being carried on a ship whether British or foreign. It extends to the whole of Her Majesty's Dominions: s.509. It accordingly applies to ships engaged in interstate or international trade and to ships which are navigated solely in the internal waters of a State. The limit of the liability of the owner of a ship for injuries sustained in the internal waters of a State is a matter within the competence of the legislature of the State. Of course laws on such a matter would be invalid if repugnant to an Act of the United Kingdom Parliament which extended to the State, since the provisions of the Statute of Westminster were not applied to the Australian States. Such laws would be invalid if repugnant to s.503 of the Merchant Shipping Act unless passed in accordance with s.735 of that Act which enables the legislature of any British possession, by any Act confirmed by Her Majesty in Council, to repeal, wholly or in part, any provisions of that Act (with an immaterial exception) in relation to ships registered in that possession, and which provides further that any such Act shall not take effect until the approval of Her Majesty has been proclaimed in the possession, or until such time thereafter as may be fixed by the Act for the purpose. The reference to the legislature of a British possession does not now include reference to the Parliament of a Dominion (s.5 of the Statute of Westminster) but it does include the legislature of a State. It was submitted on behalf of the Commonwealth that the requirements of confirmation and approval imposed by s.735 mean that it is not within the authority of a State legislature to make a law to repeal s.503. It was further submitted that ships can no longer be registered in a State, since the Shipping Registration Act 1981 (Cth) (which took effect on 25 March 1981) requires all Australian owned ships to be registered under that Act (see s.12) and that s.735 therefore does not give any power to a State legislature.

15. The argument that the repeal of s.503 is not a matter within the authority of the States because of the procedural requirements of s.735 of the Merchant Shipping Act can be answered by saying that the requirement that there should be confirmation and approval before the law takes effect does not mean that the law deals with a matter outside the competence of the State legislature. On the contrary, it rather contemplates that the law is within the authority of the State. The argument that the matter is not within the authority of the State because s.735 confines the State legislative power to ships registered in the possession, and because once the Shipping Registration Act took effect no ships would answer that description (assuming that to be the case), can be answered by pointing out that at the times when the Amendment Act was passed and the plaintiff sustained her injury the Shipping Registration Act was not in force. For that reason it is unnecessary to consider either the validity or the effect of that Act. However there is a more fundamental answer to these arguments. It is that a matter is not outside the authority of the State simply because if, in the exercise of that authority, the legislature of the State passes a law which is repugnant to an Act of the United Kingdom which extends to the State, the result will be that the State law is, by reason of s.2 of the Colonial Laws Validity Act, void to the extent of that repugnancy. The provisions of s.2 of the Colonial Laws Validity Act do not narrow the ambit of the authority of a colonial legislature, although they may render void certain enactments made in the exercise of that authority. In any case, in my opinion, the scheme of the Statute of Westminster indicates that s.9(1) is intended to refer to the ambits of the respective powers of the Commonwealth and the States, as existing at the time when the Statute was passed, and is not directed to the question whether a law within the ambit of those powers is or is not repugnant to a law of the United Kingdom.

16. The question then arises whether the repeal of s.503 of the Merchant Shipping Act, in its application to ships which are on the internal waters of a State at the time when an injury is sustained, and which are not otherwise the subject of activities which would render applicable one or other of the powers of the Commonwealth Parliament, is a matter within the authority of the Commonwealth within s.9(1). On behalf of the Commonwealth it was submitted that the matter is one within the power conferred by s.51(xxix) of the Constitution (the external affairs power), for two reasons. First, it was said that the provisions of s.104(3) of the Amendment Act were reasonably necessary to give effect to the Convention, the ratification of which, as I have said, is approved by the Amendment Act. However the Convention, as its name implies, deals with the limitation of the liability of owners of sea-going ships. No authority is needed to support the statement that a ship which is used entirely within the limits of internal waters, and never goes to sea, is not a sea-going ship. None of the substantive provisions of the Convention deals with the limitation of the liability of the owner of any ship other than a sea-going ship. Article 8 of the Convention provides:

"Each Contracting State reserves the right to

decide what other classes of ship shall be treated in the same manner as sea-going ships for the purposes of this Convention."

That article means that a contracting party is not prevented from treating other ships in the same manner as sea-going ships but it does not require a contracting party to do so. It cannot be said that the Amendment Act, in so far as its provisions relate to ships which are not sea-going ships, conforms to the treaty or carries its provisions into effect, to use the words of Mason J. in The Commonwealth v. Tasmania (1983) 57 ALJR 450, at p 489. To legislate with respect to matters with which a treaty does not deal is not an implementation of the treaty, notwithstanding that the treaty allows a discretion to legislate in that way. There is nothing to suggest that the limitation of the liability of owners of ships that are not sea-going ships is, or even properly could be, a matter of international concern. It is unnecessary to enter upon the controversy as to the scope of the external affairs power, since on no view expressed in this Court, could the argument which I have been considering be accepted.

17. There remains the question whether an Act of the Commonwealth Parliament which repeals an Act of the Parliament of the United Kingdom in so far as it is part of the law in force in Australia is, for that reason alone, a matter with respect to external affairs. The answer is, in my respectful opinion, clearly in the negative. In Madzimbamuto v. Lardner-Burke (1969) 1 AC 645, Lord Reid said, at p 722, that "it has never been doubted that, when a colony is acquired or annexed, following on conquest or settlement, the Sovereignty of the United Kingdom Parliament extends to that colony, and its powers over that colony are the same as its powers in the United Kingdom". There were formerly conventional, and there are now legal, restraints on the exercise of that sovereignty, but in the exercise of the power which the sovereignty conferred laws could be and were made which applied to and extended to the Australian States as part of the law of those States. As the learned authors of Halsbury, 4th ed., vol.6, par.1200, have said:

"There is an important distinction between, on the one hand, United Kingdom enactments which 'apply to' or 'extend to' a dependent or other territory as part of the law only of the United Kingdom (in that the operation of the law in the United Kingdom is predicated on some event, circumstance, person or thing identified by relation to that dependent or other territory), and, on the other hand, enactments which 'apply to' or 'extend to' a dependent or other territory as part of the law of that territory (rather than, or as well as, the law of the United Kingdom)."

This distinction was clearly recognized in the Statute of Westminster: see the third preamble and ss.2, 4 and 10. We are now concerned, as the Statute of Westminster was concerned, with laws of the latter kind - laws that extended to a Dominion as part of the law of that Dominion. Obviously it was not intended by the Statute of Westminster to impair the power of the United Kingdom Parliament to make a law which would extend to a Dominion as part of the law of the United Kingdom (in the sense indicated in the passage from Halsbury), or to enable a Dominion Parliament to repeal or amend an Act of the United Kingdom Parliament which was not part of the law of the Dominion. For example, the Commonwealth Parliament could not repeal the Merchant Shipping Act in so far as it was part of the law of the United Kingdom. The provisions of Pt.VIII of the Merchant Shipping Act extended to the Australian States as part of the law of those States. I would repeat what I said in China Ocean Shipping Co. v. South Australia, at p 194:

"When Pt VIII of the Act of 1894, upon its

enactment, became part of the law of South Australia and of the other Australian colonies, the provisions of that Part did not occupy a separate and exceptional position. They became part of the whole body of the law by which the colony was governed. They were just as much a part of the law of the colony as the principles of common law and equity, the statute law of England enacted before the colony was settled, and the enactments of the colonial legislature."

That statement expresses what I believe to be elementary and fundamental law. I find it impossible to say that an Act which forms part of the whole body of the law of New South Wales is something external to Australia.

18. The fact that the source of the Act was external to Australia does not, in my opinion, alter the position. It is true that relations between Australia and the United Kingdom may properly be described as external affairs. However, in repealing an Act which is part of the law of an Australian State the Commonwealth Parliament is not legislating with respect to its relations with the United Kingdom. It is legislating with respect to the law of an Australian State. The future exercise by the United Kingdom Parliament of its powers in relation to Australia might, I would agree, be described as an external affair. But s.104(3) of the Amendment Act does not deal with the relations between Australia and the United Kingdom. It simply repeals part of an Act of the United Kingdom which had, in accordance with constitutional law and practice, become a part of the law of New South Wales and the other Australian States. Although for some purposes (e.g., in relation to sea-going ships) s.104(3) may be a law with respect to external affairs, it is not such a law in its operation which is material in the present case.

