HIGH COURT OF AUSTRALIA

                                Union Steamship Co. of New Zealand Limited

                                                           Vs.

                                                   Commonwealth

                               (Knox C.J., Isaacs, Higgins, Rich and Starke JJ.)

                                                     16 June 1925

Knox C.J.

The plaintiff Company is the owner, and the plaintiff Rolls the master, of the steamship Niagara, a
British ship registered in the United Kingdom and trading between Sydney and Vancouver. The
plaintiff Rolls, having occasion to discharge the crew of that ship and to engage a new crew in
Sydney, applied to the defendant Jones, who is the superintendent of the Mercantile Marine Office
in Sydney, to allow such discharges and engagements to be effected in his presence in accordance
with the provisions of the Merchant Shipping Acts 1894 and 1906. The defendant Jones refused to
allow the discharges or engagements to be effected in his presence unless all the conditions
(including payment of fees) imposed by the Navigation Act 1912-1920 were complied with. The
plaintiffs, under protest, paid the fees demanded and effected discharges and engagements in
accordance with the conditions imposed by the Navigation Act. This action is brought to recover the
fees so paid, and the parties have agreed in stating a case for the opinion of this Court on the
following questions: "(a) Whether in the circumstances herein set forth the said master was required
by law to comply with the conditions (including the payment of fees) with respect to the discharge
of seamen imposed or purporting to be imposed by the Navigation Act 1912-1920 and the
Regulations thereunder; (b) Whether in the circumstances herein set forth the said master was
required by law to comply with the conditions (including the payment of fees) with respect to the
engagement of seamen imposed or purporting to be imposed by the Navigation Act 1912-1920 and
the Regulations thereunder."

The plaintiffs contend that, as the Niagara is a British ship, registered in the United Kingdom, the
discharge abroad of seamen from, and the engagement abroad of seamen for, that ship are regulated
by the provisions of the Merchant Shipping Acts, and that it was the duty of the defendant Jones to
allow such discharges and engagements to be effected in accordance with those Acts in his presence
without payment of any fee. The defendant Jones seeks to justify his refusal by reference to the
Navigation Act 1912-1920 and the Regulations made thereunder. The plaintiffs reply that certain of
the provisions of Part II. of the Navigation Act and of the Regulations, including the regulation
which provides for payment of fees on discharges or engagements being effected in the presence of
the superintendent, if they apply to British ships registered in the United Kingdom, are repugnant to
the provisions of the Merchant Shipping Acts and are therefore void and inoperative by force of sec.
2 of the Colonial Laws Validity Act 1865.

The first question is whether the provisions of the Merchant Shipping Acts apply to the discharges
and engagements in Sydney of seamen in connection with the Niagara. It will be necessary to
consider separately the provisions relating to discharges and those relating to engagements.
As to Discharges:--Sec. 30 (1) of the Merchant Shipping Act 1906 provides that the master of a
British ship shall not discharge a seaman at any place out of the United Kingdom (except at a port in
the country in which he was shipped), unless he previously obtains, endorsed on the agreement with
the crew, the sanction of the proper authority, but that sanction shall not be refused where the
seaman is discharged on the termination of his service. "Proper authority" is defined as meaning, as
respects a place in a British possession, a superintendent, or, in the absence of such superintendent,
the chief officer of customs at or near the place. If a master fail to comply with the provisions of
sec. 30, he is guilty of a misdemeanour. Sec. 31 of the same Act provides that, where the master of a
British ship discharges a seaman at any place out of the United Kingdom, he shall give to that
seaman a certificate of discharge in a form approved by the Board of Trade. By sec. 260 of the
Merchant Shipping Act of 1894 read in conjunction with sec. 49 (3) of the Act of 1906, the
provisions of Part IV. of the Act of 1906 (which consists of secs. 28 to 49, both inclusive) are made
to apply to all sea-going ships registered in the United Kingdom and to the owners, masters and
crews of such ships, subject to certain immaterial exceptions. The Niagara is a sea-going ship
within the meaning of this provision, and it follows that discharges abroad of seamen serving on her
are within the provisions of the Merchant Shipping Act 1906 above referred to. The defendant Jones
was the "proper authority" within the meaning of these provisions, and, as the engagements of the
seamen whom the plaintiffs desired to discharge had terminated, he had no right to refuse his
sanction to their discharge under the Merchant Shipping Act 1906 or to insist on a discharge being
given under the Navigation Act if the provisions of the former Act were binding on him.

