THE COMMONWEALTH OF AUSTRALIA AND Shipping-Wreck-Within VictoriaRemovalPower to remove-State or Com-
monwealth power-Navigation Act 1912-1935 (No. 4 of 1913-No. 30 of 1935) sec. 329-Marine Act 1928 (Vict.) (No. 3723), sec. 13. MELBOURNE,
Constitutional Law-State and Commonwealth statutes dealing with same subject Nov. 1, 3, 4.
matter-Inconsistency-The Constitution (63 &64 Vict. c. 12), sec. 109. SYDNEY,
Sec. 13 of the Marine Act 1928 (Vict.) provides for the removal, at the instance of a State authority, of any ship sunk in a port within Victoria and not removed by the owner, and for the recovery of the cost of removal from the owner. Sec. 329 of the Navigation Act 1912-1935 makes similar provision with respect to the removal, at the instance of a Commonwealth authority, of any ship sunk " on or near the coast of Australia."
Held that there was no such inconsistency between the Commonwealth and State provisions as would (at any rate, in the absence of intervention by the Commonwealth authority in purported exercise of a power under sec. 329 of the Navigation Act) deprive the port officer of the power conferred by see. 13 of the Marine Act to secure the removal of a ship sunk in Port Phillip, within Victoria, and to recover the cost from the owner of the ship.
CASE STATED.
In an action commenced in the High Court by the State of Victoria, the Attorney-General for the State of Victoria and Aubrey Duncan MacKenzie against the Commonwealth of Australia, the
Honourable Thomas Cornelius Brennan and the Union Steamship Co. of New Zealand Ltd. the plaintiffs claimed :-(a) A declaration that sec. 13 of the Marine Act 1928 (Vict.) was a valid exercise of the legislative power of the State and was of full force and effect. (b) A declaration that the plaintiff Aubrey Duncan MacKenzie, subject to and in accordance with the provisions of sec. 13 of the Marine Act 1928, may lawfully remove or cause to be removed the wreck of the steamship Kakariki from the port of Port Phillip and that the defendant the Honourable Thomas Cornelius Brennan may not law- fully exercise in respect of the wreck the powers conferred by sec. 329 of the Navigation Act 1912-1935 of the Commonwealth. (c) Alter- natively to the declaration claimed in par. b, a declaration that the plaintiff Aubrey Duncan MacKenzie, subject to and in accordance with the provisions of sec. 13 of the Marine Act 1928, may lawfully remove or cause to be removed the wreck unless the defendant the Honourable Thomas Cornelius Brennan proceeds with reasonable expedition to remove or destroy the wreck or cause the same to be removed or destroyed.
A case, which was substantially as follows, was stated by the parties for the opinion of the court, and was referred to the Full Court :-
1. On 29th January 1937 the steamship Caradale came into collision with the steamship Kakariki, and as a result…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Victoria v The Commonwealth [1937] HCA 82
Case
[1937] HCA 82
Decision Date
CaseChat Overview and Summary
The State of Victoria and its Attorney-General, along with Aubrey Duncan MacKenzie, brought an action against the Commonwealth of Australia, the Minister administering the Marine Branch of the Department of Commerce, and the Union Steamship Co. of New Zealand Ltd. The dispute concerned the removal of the wreck of the steamship *Kakariki* from Port Phillip. The State sought declarations that its *Marine Act 1928* (Vict.) was valid and that its port officer could lawfully remove the wreck and recover costs, and that the Commonwealth Minister could not lawfully exercise powers under section 329 of the *Navigation Act 1912-1935* (Cth) in relation to the wreck. The case was stated for the opinion of the Full Court of the High Court of Australia.
The legal issues before the court were whether section 13 of the Victorian *Marine Act* was a valid exercise of State legislative power, and whether the plaintiff port officer could lawfully exercise the powers conferred by that section to remove the wreck. A related issue was whether the Commonwealth Minister could lawfully exercise powers under section 329 of the *Navigation Act* in respect of the same wreck. The central question was whether there was an inconsistency between the State and Commonwealth provisions, which would render the State law invalid under section 109 of the Constitution.
The court held that there was no such inconsistency as would deprive the Victorian port officer of the power to remove the wreck and recover costs. While both the State and Commonwealth legislation provided for the removal of wrecks, the Commonwealth provision (section 329 of the *Navigation Act*) was interpreted as conferring a power on the Minister, rather than creating an exclusive authority. The court reasoned that the mere existence of concurrent powers did not create an inconsistency under section 109 of the Constitution. Inconsistency only arises when the State law, if valid, would alter, impair, or detract from the operation of a Commonwealth law, or where the Commonwealth law is intended as a complete statement of the law governing a particular matter. In this instance, the Commonwealth section did not expressly or implicitly indicate an intention to create an exclusive power, and no steps had been taken by the Commonwealth Minister to exert his authority under section 329. Therefore, the State law could operate concurrently.
The court answered question (b) in the affirmative, finding that the plaintiff Aubrey Duncan MacKenzie could lawfully exercise the powers conferred by section 13 of the *Marine Act*. The court declined to answer questions (a) and (c) as framed, considering them to be abstract or requiring a broader discussion than the facts warranted, particularly as no action had yet been taken by the Commonwealth authorities under their legislation. The primary concern was to dispel the apprehension that the State law was invalid due to potential inconsistency.