19. There is no analogy between an Act of the Commonwealth Parliament which repeals an Act of the United Kingdom Parliament which is in force as part of the law of a State and an Act of the Commonwealth Parliament which, e.g., forbids an Australian citizen to comply in Australia with the law of another country which purports to extend to Australia but which could operate in Australia, if at all, only as a law of that foreign country. An Act which denies recognition to a foreign law which purports to affect things done in Australia, but which is not part of the law of Australia, is a law with respect to external affairs. An Act which changes the law in force in Australia is not. The great developments that have occurred in the relations between England and Australia have been brought about by constitutional and legal means. We have had no revolution. Nothing that has occurred has eradicated from our laws English statutes which have become embedded in them (Southern Centre of Theosophy Inc. v. South Australia (1979) 145 CLR 246) or has given an alien character to those English statutes which remain as part of our laws.

20. The distinction which I have discussed between Acts of the United Kingdom Parliament which extend to Australia as part of the law of the United Kingdom (and form no part of our law) and those which extend as part of the law of Australia explains the use the expression "part of the law of that Dominion" in s.2(2) of the Statute of Westminster, and the use of the words "law of the Commonwealth" in s.103 of the Amendment Act. The words in the latter section do not import any reference to Commonwealth organs of government or Commonwealth legislative powers. The intention of s.104 is to repeal Pt.VIII of the Merchant Shipping Act in so far as it operates as part of the law within Australia regarded as a polity or as a geographical area (it does not matter which) and therefore in so far as it forms part of the law of New South Wales. For the reasons I have given that intention cannot be fully realised.

21. For these reasons, in my opinion, s.104 of the Amendment Act is invalid in so far as it attempts to repeal the provisions of s.503 of the Merchant Shipping Act in their operation, as part of the law of New South Wales, to an injury sustained on a ship (not being a sea-going ship) within the internal waters of that State.

22. It should not be thought that this conclusion means that there is no power in the New South Wales Parliament to repeal or amend Pt.VIII of the Merchant Shipping Act. The Parliament of New South Wales could have done so with the confirmation and approval of Her Majesty in Council. The State of Western Australia has already received the approval of Her Majesty in Council to a statute which has repealed Pt.VIII of the Merchant Shipping Act in so far as it is part of the law of Western Australia: see Western Australian Marine Act 1982, s.100 and proclamation thereunder made on 21 June 1983. Moreover, it would appear (although we have not heard argument on the point) that the Commonwealth Parliament could, at the request of the State of New South Wales, exercise the power which could have been exercised in 1901 by the United Kingdom Parliament to repeal Pt.VIII of the Merchant Shipping Act in so far as it is part of the law of New South Wales: see s.51(xxxviii) of the Constitution. But New South Wales has not requested or consented to the exercise of that power.

23. I would remit the matter to the District Court with a direction that the application to strike out par.4 of the defence should be refused.

MASON J. There has been removed into this Court so much of the cause pending in the District Court of New South Wales as involves the validity of the repeal of Pt VIII of the Merchant Shipping Act 1894 (Imp.) by s.104(3) of the Navigation Amendment Act 1979 (Cth) ("the Act"). An issue which arises in the cause is whether the repeal affects the provisions of Pt VIII in their application to a ship presumably registered in New South Wales engaged in a pleasure cruise wholly within the waters of that State, namely Sydney Harbour.

2. The effect of the repeal of Pt VIII of the Merchant Shipping Act brought about by s.104(3) hinges partly on the definition of "Merchant Shipping Act" in s.103 of the Act which, when read with s.104(3), confines the repeal to the Imperial Act "in so far as that Act as so amended, or otherwise affected in its operation, is part of the law of the Commonwealth". There is a question as to what is meant by the words "is part of the law of the Commonwealth". The answer to this question must be deferred. It is necessary, first, to establish the effect of the Statute of Westminster 1931 (Imp.) ("the Statute") which was adopted by the Statute of Westminster Adoption Act 1942 (Cth), for the repeal of Pt VIII of the Merchant Shipping Act is based upon the provisions of the Statute, the language of s.103 of the Act being a reflection of that of s.2(2) of the Statute.

3. The principal object of the Statute, confirmed by its long title and its recitals, was to give effect to the relationship between the United Kingdom and the self-governing Dominions expressed in the Balfour Declaration at the Imperial Conference of 1926 and to remove legal restraints which inhibited the powers of the Dominion Parliaments and were inconsistent with the existence of the relationship described in the Declaration. The Declaration described the United Kingdom and the self-governing Dominions in these terms:

"They are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations."

The chief legal restraints to which the Statute was directed were the Colonial Laws Validity Act 1865 (Imp.) and the legal supremacy of the United Kingdom Parliament. Although the provisions which the Statute made with respect to these matters were sufficient to achieve legal autonomy for other Dominions, they fell short of achieving the same measure of legal autonomy in the case of Australia. This was because s.2 of the Statute did not apply to State legislation or to State legislatures and there was no counterpart in the case of Australia to s.7(2) which extended the provisions of s.2 to Provincial legislation and Provincial legislatures in the case of Canada.

4. For the purposes of this case two problems are presented by the concluding part of s.2(2) which includes within the powers of a Dominion Parliament "the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion". Initially there is the question of what is meant by the expression "part of the law of the Dominion". It may mean either the law in force in the territory constituting the Dominion or the law falling within the powers of the Dominion Parliament. The same or a virtually identical expression appears in the third recital, s.4 and s.10(1). In each instance the words appear to be used in the first rather than the second sense. Indeed, the operation of s.4 and the primary object of the statute in giving effect to the Balfour Declaration would be gravely compromised if the expression were to be given the more restricted meaning. The Reports of the Imperial Conferences of 1926 and 1930, as well as the Report of the Conference on the Operation of Dominion Legislation in 1929 make it clear that the expression was designed to identify Imperial laws which were part of the law in force in the Dominion and enforced by its courts, as distinct from laws enacted by the United Kingdom Parliament which regulate conduct of its citizens in that Dominion, laws which would not be enforced by the courts of the Dominion.

5. By way of illustration, the draft of what is now s.4 of the Statute which had been recommended by the Conference on the Operation of Dominion Legislation was amended by the Imperial Conference of 1930. The initial draft merely provided that no Act of the Parliament of the United Kingdom should extend to a Dominion. The amendment added the words "as part of the law in force in that Dominion", thereby giving expression to the concept expressed in slightly different words in the then existing draft of what became s.2(2) of the Statute. The reason stated in the Report for making the amendment was that the United Kingdom delegates were apprehensive lest the clause in its unamended form should have the effect of preventing an Act of the United Kingdom Parliament passed thereafter from having the operation which the legislation of one State normally has in relation to the territory of another. In consequence of an expressed concern on the part of some Dominions that the acceptance of the Dominion might imply the recognition of a right of the United Kingdom Parliament to legislate in relation to a Dominion (otherwise than at the request and with the consent of the Dominion) in a manner which, if the legislation had been enacted in relation to a foreign state, would be inconsistent with the principles of international comity, it was agreed that the draft as amended did not imply, and was not to be considered as implying, the recognition of any such right. In the event s.4 of the Statute for the sake of consistency was expressed so as to conform with the formula used in the third recital, s.2(2) and s.10(1). But there can be no doubt that the words chosen were designed in all their applications to refer to the law in force in the territory constituting the Dominion.

6. The second problem presented by the concluding words of s.2(2) is that they are susceptible of two interpretations. The provision may be no more than explanatory of the earlier part which provides that no future law of the Parliament of the Dominion shall be void or inoperative on the ground that it is repugnant to the law of England. On the other hand, it may mean that the Parliament of a Dominion shall have an independent power to repeal or amend an Imperial statute operating in the Dominion simply because it is an Imperial statute. Sir Owen Dixon, though favouring the first interpretation, considered that it was foreclosed by the decisions of the Privy Council in Moore v. The Attorney-General for the Irish Free State (1935) AC 484, and British Coal Corporation v. The King (1935) AC 500 (see his article "The Statute of Westminster 1931", (1936) 10 Australian Law Journal Supplement 96).