As to Engagements:--Sec. 113 of the Merchant Shipping Act 1894 provides that the master of every
ship (with certain immaterial exceptions) shall enter into an agreement in accordance with that Act
with every seaman whom he carries to sea from any port in the United Kingdom. Sec. 114 provides
that the agreement shall be in a form approved by the Board of Trade, and shall contain certain
particulars specified in the section. Sec. 124 is in the words following:--"(1) With respect to the
engagement of seamen abroad, the following provisions shall have effect:--Where the master of a
ship engages a seaman in any British possession other than that in which the ship is registered or at a
port in which there is a British consular officer, the provisions of this Act respecting agreements
with the crew made in the United Kingdom shall apply subject to the following modifications:--(a)
In any such British possession the master shall engage the seaman before some officer being either a
superintendent or, if there is no such superintendent, an officer of customs: (b) at any such port
having a British consular officer, the master shall, before carrying the seaman to sea, procure the
sanction of the consular officer, and shall engage the seaman before that officer: (c) the officer shall
endorse upon the agreement an attestation to the effect that the agreement has been signed in his
presence and otherwise made as required by this Act, and also, if the officer is a British consular
officer, that it has his sanction, and if the attestation is not made the burden of proving that the
engagement was made as required by this Act shall lie upon the master. (2) If a master fails to
comply with this section he shall be liable for each offence to a fine not exceeding five pounds."
Sec. 260 provides that Part II. of the Act (consisting of secs. 92 to 266 both inclusive) shall, unless
the context or subject matter requires a different application, apply to all sea-going ships registered
in the United Kingdom and to the owners, masters and crews of such ships, subject to certain
provisions not relevant to this case.

For the defendants it was argued that sec. 124 on its true construction does not extend to ships
registered in the United Kingdom. It was said that the words "Where the master of a ship engages a
seaman in any British possession other than that in which the ship is registered" import that the ship
first mentioned was registered in a British possession, and that a ship registered in the United
Kingdom could not be said to be a ship registered in a British possession. If these words stood alone
and if the section contained the original enactment on the subject matter with which it deals, this
argument might have greater force. But the section provides in one phrase for two cases, namely,
where the master of a ship engages a seaman (a) in any British possession other than that in which
the ship is registered or (b) at a port in which there is a British consular officer. In case (b) no reason
can be suggested for excluding from the operation of the section ships registered in the United
Kingdom, and it seems proper to interpret "ship" where first mentioned in the section as meaning
any British ship wherever registered. This view is supported by the fact that in the Act of 1894,
which is a consolidating Act, sec. 124 takes the place of secs. 159 and 160 of the Merchant Shipping
Act 1854, which clearly apply to the engagement of seamen abroad by the master of a ship
registered in the United Kingdom.

For these reasons I am of opinion that the provisions of the Merchant Shipping Acts apply to the
discharges and engagements now in question.

The next question for consideration is whether the provisions of the Navigation Act and Regulations
on which the defendants rely are repugnant to the relevant provisions of the Merchant Shipping
Acts. The Navigation Act by sec. 61 requires that the discharge given shall be in the prescribed
form, and by sec. 60 that the person engaging or discharging any seaman shall pay the prescribed
fees. "Prescribed" means prescribed by the Act or by regulations made under the Act, and by sec.
425 the Governor-General is empowered to make regulations in relation to (inter alia) the fixing of
the fees to be paid in respect of any matter under the Act or under the regulations. Reg. 9 of the
Navigation (Master and Seamen) Regulations 1922 (Statutory Rules 1922, No. 34) provides that the
fee for engagements or discharges effected before a superintendent shall be, for each seamen
engaged or discharged, two shillings, and that the master may deduct one-half of the fee from the
wages of the seamen engaged or discharged. It is apparent that this regulation only authorizes the
exaction of a fee when the engagement is made or the discharge is given under the Navigation Act.
Regs. 10 and 11 prescribe the form of certificates of discharge and of reports of conduct.

