Victoria v The Commonwealth

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.