7. To the reader familiar with the federal Constitutions of Canada and Australia and the distribution of powers which they make between the central and constituent legislatures it would be natural to read the provision, as Sir Owen Dixon read it, "as doing no more than removing from the legislative power of the Dominion the restriction on its exercise which the existence of the Imperial statute might impose" (p.101). So understood, the subsection eliminates the restriction constituted by the existence of the Imperial statute on the exercise of legislative power by a Dominion Parliament without affecting the distribution of legislative powers brought about by the Constitutions of Canada and Australia. This reading of s.2(2) is supported to some extent by the Reports of the Imperial Conferences which do not indicate any intention to interfere with the existing division of legislative powers under federal Constitutions. Moreover, the marginal note, "Validity of laws made by Parliament of a Dominion", tends to suggest that the subsection is merely directed to the validation of Dominion legislation and that it does not confer legislative powers on a Dominion Parliament on a matter not committed to it by the Dominion Constitution.

8. However, to the reader who seeks to apply s.2(2) to a unitary constitution the critical provision assumes a different complexion. He naturally reads the words as enlarging the legislative powers of the Dominion Parliament for there is nothing in the language which explicitly gives the provision the character of an explanatory statement of what has gone before. That part of the subsection which provides:

"No law ... shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom ..."

effectively excluded the common law doctrine of repugnancy. There was therefore no point in making additional provision by specifically granting a power to repeal or amend an Imperial statute extending to the Dominion unless the object of the grant was to bring that repeal or amendment within the ambit of the legislative powers of the Dominion Parliament, that is, to make repeal or amendment a subject matter within legislative power.

9. Viewed in isolation, par.51 of the Report of the Conference on the Operation of Dominion Legislation in 1929 might be thought to point to the opposite conclusion. It recommended that the Statute should contain:

"... a substantive enactment declaring the powers of the Parliament of a Dominion, lest a simple repeal of the Colonial Laws Validity Act might be held to have restored the old common law doctrine."

i.e. the doctrine of repugnancy. But par.57 of the Report went on to say:

"If the above recommendations are adopted, the acquisition by the Parliaments of the Dominions of full legislative powers will follow as a necessary consequence."

It was evidently considered that the exclusion of the doctrine of repugnancy should be accompanied by a positive grant of legislative power bringing the repeal or amendment of an Imperial statute within the ambit of legislative competence of a Dominion Parliament.

10. Sections 7, 8 and 9 of the Statute appear to proceed on the assumption that s.2(2) has this broader meaning or that it might be so interpreted. On the narrower interpretation of s.2(2) favoured by Sir Owen Dixon, these sections were unnecessary. On his view the subsection would not have authorized the repeal or amendment by the Dominion Parliament of the Canadian and Australian Constitutions or Imperial statutes dealing with matters within the exclusive legislative competence of the Canadian Provinces or the Australian States. It would perhaps be unwise to set too much store on this argument. In the case of a statute of this kind it is understandable that provisions might be included for more abundant caution to guard against the possibility that s.2 might be given an interpretation which was not intended.

11. Nevertheless on balance the arguments favouring the broad interpretation of s.2(2) are the more persuasive. It is an interpretation which gives effect to the language of the subsection according to its natural and ordinary meaning and attributes to it an operation which makes it part of a coherent statutory scheme in which it is the function of ss.7(3) and 9(1) to preserve the legislative powers of the Canadian Provinces and the Australian States and to ensure that the grant to the Dominion Parliaments of legislative power to repeal and amend an Imperial statute would not authorize the central legislature to make laws on matters within the exclusive competence of a constituent legislature. Furthermore, this interpretation much more effectively achieves the object of the Statute by conferring a very wide power of legislation on Dominion Parliaments, subject of course to the protection for which ss.7(3) and 9(1) provide.

12. Having reached this conclusion I have no need to explore the reasoning of the Privy Council in the two decisions which Sir Owen Dixon regarded as vindicating the broad interpretation of s.2(2). For my part I doubt whether British Coal Corporation throws much light upon the question. Moore stands in a different position. As I understand the decision its effect was to endorse the broad view of the subsection. Their Lordships rejected the argument (a) that the Irish Parliament lacked power under its Constitution, granted by an Imperial Act, to enact the Constitution (Amendment No. 22) Act 1933 amending Art. 66 of the Constitution so as to terminate the right of appeal to the Privy Council, and (b) that s.2 of the Statute did not extend the powers of the Dominion Parliament but merely removed certain restrictions (see p.487). Viscount Sankey L.C.'s answer to the argument was that, were it not for s.2 of the Statute, the Irish Parliament would not have had power (p.497) and that s.2 conferred the necessary power (p.498).

13. This brings me to s.9(1) of the Statute. It provides:

"Nothing in this Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia."

14. Section 9(1) is not as restrictive as s.7(3), the comparable provision applying to Canada. Whereas s.7(3) confines the Parliament of Canada to the enactment of laws in relation to matters within its competence, s.9(1) only excludes the Commonwealth Parliament from making laws on any matter within the authority of the States, not being a matter within the authority of the Commonwealth Parliament or Government. The language of s.9(1) is wide enough to permit the Commonwealth Parliament in exercising the power conferred by the concluding part of s.2(2), according to its broad interpretation, to repeal or amend an Imperial statute on a matter falling outside the legislative powers of the Parliament under the Constitution and outside those of the States.

15. It is evident from the very presence and terms of s.9(1) that in a case where the repeal or amendment of an Imperial statute stands outside the legislative powers of the Parliament under the Constitution and within those of the States, the power conferred by the last part of s.2(2) does not relevantly bring the repeal or amendment within the authority of the Parliament. The reference in the subsection to the authority of the Parliament or Government of the Commonwealth is a reference to their powers considered apart from those conferred by the Statute itself, the apparent object of the subsection being to ensure that the operation of the Statute did not result in an accretion of Commonwealth power to the detriment of the powers possessed by the States.

16. At this point it is convenient to notice, if only to dismiss, the suggestion that s.8 of the Statute prevents the Commonwealth Parliament from acquiring the wide power to repeal, which in my view was conferred upon it by s.2(2). The suggestion is that the Commonwealth Parliament contravened s.8 through the medium of the Statute of Westminster Adoption Act in that it altered the Constitution by giving the Parliament a head of legislative power in addition to those given by the Constitution. The point is that the power to repeal is conferred by the Statute not by the Statute of Westminster Adoption Act.

17. If the repeal of Pt VIII of the Merchant Shipping Act can be sustained as an exercise of the legislative power conferred by s.51(xxix) of the Constitution, it is unnecessary to decide whether a State Parliament has power to repeal Pt VIII. I have little doubt that the power conferred by s.735 of the Merchant Shipping Act on the Parliament of a State as the legislature of a British possession would enable the State Parliament to repeal the provisions of Pt VIII in their application to a ship registered in the State engaged in a pleasure cruise within the waters of the State and that, accordingly, the repeal is within the authority of the State under s.9(1) of the Statute notwithstanding that the repeal requires the confirmation of the Privy Council and the assent of Her Majesty under the section. However, it is a more difficult problem to ascertain the scope and content of the power conferred by s.736 and I refrain from discussing it. In passing it should be noted that the reference to the legislature of a British possession in ss.735 and 736 is not to be construed as a reference to the Parliament of a Dominion - see s.5 of the Statute.

18. I turn to the external affairs power. The submission is that the repeal of an Imperial statute applying to Australia, even on a topic which lies otherwise outside the ambit of Commonwealth legislative power, constitutes an external affair. This, so it is said, is because either the continued application of the Imperial statute in Australia or the repeal of the statute is an element in the relationship between the United Kingdom and Australia and thus constitutes an external affair.

19. The proposition that the Commonwealth Parliament could in the exercise of the power conferred by s.51(xxix) repeal a provision in the Merchant Shipping Act in its application to intra-State shipping in Australia would have excited astonishment in 1900. To minds attuned to the legal supremacy of the United Kingdom Parliament, the status of a colony as a dependency of the British Empire, s.2 of the Colonial Laws Validity Act and the doctrine of repugnancy, and aware of the Commonwealth Parliament's lack of legislative power with respect to intra-State shipping, it was unthinkable that the Parliament could repeal by resort to the external affairs power an Imperial statute expressed to apply to Australia or to the colonies generally. However, now that these obstacles to the exercise of the power have been outgrown or eliminated, the question must be considered in a new light.