Sec. 46 of the Navigation Act provides that the master of a ship (with certain immaterial exceptions)
who engages any seaman in Australia shall enter into an agreement with him in the prescribed form,
and imposes a penalty of £5 for any breach of this provision. Sub-sec. 3 of sec. 46 provides that the
agreement shall be so framed as to admit of stipulations approved by the superintendent being
introduced therein at the joint will of the master and seaman. Sec. 69 prohibits (a) the insertion in
the agreement of any stipulation for the payment in advance to any seaman of the wages or any
portion thereof, and (b) the payment of any wages in advance; and by sub-sec. 3 any agreement for
payment in advance is avoided.

Some of the provisions of the Merchant Shipping Acts relating to engagement and discharge have
been referred to above; I mention in addition the provision in sec. 114 of the Act of 1894 that the
agreement shall be so framed as to admit of stipulations being introduced at the joint will of the
master and seaman whether respecting advances or otherwise. No approval by the superintendent is
required and an agreement to pay wages in advance is permitted.

In the case of discharges and engagements of seamen in Australia to which the provisions of the
Merchant Shipping Acts apply, I think it is clear that the provisions of the Navigation Act which
require the agreement or dlscharge to be in the prescribed form are inconsistent with and repugnant
to the relevant provisions of the Merchant Shipping Acts. The form of agreement prescribed under
the Navigation Act may, and in respect of advances of wages must, differ from that approved by the
Board of Trade, and under the Merchant Shipping Acts the master of a ship which is within the
provisions of those Acts commits an offence if he carries to sea a seaman who has not signed an
agreement in the form approved by the Board of Trade. The provisions regulating discharges are
open to a similar objection.

The remaining question is whether sec. 2 of the Colonial Laws Validity Act applies. That section
provides that any colonial law which is in any respect repugnant to the provisions of any Act of
Parliament extending to the colony to which such law may relate, shall be read subject to such Act
and shall to the extent of such repugnancy be void and inoperative. It is not disputed that the
Commonwealth of Australia is a "colony" within the meaning of that provision, but it was argued
for the defendants that the power given by the Constitution to the Commonwealth Parliament to
legislate with respect to shipping and navigation (secs. 51 and 98) excluded the operation of the
Colonial Laws Validity Act on laws made by the Commonwealth Parliament with respect to those
subjects, the Commonwealth of Australia Constitution Act being an Imperial Act later in date than
the Colonial Laws Validity Act. It was said also that the Constitution Act operating on secs. 51 and
98 of the Constitution exempts the Commonwealth Parliament from the restrictions on colonial
legislation imposed by secs. 735 and 736 of the Merchant Shipping Act 1894.

In effect the argument is that the Constitution Act operates as an implied repeal pro tanto of the
Colonial Laws Validity Act and the Merchant Shipping Act 1894. It would follow, if this contention
were correct, that the Colonial Laws Validity Act would have no application to laws enacted by the
legislature of a colony on which a constitution in the usual form--i.e., giving power to make laws
for the peace, order and good government of the colony--had been conferred by an Act of the
Imperial Parliament passed after 1865. In my opinion the argument for the defendants on this point
cannot be sustained. The Colonial Laws Validity Act is an Act dealing with laws made by colonial
legislatures generally. It assumes the competence of a colonial legislature to make laws with respect
to a given subject matter, and deals only with such provisions of a law otherwise valid as are
repugnant to any Act of the Imperial Parliament or to any order or regulation made thereunder. It
deals with a special subject, and I can see nothing to justify a limitation of the plain words "any
colonial law" to laws made under authority given by the Imperial Parliament before the passing of
the Act. In my opinion, the Colonial Laws Validity Act applies to laws passed under a power given
by an Imperial Act passed after that Act, as much as to laws passed under a power given by an
Imperial Act passed before it.

In In re R. v. Marais[1] the Judicial Committee, speaking by the Lord Chancellor, said:--"The
obvious purpose and meaning of that statute was to preserve the right of the Imperial Legislature to
legislate even for the colony, although a local legislature had been given, and to make it impossible,
when an Imperial statute had been passed expressly for the purpose of governing that colony, for the
colonial legislature in that sense to enact anything repugnant to an express law applied to that
colony by the Imperial Legislature itself. That is the meaning of those words."

For these reasons I am of opinion that the provisions of the Navigation Act which require
engagements and discharges to be effected in the manner provided by that Act are, so far as they
purport to extend to British ships in the position of the Niagara in this case, rendered void and
inoperative by the Colonial Laws Validity Act 1865, and, as the regulation providing for payment of
the fees exacted in this case applies only to engagements and discharges effected under the
provisions of the Navigation Act, the plaintiffs were not liable to pay such fees.

Both questions submitted should be answered in the negative.
Isaacs J.

The question, concretely stated, is whether the captain of the Niagara, a British ship registered in
England and not engaged in the coastal trade of the Commonwealth, nor having its first port of
clearance and port of destination in the Commonwealth, was in discharging and engaging seamen in
Australia governed by the Imperial Merchant Shipping Acts 1894 and 1906 or by the Australian
Navigation Act, or by both. The Commonwealth officials insisted that he was bound to proceed in
compliance with the Australian Act; he, on the other hand, insisted on proceeding under the
Imperial Act. Ultimately, under protest, he proceeded under the Australian Act, and accordingly
paid the fees demanded, amounting to £52. This action being brought to recover back the money so
paid, the question is which statute applied to the circumstances of this case, or whether both so
applied.

The plaintiff's contention is that the appropriate law is found in the Merchant Shipping Acts 1894
and 1906, and that the provisions of the Navigation Act requiring him to proceed under that Act are
repugnant to the Imperial Act. By reason, therefore, of sec. 2 of the Colonial Laws Validity Act 1865
it is contended that the Navigation Act is, to that extent, void and inoperative, and that the fees were
unlawfully demanded and should be returned. The Commonwealth contends, first, that on a true
construction of sec. 124 of the Merchant Shipping Act 1894 there is no repugnancy, and, next, if
there is, the Commonwealth Constitution empowers the Parliament to legislate fully on the subject
of navigation and shipping as part of foreign and inter-State commerce even to the extent of
inconsistency with Imperial legislation existing at the date of the Constitution and directly applying
to Australia.

As to repugnancy, the question primarily depends on the interpretation of the word "ship" in sec.
124. If "ship" there used in reference to a possession includes a ship registered in the United
Kingdom, there is possible repugnancy; if, however, it is in that connection confined to ships
registered in some possession as distinguished from the United Kingdom, then there is no
repugnancy because the present case would not be provided for by the Imperial Act.