20. Discussion of it necessarily begins with the observation that the expression "external affairs" was adopted in preference to "foreign affairs", so as to make it clear that the relationships between the Commonwealth and other parts of the British Empire, especially the United Kingdom, were comprehended (R. v. Burgess; Ex parte Henry (1936) 55 CLR 608, at pp 684-685, per Evatt and McTiernan JJ; see also p 643, per Latham C.J.). The characteristics of Australia's relationship with the United Kingdom distinguish it from Australia's relationships with other countries. We have continuing constitutional and legal ties with the United Kingdom and with the Crown which have no counterpart in our relationships with other countries except in so far as our membership of the British Commonwealth of Nations unites us with other nations having ties with the United Kingdom. The central feature of this relationship is that by virtue of the legal supremacy of the United Kingdom Parliament certain Imperial statutes operate proprio vigore in this country and form part of the law in force in Australia. The consequence is that the repeal or amendment of such a statute is an important element in our relationship with the United Kingdom.

21. If the agents of a foreign power attempted to disrupt or interfere with Australian domestic affairs, there could be no doubt that their activities and the need to prohibit them would constitute an external affair sustaining an exercise of the power conferred by s.51(xxix) on the footing that the activities and the need to bring them to an end constituted elements in Australia's relationship with that foreign power (see Zines, The High Court and the Constitution (1981), p.239). And if we look beyond executive acts to a law of a foreign country expressed to apply to conduct in Australia and enforceable by the courts of that foreign country in relation to such conduct, though not forming part of the law in force in Australia applied by Australian courts, we perceive with even greater clarity that the operation of the foreign law here is an intrusion into Australia's domestic affairs which is of necessity an element in Australia's relationship with that foreign country. And it is an element in that relationship which constitutes an external affair supporting an exercise of the s.51(xxix) power in the form of legislation prohibiting compliance, excusing non-compliance or perhaps requiring compliance with the foreign law. I note in passing that the Foreign Antitrust Judgments Enforcement (Restriction of Enforcement) Act 1979 (Cth) which, as its title indicates, makes provision for restricting the recognition and enforcement in Australia of certain foreign judgments obtained in antitrust proceedings, appears to have been based, not so much on the external affairs power, as on the trade and commerce and corporations powers.

22. The distinctive feature of the present case is that the Merchant Shipping Act does form part of the law in force in Australia. It is part of our domestic law, though emanating from the United Kingdom Parliament. The question then is whether the domestic operation of the law denies to its repeal the character of an external affair. In some respects this question is similar to that considered in Koowarta v. Bjelke-Petersen (1982) 56 ALJR 625, where the Court rejected the argument that the relevant law was not with respect to external affairs because it dealt with internal affairs. As I observed (at pp.649-650), it is immaterial that the law deals with internal affairs if the matter with which it deals is also an external affair, the point being that an affair will often possess qualities or aspects which are external as well as internal.

23. The breadth and complexity of our relationship with the United Kingdom, including the circumstance that statutes of the United Kingdom Parliament have continued to operate here as part of domestic law does not mean that the relationship or the elements in it are insusceptible of becoming an external affair. They mean that the relationship has a greater capacity to generate matters of external affairs than our less complex relationships with other countries. And they mean that an element in that relationship is none the less an external affair even though it has important domestic aspects.

24. To emphasize the domestic operation of the Imperial statutes as part of Australian law serves only to obscure the central feature of what is taking place, viewed from the vantage point of Australia's relationship with the United Kingdom, that is, the repeal of a law enacted for Australia by the Parliament of that country. If an Imperial statute operating in Australia were to be repealed by the United Kingdom Parliament at the request and with the consent of the Commonwealth it would appear with pristine clarity that the repeal constituted an external affair. It would involve representations to and negotiations with the United Kingdom government and the introduction and enactment of the necessary leglislation in the United Kingdom Parliament - activities taking place outside Australia on a government to government basis, culminating in a law which would terminate the operation of the earlier Imperial statute in Australia. If instead, the repeal is undertaken by the Commonwealth Parliament, that repeal is an exercise of the legislative power with respect to external affairs. This is because the repeal brings to an end the operation in Australia of a law enacted for this country by the legislature of the United Kingdom and by enacting the repeal the Commonwealth Parliament manifests in authoritative and unequivocal terms Australia's determination that the United Kingdom law shall no longer be maintained as part of Australian law.

25. At first glance it may be thought that this conclusion attributes to the Statute of Westminster an anomalous operation. It enables the Commonwealth Parliament to repeal a provision in an Imperial statute without conferring on that Parliament power to replace it with a positive provision on the topic with which it deals. But more mature reflection reveals that the result is in conformity with the attainment of legal autonomy on the part of Australia, one of the primary objects of the Statute. By an exercise of its external affairs power the Commonwealth could repeal an Imperial statute applying to Australia, even if the statute deals with a topic with respect to which the States alone possess legislative power, thereby opening the way to State legislation on the topic free from the fetters created by the repealed law. If it were otherwise the repeal of an Imperial statute of the kind in question could only be achieved by a law of the United Kingdom Parliament, an outcome which surely would have been greeted with surprise by the authors of the Statute.

26. Having concluded that the Commonwealth Parliament has power to repeal Pt VIII of the Merchant Shipping Act, I return to the question of construction of s.103 of the Act, mentioned at the beginning of this judgment, arising from the use of the words "is part of the law of the Commonwealth". As I said earlier, the words in question reflect the language of s.2(2) of the Statute. Accordingly, they must carry a meaning which conforms to the meaning which I have ascribed to the words "part of the law of the Dominion". In the result s.103 must be read as referring to the provisions of Pt VIII of the Merchant Shipping Act in so far as that Act as so amended or otherwise affected in its operation, is part of the law in force in the Commonwealth of Australia.

27. In the result the defendant cannot rely on s.503 of the Merchant Shipping Act and I would strike out par.4 of the notice of grounds of defence.

MURPHY J. The plaintiff claims damages for personal injury sustained while on a pleasure cruise on Sydney Harbour with the defendant company. The defendant asserts that its liability is limited by the Merchant Shipping Act 1894 (Imp.) and further that the Navigation Amendment Act 1979 (Cth) which purported to repeal the relevant parts of the U.K. legislation is invalid.

Australian Sovereignty

2. In Bistricic v. Rokov (1976) 135 CLR 552 ("Bistricic"), Robinson v. Western Australian Museum (1977) 138 CLR 283 and China Ocean Shipping Co. v. South Australia (1979) 145 CLR 172 ("China Ocean Shipping"), I set out my opinion on the emergence of Australian sovereignty and the political relationship between Australia and Britain.

3. On the inauguration of the Commonwealth on 1 January 1901, British hegemony over the Australian colonies ended and the Commonwealth of Australia emerged as an independent sovereign nation in the community of nations. From then, the British Parliament had no legislative authority over Australia. The authority for the Australian Constitution then and now is its acceptance by the Australian people. Any continuing authority over the Australian people by the British Parliament would be inconsistent with Australia's sovereignty; Australia would not be a legitimate member of the community of nations. The notion that the States of Australia are still colonies subject to the legislative authority of the British Parliament is absurdly incompatible with their status as constituent parts of the Commonwealth of Australia. These are not novel propositions. In Baxter v. Commissioners of Taxation (N.S.W.) (1907) 4 CLR 1087, Chief Justice Griffith said:

"The purpose of the Constitution was the creation of a new State, the Commonwealth, intended to take its place amongst the free nations, with all such attributes of sovereignty as were consistent with its being still 'under the Crown'. It is essential to the attribute of sovereignty of any Government that it shall not be interfered with by any external power. The only interference, therefore, to be permitted is that prescribed by the Constitution itself. A similar consequence follows with respect to the constituent States. In their case, however, the Commonwealth is empowered to interfere in certain prescribed cases" (p.1121).

and

"The King is the common head of the United Kingdom and of all the self-governing dominions, and the legislature of each of these dominions has, subject to its own Constitution, full autonomy. It seems strange that in this year 1907, when the world is resounding with praises of the system of the British Empire, which allows its different members to enjoy this freedom and independence, we should be asked to decide solemnly that the idea is an entire delusion" (p.1126).

4. The British Parliament can pass a law to regulate rights and liabilities between persons in Australia or anywhere else. This law would be perfectly valid in Britain and would be given effect to by British courts as far as they could. In Australia or elsewhere (apart from those places controlled by Britain, such as Hong Kong and other colonies), it would be of no legal effect, except to the extent that those countries allowed it. To contend otherwise denies the sovereignty of other nations and attributes to the British Parliament some divine right to legislate for other peoples.