The Merchant Shipping Acts.--The Merchant Shipping Acts 1894 to 1906 treat merchant shipping
as an Imperial subject. They indicate an endeavour to provide on a national basis for all
contingencies of British mercantile navigation throughout the Empire, partly by direct enactment
and partly by optional local enactment imperially sanctioned (secs. 711, 735 and 736). But the Acts
in one way or another cover the whole subject. As to the engagement of seamen there are various
provisions. Sec. 113, with a certain small exception immaterial here, provides that the master of
"every ship" shall, when sailing from any port in the United Kingdom, enter into an agreement--
called "the agreement with the crew"--and "in accordance with this Act" with every seaman whom
he carries to sea as one of his crew. Sailing from the United Kingdom his ship must be either a
foreign-going ship or a home trade ship; and penalties are provided by sec. 113 itself for carrying a
seaman to sea without "an agreement," that is, without any agreement at all. I may point out at once
that, if there is "an agreement," so as to escape the penalty of sec. 113, but the agreement used by
any person is, without reasonable cause, not in the form approved by the Board of Trade, sec. 722
makes it an offence even greater than that under sec. 113, the maximum penalty being double. This
demonstrates the importance attached by the Imperial Parliament to the requirement of sec. 114 that
the agreement shall be in the form approved by the Board of Trade. Sec. 114 enumerates certain
particulars which must be included in the agreement so that every man may know his obligations
and rights as to those matters. Among those particulars are those marked (g), namely, "any
regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful
punishment for misconduct which have been approved by the Board of Trade as regulations proper
to be adopted, and which the parties agree to adopt." Then in sub-sec. 3 it is enacted that "the
agreement with the crew"--which, by reference to sec. 113, means the agreement under the
Imperial Act--shall be framed so as to admit of such stipulations "to be adopted at the will of the
master and seaman" as are not contrary to law. Now, that, so far, is general as to all ships leaving the
United Kingdom either as a foreign-going ship or "a home trade ship"--in each case the United
Kingdom (or for a home trade ship the Channel Islands or the Isle of Man) being one terminus. Sec.
115 adds provisions for foreign-going ships, and sec. 116 for home trade ships. The object of that
sub-section (sec. 114 (3)) is of the highest importance. It is to secure that whatever is agreed upon
between master and seamen shall be contained in the written articles. In other words, the essence of
the statutory intention on the subject in the Merchant Shipping Acts is that "the agreement" shall in
itself be precise and complete, and nothing whatever shall be part of the actual agreement of the
parties except that which is contained in the articles under the Acts. Sec. 124 makes a general
provision for "the engagement of seamen abroad." It begins: "Where the master of a ship engages a
seaman." I stop there for a moment to consider the absolute generality of the words so far. "Abroad"
means anywhere outside the United Kingdom. "Ship" is the generic term for "every description of
vessel used in navigation not propelled by oars" (sec. 742). It is, of course, limited to British ships,
because that is the subject of the Act, and internationally that must be so understood. Then the
words quoted are expressed as to each individual instance of engaging a seaman, indicating that all
seamen engaged abroad on that ship are, whenever possible, to be protected by the section. Then the
places abroad where the Act contemplates possible protection are (1) British possessions and (2)
foreign ports where there is a British consular officer. As to British possessions where the ship is
registered, sec. 261 (d) leaves the matter to the "jurisdiction of the government of the British
possession in which the ship is registered." That is, local self-government is recognized as to ships
belonging to the local possession. But that leaves all other British possessions to be dealt with with
respect to all British ships. Sec. 124 says that when the engagement is in any British possession
other than that in which the ship is registered--the counterpart of sec. 261 (d)--the provisions of
this Act respecting agreements with the crew made in the United Kingdom shall apply with certain
modifications. That means, not that that part of sec. 124 is confined to ships registered in British
possessions, but that the engagement referred to is confined to British possessions where the ship is
not registered. The ship may be registered either in the United Kingdom or in some other British
possession, or, perhaps I should add, anywhere within the terms of sec. 4 so as to be within the
expression in sec. 2 (1) "registered under this Act." As to foreign ports, they are such as have a
British consular officer. Ex concessis the "ship" in relation to such a port includes a ship registered
in the United Kingdom. It is impossible, when we refer back to the word "ship," to say it has two
meanings which may be distributively applied to the two classes of places "abroad" specified by sec.
124.

I have so far considered sec. 124 upon its literal construction independently of authority. The case of
Ritchie v. Larsen[2], both in the argument of Mr. Hamilton (now Lord Sumner)[3] and in the
judgment of Channell J.[4], strongly supports the view I have taken. In Mr. Hamilton's argument it
was said: "Sec. 124 is intended to extend such provisions as those relating to engagement of seamen,
contained in secs. 113-115, to cases of engagement abroad." In the judgment accepting that view, it
is said: "It is quite clear that the main object of sec. 124 is to provide, in the case of seamen who are
engaged abroad, for matters which are dealt with by sec. 115 in the case of seamen engaged in the
United Kingdom." That case was confirmed in Rowlands v. Miller[5].

The suggested limited meaning of "ship" in relation to engagement in British possessions would
neutralize much of that intended protection. Sec. 260 makes a wide application, but I do not think
its function is to help out this point. The force of that section is in the word "sea-going" and to set at
rest any doubt as to how extensive among "ships registered in the United Kingdom" is the
application of Part II. "Sea-going" means simply that the ship does go to sea (Salt Union Ltd. v.
Wood[6]). The section, in short, is not intended to bring for the first time into Part II. "ships
registered in the United Kingdom" as a class, but, except where the context or subject matter forbids
it, to extend the part to all such of those ships as go to sea with the exceptions stated in the section
itself. Sec. 261 performs the same function for "sea-going British ships registered out of the United
Kingdom." Sec. 260 effectually brings the Niagara into the ambit of sec. 124, because, although it
is neither a "foreign-going" nor a "home trade" ship from the United Kingdom standpoint, it is a
"sea-going" ship and is registered in the United Kingdom. Unless, therefore, the law as it appears
from the Merchant Shipping Acts 1894 to 1906 be rendered inapplicable to Australia by the
Navigation Act of 1912-1920, the engagements referred to in the case fell to be governed by the
Imperial provisions.

Then, as to discharges, sec. 128 of the Act of 1894 requires the master to give a discharged seaman
a certificate of his discharge "in a form approved by the Board of Trade" under a penalty not
exceeding £10, and also by sec. 132 he is to deliver "in the manner provided by this Act a full and
true account, in a form approved by the Board of Trade" of the seamen's wages. By sec. 136 the
seaman where the discharge takes place before a superintendent must sign a release "in a form
approved by the Board of Trade." Again it is seen to be a constant and permeating principle that the
oversight and protection of the seaman is to require the intervention of the Board of Trade. The law
as to discharge stands in the same position as the law regarding engagement.

The Navigation Act 1912-1920.--Sec. 46 required the master of the Niagara when engaging a
seaman in Australia to enter into an agreement with him "in the prescribed form." "Prescribed" there
means prescribed by the Act or by regulations under the Act (Acts Interpretation Act 1904, sec. 9).
By sec. 425 the Governor-General (in Council) is the prescribing authority. To have proceeded to
sea without such agreement would have been punishable by a fine of £5 in respect of each seaman.
To use the form as approved by the Board of Trade would not afford an escape from contravention,
unless it happened to be prescribed by the Governor-General. It is obvious from an inspection of
sec. 46, and, indeed, of the group of sections headed "Division 8.--The Agreement," that, just as in
the Imperial Merchant Shipping Acts, a complete scheme is enacted. For the purpose of obtaining
that complete scheme it is required that the articles shall be in the form and to the effect provided
directly or indirectly by the Commonwealth Parliament. That is to say, the contractual obligations of
the parties shall be found complete in the agreement that conforms to Division 8. Both the Imperial
and the Commonwealth statutes are based upon the same fundamental idea. Abbott on Shipping,
14th ed., at p. 220 (following the 5th ed., at p. 433), points out that "in order to prevent the
mischiefs that frequently arose from the want of proper proof of the precise terms upon which
seamen engaged to perform their service in merchant ships" it was enacted in the reign of George
II., &c. The history of ships articles is there traced down to the Act of 1894.

Validity of the Navigation Act.--So far as the validity of the relevant provisions of the Navigation
Act depends on the extent of power granted by the Constitution, I can entertain no doubt whatever.
Every such provision is a recognized part of the subject of navigation and shipping and that subject
is, by sec. 98 of the Constitution, expressly included in the trade and commerce power enumerated
in sec. 51. But, conceding so much, the question is raised whether, by force of sec. 2 of the Colonial
Laws Validity Act 1865 (28 & 29 Vict. c. 63), the relevant Australian provisions are not "void and
inoperative" as being repugnant to the Imperial provisions. That question involves two important
considerations, namely, are the challenged provisions repugnant, and, if so, are they nevertheless
dominant by reason of the Commonwealth of Australia Constitution Act, itself an Imperial Act (63
& 64 Vict. c. 12)?

Repugnancy.--The only real danger of error as to this question is in the manner of applying the test
of repugnancy. What is to be avoided in the present case is meticulous inquiry whether, if all the
conditions in both sets of enactments were aggregated into one agreement, they could be humanly
observed or, if applied to the one discharge, the parties could comply with all. That is not the
present problem. One approximating it in principle might arise in relation to other Acts or even
other parts of these Acts. What we have to remember is a much broader proposition when the real
nature and import of the legislation is borne in mind. The Merchant Shipping Acts deal with the
subject of British merchant shipping from the standpoint of what is now recognized as the whole
British Commonwealth of Nations, and in some instances the Acts regulate the supremacy of law as
among or between the constituent units of that Commonwealth. Secs. 264 and 265 are signal
examples. The Commonwealth Act treats the subject matter from an all-Australian standpoint. State
legislation could deal with it only on a more limited basis. Therefore, for the purpose of detecting
repugnancy, if there be any, the attention of the Court is not to be concentrated on mere minute
verbal expressions or individual differences of requirements. What we have to measure is the broad
intention to treat Australian shipping, not as a separate integer, but as a component part of one
Imperial integer. Particular expressions are valuable in order to ascertain this purpose. The matter
resembles the case of a State industrial disturbance being regarded, not as a separate independent
disturbance, but as an indivisible part of an inter-State industrial dispute. The Merchant Shipping
Acts deal with the shipping of each part of the Dominion as part of British shipping, and the Acts
make their own exceptions. The Acts therefore intend, apart from their own exceptions, to make the
provisions which are relevant to this case cover the field, and to make the agreement required and
the discharge required the only agreement and the only method of discharge required by the law of
the Empire. Repugnancy to that central and commanding intention is repugnancy to the Acts, just as
State interference with a Commonwealth award, by specially regulating the State portion of an
Australian industrial dispute, would be repugnancy to Commonwealth law. My observations have
no reference to local legislation merely assistant to and for the better effectuation of the supreme
law applicable to the subject matter.