5. Equally Australia can pass laws to regulate rights and liabilities in other countries, including Britain. Except to the extent that the other countries allow, such laws are of no legal effect in those other countries. Australia has passed laws to regulate the conduct of its citizens elsewhere (see Crimes (Overseas) Act 1964 (Cth) as amended). The Australian Parliament could repeal the legislation providing for the independence of Papua New Guinea. This repeal would be valid in Australia but of no consequence to the courts and people of Papua New Guinea. To an independent sovereign nation, another country's legislation is not binding. The people of Papua New Guinea might well regard such repeal as either a breach of comity, or dismiss it as a "tidying up" of the Australian Statutes to remove legislation which served no useful purpose. Equally a repeal by the British Parliament of the Commonwealth of Australia Constitution Act would, of itself, have no legal effect in Australia.

6. Under Chapter I of the Constitution the legislative power of the Commonwealth is vested in the Parliament of the Commonwealth, not in the British Parliament. By s.51 of the Constitution the Parliament's power to make laws, on certain enumerated matters, is subject to the Constitution. It is not "subject to the Constitution and also to the Merchant Shipping Act, the Colonial Laws Validity Act or any other Act which the British Parliament may pass in regard to Australia". A number of cases in this Court have incorrectly interpreted the Constitution as if it did so read (see, for example, Union Steamship Co. of New Zealand Ltd v. Commonwealth (1925) 36 CLR 130).

Effect of the Statute of Westminster

7. It follows that the Statute of Westminster 1931 (U.K.) and the Statute of Westminster Adoption Act 1942 (Cth) did not affect the legislative powers of the Commonwealth Parliament. That legislation dealt with form not substance (see Bistricic at pp.565-566; China Ocean Shipping at pp.236-239).

External Affairs Power (Constitution s.51(29))

8. From its inception the Commonwealth Parliament had power to legislate extra-territorially (New South Wales v. The Commonwealth (1975) 135 CLR 337, 360, 469-471, 497, 502-504 (the "Seas and Submerged Lands" case). Even before 1901, Australian colonies could legislate extra-territorially (Wacando v. The Commonwealth (1981) 148 CLR 1, 21, 28).

9. The purported operation in Australia of legislative, executive or judicial measures which derive their authority from the legislative, executive or judicial power of any other country is an external affair, as well as an internal affair, of Australia. The fact that something can be characterized as an internal affair as well as an external affair is no barrier to the Commonwealth exercising its power under s.51(29) (see Koowarta v. Bjelke-Petersen (1982) 56 ALJR 625, 649, 656, 663-664; (1982) 39 ALR 417, 460-461, 472, 485-487; Commonwealth v. Tasmania (1983) 57 ALJR 450, 484, 505, 527-528, 543; (1983) 46 ALR 625, 688, 728, 771-774, 802).

10. The external affairs power enables the Commonwealth Parliament to declare inoperative any law passed prior to 1 January 1901 which purports to apply in Australia by authority of the British Parliament. Equally, that power exists with respect to any law passed by the British Parliament after 1 January 1901. Of course certain laws are preserved by the Constitution itself (see Chapter V, The States). The external affairs power to repeal or declare such a law inoperative exists even if such law is on a subject over which the Commonwealth has no other legislative power. A State to which the law or purported law applied can then make its own provision, free of any possible conflict with foreign laws. As Chief Justice Latham in The King v. Burgess; Ex parte Henry (1936) 55 CLR 608 emphasised:

"...the power to legislate with respect to external affairs is a power expressly conferred upon the Commonwealth Parliament by the Constitution. No question of interference with the rights of the States arises" (p.636) (my emphasis).

Conclusion

11. The challenged provisions of the Navigation Amendment Act 1979 are valid. Paragraph 4 of the notice of grounds of defence should be struck out and the matter remitted to the the District Court.

WILSON J. In this action the plaintiff seeks damages for personal injuries alleged to have been suffered by her whilst she was a passenger on the defendant company's vessel during a pleasure cruise on Sydney Harbour in August 1981. The vessel operates exclusively within Sydney Harbour providing cruises from Circular Quay for fare-paying passengers. In its defence, the company relied, inter alia, on s. 503 of the Merchant Shipping Act 1894 (Imp.) ("the Imperial Act") to limit its aggregate liability to an amount not exceeding fifteen pounds sterling for each tonne of the vessel's tonnage. The plaintiff thereupon sought to have struck out that part of the defence, claiming that, in its application to Australia, s. 503 had been repealed by s. 104(3) of the Navigation Amendment Act 1979 (Cth) ("the Act") with effect from 31 January 1981. Before the application to strike out was heard, this Court, on the application of the Attorney-General of the Commonwealth, removed into the Court so much of the cause "as involves the validity of the repeal of section 503 of the Merchant Shipping Act 1894 (Imp) by section 104(3) of the Navigation Amendment Act 1979 (Cth)".

2. The attack on the validity of the repeal was carried by counsel for the Attorneys-General for the States of New South Wales, Western Australia and Queensland ("the States") with counsel for the Commonwealth and for the plaintiff contending for validity.

3. The real bone of contention between the protagonists is the legislative competence of the Parliament to repeal wholly in its application to Australia the provisions of Pt VIII of the Imperial Act dealing with the limitation of liability of the owners of the ships referred to therein. Hitherto, this Court has recognized, when considering the extent of the power of the Parliament to legislate with respect to trade and commerce with other countries, and among the States (Constitution, s. 51(i)) that the power does not extend to the control of certain kinds of shipping such as pleasure craft and vessels engaged solely in intra-State trade: see Owners of S.S. Kalibia v. Wilson (1910) 11 CLR 689; Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth (1921) 29 CLR 357; R. v. Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411. Cf., also, Airlines of N.S.W. Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54. However, the present issue does not require a consideration of the trade and commerce power. The Commonwealth asserts that its legislative power to effect the repeal derives from either of two alternative sources: (a) the Statute of Westminster, 1931 (Imp.) ("the Statute") s. 2(2) and (b) the external affairs power (Constitution, s. 51(xxix)). The States deny the sufficiency of either source.

4. Before turning to the central issue, I must deal with a preliminary point raised by the learned Solicitor-General for New South Wales. It was submitted that, as a matter of construction, s. 104(3) of the Act should be given a limited operation. The material provisions are:

"103. In this Part, "Merchant Shipping Act"

means the Imperial Act known as the Merchant Shipping Act, 1894, as amended, or otherwise affected in its operation, by the provisions of any other Imperial Act or of any Act, in so far as that Act as so amended, or otherwise affected in its operation, is part of the law of the Commonwealth.

104. ...

(3) Part VIII of the Merchant Shipping Act

is repealed."

The argument is that the scope of the repeal is to be determined by the meaning given to the phrase "part of the law of the Commonwealth", and that on its proper construction the phrase refers to the body of Commonwealth law identified by reference to the powers of the Commonwealth Parliament. If this is so, the repeal does not affect and is not intended to affect the continued operation of Pt VIII of the Imperial Act in so far as it forms part of the residual body of State law.

5. The point is a plausible one. It would have been easy for the legislature to have defined the phrase in wider terms if that had been its intention. For example, if the phrase had read "part of the law of Australia" there could have been little foothold for the argument. When the Parliament of the Commonwealth speaks of "the law of the Commonwealth" it is natural to conclude that it is speaking of that body of law to which it is related as a legislature within the federation, a body of law which is identified by reference to the totality of its legislative powers. The phrase may be contrasted with that used to refer to the body of law within the federation which falls within the competence of or is the exclusive concern of the States, namely, "the law of the States". Furthermore, the context is consistent with the submission. The corollary to the repeal of the limited liability provisions of the Imperial Act is the implementation within Australia of the provisions of the International Convention relating to the limitation of the liability of owners of sea-going ships signed in 1957 ("the Convention"). Section 104(2) of the Act approves of the ratification by Australia of the Convention and s. 65 substitutes a new Pt VIII in the Navigation Act 1912 (Cth), as amended, ("the Principal Act"). Division 1 of the new Part deals with the limitation of liability. Although s. 332(1) of the Principal Act expressly excludes the operation of s. 2 (which section limits the application of the Principal Act) in relation to the provisions of the division, thereby applying those provisions to intra-State ships, their operation is nevertheless confined to sea-going ships because the terms of the Convention are limited in that way. Section 333 of the Principal Act enacts that the provisions of the Convention are to have "the force of law as part of the law of the Commonwealth". It is common ground that the ratification of the Convention brings into being an external affair with the consequence that its implementation within Australia is within the legislative competence of the Commonwealth (s. 51(xxix)) notwithstanding that it applies to such intra-State ships as satisfy the description of "sea-going ships". It is of particular importance to note that the Act does not attempt to extend the provisions of the Convention to cover intra-State ships which do not "go to sea" (whatever that expression may mean). It therefore follows that if the wider construction is to be given to the phrase "part of the law of the Commonwealth" in s. 103 of the Act the necessary effect of the Act is to repeal the application of the Imperial Act to intra-State shipping other than sea-going ships without putting any protection at all in its place.