First, then, we have to define what is meant by "repugnancy" in the present connection. In Attorney-
General for Queensland v. Attorney-General for the Commonwealth[7] I have stated, with some
elaboration, my understanding of the word "repugnant" as used in the Colonial Laws Validity Act,
and have there traced to some extent the history of the word. I refer to what is there set out at length,
and merely reaffirm the conclusion that "repugnancy" is equivalent to inconsistency or contrariety.
In McCawley v. The King[8] my brother Rich and I stated our view of sec. 2 of the Colonial Laws
Validity Act 1865. Two further references may be made. One is the case of The Farewell[9], where
Stuart J., in the Vice-Admiralty Court, applied sec. 2 of the Colonial Laws Validity Act by giving
effect to a Dominion Act allowing a pilot two dollars a day, only so far as it was not in conflict with
the Merchant Shipping Act 1854 allowing only ten shillings and sixpence a day, the difference being
disallowed. The other reference is to Hearn's Government of England (1886), 2nd ed., p. 596.
Speaking of the supremacy of the Imperial Legislature, the learned author says:--"It was well
settled by common law, and it has been declared by an Act of Parliament passed in the year 1865,
which is worthy of your attention. Originally the rule ran, much in the same form in which power is
usually given to corporations to make by-laws, that a colonial Act must not be repugnant to the law
of England. Such a restriction, if it were construed literally, would have proved too severe; and
accordingly repugnancy was defined to imply, not diversity, but conflict; that is, if there were an
Imperial law and a colonial law on the same subject, but with different enactments, the Imperial law
must prevail." Those further references are in harmony with the cited references in the two cases
mentioned.

It remains to apply the principle in order to see whether there is repugnancy in the sense of
inconsistency or conflict between the Merchant Shipping Acts and the Navigation Act. When we
remember that each is aiming at the same thing, namely, to compel the making of an agreement
which shall formally, precisely, completely and exclusively set forth all the terms which are to
constitute and to dissolve the mutual contractual obligations of master and seaman, one of two
alternatives must be admitted: Either the two systems are identical or they are in conflict. You
cannot have at the same time, between the same persons and in respect of the same subject matter
two different agreements each complete and exclusive. One must, on ordinary principles of contract,
supersede or abrogate the other. Neither statutory system is established as an addition to the other.
Each assumes that it occupies the whole field. But each exercises a different authority, each
establishes its own distinct controlling agency, each agency operating independently, and necessarily
independently, of the other. A good test would be if we suppose the contested provisions in the
Navigation Act were contained in an Imperial Act not enacting any express repeal of any part of the
Merchant Shipping Act. Could it have been said the two sets of provisions could stand together?
Was the second set intended to supplement or to supplant the first? In Mitchell v. Scales[10] I quoted
from an American decision which is worth repeating after eighteen years. In Norris v. Crocker[11]
Catron J. said: "As a general rule it is not open to controversy, that where a new statute covers the
whole subject matter of an old one, adds offences, and prescribes different penalties for those
enumerated in the old law, that then the former statute is repealed by implication; as the provisions
of both cannot stand together." Of course a colonial Parliament cannot repeal Imperial legislation,
except where Imperial law so permits it, as in sec. 735 of the Merchant Shipping Act 1894, but the
test of whether its legislation is inconsistent with Imperial legislation is the same as if it had the
power of repeal. I am unable to understand how the two sets of enactments with which this case is
concerned can stand together, unless it can be shown--which seems to me impossible--that they are
identical; and not merely identical in terms but identical in obligation. For instance, if there be a
discharge in conformity with the Imperial Act, is the contractual tie completely dissolved? Or does
it still continue until the Australian law of discharge also operates? And, if there be a State law on
the same subject, must that be satisfied also before the relation of master and seaman is ended?