6. The alternative approach is to discern a legislative intent to tailor the extent of the repeal of the provisions of the Imperial Act with respect to the limitation of liability of ship-owners so as to correspond precisely with the coverage provided by the Convention. It seems to me that this alternative construction has much to commend it. It might be said that, given the wider construction for which the Commonwealth contends, the lack of any protection would endure only until the State legislatures, now freed by reason of the repeal of s. 503 from the constraints of the Imperial Act, passed their own legislation. That may be so, but the lack of protection in the intervening period could be very serious indeed. This was recognized by the Parliament in respect of intra-State vessels which go to sea. They were covered by the new provisions applying the Convention but subject to the proviso contained in s. 332(3) of the Principal Act reading as follows:

"(3) The provisions of this Division do not

apply in relation to an intra-State vessel to the extent that a law of a State or of the Northern Territory makes provision giving effect to the Convention in relation to that vessel."

7. It is not suggested that the Parliament is unable, in exercising the power to make laws with respect to external affairs, to implement the Convention and in connection therewith to repeal, so far as Australia is concerned, Pt VIII of the Imperial Act in its application to sea-going intra-State shipping. This being the construction that I would place on s. 104(3) of the Act I am of the opinion that the repeal of Pt VIII limited in that way is valid. This conclusion means that I would remit the matter to the District Court of New South Wales for determination of the question whether the vessel in question in this case is a sea-going ship. If that question be answered in the negative then the defence based on the Imperial Act will not be struck out. I may add that resort to the parliamentary debates as encouraged in cases of ambiguity by s.15AB of the Acts Interpretation Act 1901 (Cth), as amended, has not given me any assistance in my consideration of the question. The Hansard materials reveal no awareness of the existence of the problem.

8. However, notwithstanding the conclusion to which I have come, I propose in deference to the importance of the central issue which has been argued, to indicate my views on that question.

9. Much argument was directed to the question whether the provisions of s. 2(2) of the Statute conferred additional legislative power on the Commonwealth Parliament as distinct from releasing it from the fetters of repugnancy. Section 2 reads as follows:

"2. (1) The Colonial Laws Validity Act, 1865,

shall not apply to any law made after the commencement of this Act by the Parliament of a Dominion.

(2) No law and no provision of any law made

after the commencement of this Act by the Parliament of a Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act, and the powers of the Parliament of a Dominion shall include the power to repeal or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion."

It is argued for the Commonwealth that the concluding part of s. 2(2) commencing with the words "and the powers of the Parliament of a Dominion" stands as an independent grant of legislative power to repeal or amend any Imperial Act in so far as that Act applies to Australia. The Commonwealth Parliament therefore is empowered, independently of any reliance upon the powers granted to it by s. 51 of the Constitution, to repeal Pt VIII of the Imperial Act entirely in its application to Australia.

10. If s. 2 is viewed without regard to s. 9 of the Statute, this argument accords a remarkable operation to the section. It is remarkable for several reasons.

11. First, the section as a whole is dealing with the removal of fetters upon the exercise of legislative powers that are already in existence. In that context it was entirely appropriate to conclude with a positive declaration of the power to repeal repugnant Imperial legislation. As a matter of history, the repugnancy doctrine had operated to strike down colonial or Dominion legislation which in its pursuit of local objectives happened in its operation to be inconsistent with Imperial laws; a legislature would seldom if ever have had the temerity to expressly repeal or amend the Imperial law. Now, however, the charter of legislative autonomy is given in terms that are explicit and complete: s. 2 of the Colonial Laws Validity Act 1865 (Imp.) no longer applies (s. 2(1)); the common law doctrine of repugnancy remains dead and buried (s. 2(2)); furthermore the Parliament of a Dominion may, in relation to matters within its legislative competence, expressly repeal or amend Imperial legislation.

18. The first is British Coal Corporation v. The King (1935) AC 500. In that case, the Privy Council upheld the validity of a Canadian statute which abolished appeals in criminal cases to the Privy Council, including appeals by special leave. A similar provision had been held invalid by the Judicial Committee in Nadan v. The King (1926) AC 482 because, as their Lordships held, it was repugnant to the Judicial Committee Acts of 1833 and 1844 and was void both under the Colonial Laws Validity Act and because it could only be effective if it were construed as having an extraterritorial operation. In the meantime, the Statute of Westminster had removed both of these difficulties and consequently the provision in question was now validly enacted. But the source of the power to enact the provision could not be the Statute and was found in s.91 of the British North America Act 1867 which gave to the Canadian legislature power to legislate in relation to criminal law and procedure in criminal matters. The decision in British Coal Corporation v. The King is, therefore, entirely consistent with the view I have expressed of the effect of s.2(2) of the Statute of Westminster.

19. The second decision is that of Moore v. Attorney-General for the Irish Free State (1935) AC 484 and it must be conceded that that decision poses more of a problem for the view that s.2(2) of the Statute of Westminster does not constitute an independent grant of legislative power. However, a careful reading of the decision reveals that the Judicial Committee did not give any real consideration to that view. The case concerned the power of the legislature of the Irish Free State to amend the Constitution of that Dominion in order to terminate the right of appeal to the Privy Council. The argument was put, and rejected, that the Irish Constitution derived its existence from an Irish body, the Constituent Assembly, which passed the Constituent Act containing the Constitution. The abolition of appeals to the Privy Council required amendment of the Constituent Act but, it was argued, this could only be done by the Constituent Assembly, which had gone out of existence or, perhaps, by a new Constituent Assembly called together for the purpose.

20. The Judicial Committee was of the contrary view that the Constitution derived its existence from two Acts of the Imperial Parliament. The first was the Irish Free State (Agreement) Act 1922 which gave force of law to a treaty between Great Britain and Ireland providing for a Constituent Assembly to settle a Constitution for the Irish Free State. The second Imperial Act was the Irish Free State Constitution Act 1922, which provided for the Constitution set forth in the First Schedule to the Constituent Act to come into operation at a specified time. Having decided that the Constitution derived from these Imperial Statutes, the Judicial Committee appears to have assumed, rather than decided, that the Irish legislature, the Oireachtas, had power to amend the Constitution in the absence of any doctrine of repugnancy. The doctrine of repugnancy had, of course, been abolished for the Irish Free State, which was a Dominion within the meaning of the Statute of Westminster.

21. It is an unsatisfactory decision because their Lordships did not address themselves to the question whether the power to amend the Constitution, apart from the fetter of repugnancy, came from the Statute of Westminster or from some other source and, if it came from some other source (which in the circumstances could only have been the Constitution), whether it was given subject to any restriction. That question may in turn have raised the further question of the effect to be given to the absence, in the case of the Irish Free State, of any express denial of a power to repeal or alter the Constitution, such as is to be found in the case of Canada, Australia and New Zealand in ss.7(1) and 8 of the Statute. But the matter is left in the air as the following passages at pp.497-498 show:

"The Irish Free State is in their Lordships' judgment bound by the Acts of the Imperial Parliament in the same way as any other of the Dominions; if it were not for s.2 of the Statute the Oireachtas would have had no power to amend or repeal an Act of the Imperial Parliament and has now such power only so far as any such Act is part of the law of the Dominion in virtue of s.2 of the Statute. ... But as what the Oireachtas was doing was in truth, as already stated, the repealing or amending of parts of an Imperial Statute, namely, the Irish Free State Constitution Act, 1922, what the Oireachas did must, in their Lordships' judgment, be deemed to have been done in the way in which alone it could legally be done, that is by virtue of the powers given by the Statute."

22. Plainly, their Lordships did not separate the question of power derived from the removal of Imperial paramountcy and the question of power otherwise existing to pass the amending legislation. This is shown by par.(3.) of the summary of reasons on p.498, which is as follows:

"The effect of the Statute of Westminster was

to remove the fetter which lay upon the Irish Free State Legislature by reason of the Colonial Laws Validity Act. That Legislature can now pass Acts repugnant to an Imperial Act. In this case they have done so."

23. The decision cannot, therefore, be taken as determining whether the scope of s.2(2) of the Statute of Westminster is such as to enlarge the ambit of powers of a Dominion Parliament rather than to remove a fetter. This is the more so when it is borne in mind that in Moore v. Attorney-General for the Irish Free State the Privy Council was not dealing with a federation but with a unitary state. In a Dominion with a federal constitution the consequence of a construction of s.2(2) which would make that sub-section an independent source of legislative power would be to disturb the federal balance otherwise fixed by the constitution and to determine a matter of high constitutional importance. There is no suggestion that this was in any way present in the minds of their Lordships in Moore v. Attorney-General for the Irish Free State any more than there is any hint in the deliberations of the Imperial Conferences that such was a purpose of the Statute. Indeed, every indication is to the contrary. It is not to be supposed that it was intended that a consequence of such significance was to be achieved by what is at best an ambiguity.

24. Returning to s.9(1) of the Statute of Westminster, it is to be observed that the sub-section denies authority to the Parliament of the Commonwealth "to make laws on any matter within the authority of the States of Australia, not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia." The word "matter" here means "subject matter" and the subject matter of a law which repeals another law is not in anything but the most artificial and restricted sense the repeal itself. The subject matter of a repealing enactment is the subject matter of the law repealed for it is with respect to that subject matter that the repealing enactment effects a change. Thus, to the extent that the Navigation Amendment Act effects a repeal of Pt VIII of the Merchant Shipping Act, it is dealing with a law on the matter of the liability of ship owners, that being the subject matter of that Part. The question then becomes whether that is a subject matter within the authority of the States not being within the authority of the Commonwealth.

25. Under s.735(1) of the Merchant Shipping Act, the legislature of a British possession is empowered to repeal, wholly or in part, any provisions of the Act. Any such repeal is subject to confirmation by Her Majesty in Council and does not take effect until the approval of Her Majesty has been proclaimed in the possession. Section 736 of the Merchant Shipping Act provides that the legislature of a British possession may regulate the coasting trade of that British possession, but the legislation must contain a clause suspending its operation until Her Majesty's pleasure thereon has been publicly signified in that British possession. Under s.5 of the Statute of Westminster, ss.735 and 736 of the Merchant Shipping Act are to be construed as if the reference in those sections to the legislature of a British possession does not include reference to the Parliament of a Dominion. This has the effect of displacing anything to the contrary in s.18(2) of the Interpretation Act 1889 (Imp.) and it is clear that ss.735 and 736 refer to the legislatures of the States, each of them being the legislature of a British possession. Of course, the Dominion Parliaments, including the Commonwealth Parliament, no longer have any need of the relief afforded by ss.735 and 736 from the effect of the doctrine of repugnancy so far as the Merchant Shipping Act was concerned. Complete relief was afforded by s.2 of the Statute of Westminster and s.5 was intended to remove any doubt about that. But ss.735 and 736 continue in their application to the States and the effect of s.735 is to authorize State legislatures to repeal the provisions of the Merchant Shipping Act (excluding Pt III which is not relevant for present purposes) relating to ships registered in the State.

26. The States of New South Wales, Queensland and Western Australia, appearing by intervention, submitted that the matters dealt with by ss.735 and 736 were, for the purposes of s.9(1) of the Statute of Westminster, within the authority of the States of Australia and, to the extent that they included ships not falling within the power of the Commonwealth to make laws with respect to trade and commerce among the States, including interstate navigation and shipping (Constitution, ss.51(i) and 98), or the power to make laws with respect to external affairs (Constitution, s.51(xxix)), they were not matters within the authority of the Parliament or Government of the Commonwealth. This submission was made upon the basis of a number of assumptions. Section 735 of the Merchant Shipping Act deals only with the repeal of provisions relating to ships registered in the relevant possession and s.736 deals only with the regulation of the coasting trade. It was assumed for the purposes of argument that the vessel in this case was registered in New South Wales and operated only upon internal waters so that it was not engaged in interstate trade or commerce. The possibility that the vessel was engaged in the coasting trade also seems to have been assumed. All of these matters raise questions of fact which may ultimately have to be determined, but it is convenient in this judgment to proceed upon the same assumptions.

27. What was submitted by the Commonwealth, which also appeared by intervention, was, first, that the requirement that legislation under ss.735 and 736 be respectively confirmed by Her Majesty in Council and suspended until the signification of Her Majesty's pleasure was such that the matters dealt with by those sections were not placed within the authority of the States within the meaning of s.9(1) of the Statute of Westminster and, secondly, that s.735 has no application in the States since the Shipping Registration Act 1981 (Cth) came into force.

28. Both of those submissions may, I think, be answered shortly. The fact that both s.735 and s.736 of the Merchant Shipping Act require Royal assent or confirmation to be given or signified in a particular manner does not, in my view, detract in any way from the authority of the States which is confided to them by those sections. That authority is an authority to legislate upon the matters referred to in those sections and the fact that the exercise of the authority has to be carried out in a particular manner is hardly to deny the authority. Royal assent is part of the legislative process and the Crown has at all times been and remains the legislative head of the State legislatures. True it is that in exercising the power of assent under ss.735 and 736, whether in the form of confirmation, approval or the signification of Her Majesty's pleasure, the Crown would be acting on the advice of Her Majesty's United Kingdom Government, but that does not mean that the assent is any the less part of the legislative process. The power of the Queen to disallow legislation may be seen in both the Constitutions of the States and of the Commonwealth. The fact that at least in the case of the Commonwealth (see Constitution, ss.58 and 59), the power is now exercisable only upon the advice of the Queen's Commonwealth Ministers and is hence for all practical purposes a dead letter, is a matter of convention rather than constitutional theory and it must be recognized that at its inception that power was exercisable upon the advice of the Queen's United Kingdom Ministers. See Report of the Conference on the Operation of Dominion Legislation and Merchant Shipping Legislation, 1929, p.11. It could not be suggested that the statutory power of disallowance to be found in the Commonwealth Constitution itself in any way diminishes the authority of the Commonwealth Parliament over the matters with respect to which it may make laws any more than the requirement in ss.735 and 736 of the Merchant Shipping Act that Royal assent or confirmation be given in a particular manner diminishes the authority of the State legislatures over the matters with which those sections deal.

29. The answer to the submission that the Shipping Registration Act 1981 (Cth) precludes the operation of s.735 of the Merchant Shipping Act in this case may be made even more shortly. The Shipping Registration Act was not passed until after the enactment of the Navigation Amendment Act 1979 (Cth) and the extent to which s.104(3) of that Act repeals Pt VIII of the Merchant Shipping Act cannot be affected by the operation of another Act which was not in existence at the time the Navigation Amendment Act came into force. The question of the authority of the States and of the Commonwealth in relation to the matter dealt with by s.735 falls to be determined at that time. That is not to concede or deny the validity of the Commonwealth submission so far as the scope of the Shipping Registration Act is concerned. It is merely to say that the questions which that submission raises have no application in this case.

30. The final submission made by the Commonwealth is that s.104(3) of the Navigation Amendment Act is a valid law of the Commonwealth with respect to external affairs within the meaning of s.51(xxix) of the Constitution. Upon the view which I have taken of the proper construction of s.104(3), reliance upon the external affairs power does not carry the Commonwealth's case any further. The repeal effected by that sub-section extends, by reason of s.103, to the Merchant Shipping Act only in so far as that Act is part of the law of the Commonwealth. Since, as I have concluded, the expression "part of the law of the Commonwealth" in s.103 must bear the same meaning for present purposes as the expression "part of the law of the Dominions" in s.2(2) of the Statute of Westminster, the repeal effected by s.104(3) of the Navigation Amendment Act stops short of Pt VIII of the Merchant Shipping Act in so far as that Part forms part of the law of the States. But it is desirable nevertheless that I should express my view upon whether reliance might be placed upon the external affairs power to support the repeal by the Commonwealth of Pt VIII of the Merchant Shipping Act in so far as that Part forms part of the law of the States.

31. In my view, the external affairs power would not support such a repeal. In China Ocean Shipping Co. v. South Australia, at pp 194-195, Gibbs J. dealt with the way in which Pt VIII of the Merchant Shipping Act became part of the law of the Australian colonies:

"When Pt VIII of the Act of 1894, upon its

enactment, became part of the law of South Australia and of the other Australian colonies, the provisions of that Part did not occupy a separate and exceptional position. They became part of the whole body of the law by which the colony was governed. They were just as much a part of the law of the colony as the principles of common law and equity, the statute law of England enacted before the colony was settled, and the enactments of the colonial legislature. They would remain part of the law until they were repealed or amended by a legislative body which had power to affect them. The Parliament of the United Kingdom had such power, but the legislature of the colony had only the limited powers conferred by ss.735 and 736 of the Act of 1894."

See also Barwick C.J. at pp.181-182; Stephen J. at p.214; Aickin J. at p.240.

32. Part VIII of the Merchant Shipping Act continued as part of the law of the States when they replaced the colonies.

33. The argument put by the Commonwealth did not deny that Pt VIII of the Merchant Shipping Act, apart from the purported repeal of that Part, forms part of the law of the States. What was put was that the limitation on liability imposed by s.503 of the Merchant Shipping Act, to the extent that it remains in force, prevents the implementation of the International Convention relating to the limitation of the liability of owners of sea-going ships. This argument, in my view, lacks substance. It may be conceded that a law implementing the Convention in question would be a law with respect to external affairs. Section 65 of the Navigation Act is such a law. It substitutes for Pt VIII of the Navigation Act 1912 (Cth) (which deals with the limitation of liability in respect of government ships) a new Pt VIII containing s.333 which provides that the provisions of the Convention shall have the force of law as part of the law of the Commonwealth. Apart from the question of the purported express repeal of Pt VIII of the Merchant Shipping Act, there would, by virtue of s.65 of the Navigation Amendment Act, be an implied repeal of those parts of Pt VIII which could not stand together with the provisions of the Convention. But the provisions of the Convention are not coextensive with the provisions of Pt VIII of the Merchant Shipping Act and, in particular, s.503 of that Act. To the extent that the repeal which s.104(3) of the Navigation Amendment Act purports to make extends beyond those matters covered by the Convention, then it cannot be supported by reliance upon the external affairs power.

34. And s.104(3), in purporting to repeal Pt VIII of the Merchant Shipping Act, does extend beyond the matters covered by the Convention because the Convention is limited in its application to sea-going ships. Section 503 of the Merchant Shipping Act, on the other hand, extends to the owners of a ship, British or foreign, whether or not it is a sea-going ship. "Ship" is defined in s.742 of the Merchant Shipping Act to include "every description of vessel used in navigation not propelled by oars" and "vessel" includes "any ship or boat, or other description of vessel used in navigation not propelled by oars." Clearly, vessels used only upon internal waters are ships within the meaning of s.742 and fall within s.503 of the Merchant Shipping Act but are not sea-going ships and do not fall within the provisions of the Convention. Upon the assumption that the vessel in this case was not a sea-going ship, the provisions of the Convention would not apply to it but s.503 of the Merchant Shipping Act would. The external affairs power cannot, in my view, support any repeal of Pt VIII of the Merchant Shipping Act which goes beyond the matters dealt with by the Convention.

35. Another argument, not advanced by the Commonwealth, must nevertheless be dealt with. It is that a law of the Commonwealth Parliament which repeals an Imperial statute applying in Australia is a law with respect to external affairs. The argument, as I understand it, asserts that the supremacy of the Imperial Parliament as a matter of constitutional practice has ceased to exist and that, as a consequence, an Imperial statute applying here represents an intrusion into the domestic law of this country from an external source. Upon that basis, it is said that a law effecting the repeal, or even the amendment, of the statute is a law made with respect to an external affair.

36. The argument will not, in my view, stand examination. In the first place, the supremacy of the Imperial Parliament as a matter of constitutional theory and, in a much modified way, as a matter of constitutional practice, still remains an important part of our legal system. Not only does the Constitution of this country derive its authority from an Act of the Imperial Parliament but the Statute of Westminster itself is reliant upon the power of that Parliament for its operation. The removal by the Statute of Westminster of the doctrine of repugnancy so far as the Commonwealth is concerned constitutes a modification of the supremacy of that legislature as does, at least upon one view, the prohibition by s.4 of the Statute of Imperial legislation extending to a Dominion except at the request, and with the consent, of that Dominion. But the doctrine of repugnancy - a doctrine which lies at the heart of Imperial supremacy - remains for the States of Australia, unlike the Provinces of Canada to which the Statute of Westminster applies by virtue of s.7(2). Moreover, s.4 of the Statute in seeking to limit the exercise of Imperial legislative power is predicated upon its continued existence.

37. Underlying the Statute of Westminster is the concept, basic to our institutions of government, that those members of the Commonwealth of Nations continuing under the Crown are subject to the ultimate legislative authority of the Queen in Parliament. That is not to deny the possibility of the abandonment of the supremacy of that legislature at some time, but such an occurrence would still involve a basic change in constitutional theory and practice and that change demonstrably has not yet occurred.

38. Even if it could be said that the power of the Imperial Parliament no longer extends to this country, it hardly follows that Acts of that legislature which form part of our law represent an intrusion from an external source. It may be conceded that the relations of this country with the United Kingdom may constitute an external affair and the reference in s.51(xxix) of the Constitution to external rather than foreign affairs is intended to embrace those relations. But that does not mean that the Imperial Parliament itself or its legislation applying in this country constitutes an external affair. The exercise of Imperial legislative power was the exercise of a power forming part of the local legal system of the colony, State or Commonwealth of Australia, as the case may be. The resulting law applied and, to the extent it remains part of the law of the States, applies by paramount force. There is no element of externality about either the law or its source.

39. There is, however, a simpler answer to this argument. It lies in the proposition to which I have already adverted. A law which effects the repeal of another law is not a law with respect to repeal; its subject matter is the subject matter of the law which is repealed. Moreover, even if it could be said that, after the repeal of an Imperial Statute, the Imperial Parliament would have power only with the concurrence of the Commonwealth to pass a law applying in this country upon the subject matter of the repealed legislation, that would be a consequence of the repeal and not the subject matter of the repealing Act. Thus, even if it could be said, contrary to the view which I have expressed, that the powers of the Imperial Parliament are an external affair, the repealing Act would not be a law with respect to those powers and hence a law with respect to external affairs.

40. In this case, the subject matter of the law repealing Pt VIII of the Merchant Shipping Act is the liability of ship-owners and, so far as ships operating entirely in internal waters are concerned, that is not an external affair. It does not advance the matter to say that in Koowarta v. Bjelke-Petersen (1982) 56 ALJR 625 a majority of this Court held that a law dealing with internal affairs may also be a law with respect to external affairs. That may have been so in that case, but the law there was a law dealing with the subject of racial discrimination. It was only a law with respect to external affairs because it was implementing an international convention which placed obligations upon Australia with respect to racial discrimination and so endowed that subject matter with the necessary external aspect. The subject matter was part of our external affairs because it was the subject matter of an international treaty. As Mason J. said, at p.651:

"Agreement by nations to take common action in pursuit of a common objective evidences the existence of international concern and gives the subject-matter of the treaty a character which is international."

The subject of the liability of the owners of ships operating upon internal waters is not a subject matter which has in any way been given an international character and a law repealing another law dealing with that subject matter is not a law with respect to external affairs.

41. For all of these reasons, it is my view that s.104(3) of the Navigation Amendment Act does not repeal that part of Pt VIII of the Merchant Shipping Act which deals with the liability of the owners of ships operating upon internal waters. I would remit the case to the District Court of New South Wales for the determination of any questions of fact and its decision.

Orders

Declare that Part VIII of the Merchant Shipping Act 1894

(Imp.) is validly repealed in so far as it is part of the law of Australia by section 104(3) of the Navigation Amendment Act 1979 (Cth).

Strike out paragraph 4 of the Notice of Grounds of

Defence.

Remit the matter to the District Court of New South

Wales.

Order that the costs of the plaintiff and the defendant

be paid by the Attorneys-General of the States of New South Wales, Western Australia and Queensland.