It was suggested that the Board of Trade might approve of the form prescribed by the Governor-
General, or the Governor-General might prescribe exactly what the Board of Trade approves. That
is not reasonably possible. But if it were, it would be futile and there would be no sense or virtue in
doing precisely the same thing twice, incurring double expense and liability to two sets of penalties
and double prosecutions under two sets of laws for the one state of facts. That was not the intention
of the Federal Parliament, and any construction of the Act that depended upon that intention would,
in my opinion, do scant justice to the sense of Parliament. The basic meaning of each Act being a
complete and exclusive agreement, they are mutually repugnant in this respect, and, unless the final
view presented by the Commonwealth be correct, namely, the supremacy of the Federal Act by
reason of the terms of the Imperial statute 63 & 64 Vict. c. 12, the Navigation Act must, by force of
the Colonial Laws Validity Act, so far give way to the Imperial Merchant Shipping Acts.

It may tend to further elucidate the matter if we suppose the State Parliament also passed a similar
law requiring the form of agreement to be prescribed by the State Governor in Council and fixing its
own penalties and fees. No doubt sec. 109 of the Constitution would be invoked to declare the
invalidity of the State law because, since the Commonwealth Act occupied the field, the State law
would be inconsistent with it. But, if that be conceded, how can the present case be regarded as not
one of repugnancy? And, if it be not conceded, then the master of a ship would be compelled to
enter into three different agreements on the same subject matter with three different sets of
consequences. I find it difficult to describe the situation that would be created by holding there is no
repugnancy.

The Constitution.--I have already said that inherently the Constitution by secs. 51 (I.) and 98
empowers the Commonwealth Parliament to pass such an enactment as the Navigation Act
provisions now under consideration. If there were no Imperial Act those provisions would be fully
operative. But, in presence of the Imperial provisions, have the Australian provisions any legal
force? It was suggested for the Commonwealth that they have, because, so it was urged, the
Constitution was passed after the Merchant Shipping Act 1894 and therefore intended to give power
to supersede it. But that view is not tenable. Neither the Merchant Shipping Act nor any other
Imperial Act then in existence either widened or narrowed the scope of the Constitution Act. That
Act speaks for itself and the powers of the Commonwealth are measured by its terms. For instance,
a mere future Merchant Shipping Act could not narrow its powers; and, if it did, the repeal of the
later Merchant Shipping Act would not restore the cancelled authority. That is quite different from
saying a future Merchant Shipping Act would not affect the force of Commonwealth legislation
passed under the authority of the Constitution. You have to assume the existence of a primarily valid
and operative Commonwealth Act in presence of an Imperial Act to which it is in part repugnant. I
lay no stress on the date of the Imperial Act, whether it has passed before or after the Constitution
Act. I predicate only that it is presently speaking and operating (see McCawley's Case[12]). The
mere passing of the Constitution would not affect the operation of the Merchant Shipping Act 1894,
and, if no Commonwealth legislation had been passed, no one would question the application of the
Imperial Act in Australia.

Given, then, the repugnancy between an existing Imperial Act and an existing Commonwealth Act,
what is the consequence? It seems to me plain that the constantly speaking sec. 2 of the Colonial
Laws Validity Act 1865 determines the matter. It declares that the Navigation Act "shall be read
subject to" the Merchant Shipping Acts 1894 to 1906, and "shall to the extent of such repugnancy,
but not otherwise, be and remain absolutely void and inoperative." The case falls within the plain
words of sec. 2 and within the equally plain words of Lord Halsbury L.C., speaking for a very
powerful Court, in In re R. v. Marais[13].

The necessary final conclusion is that both questions submitted in the special case for the opinion of
this Court should be answered in the negative.

Higgins J.

This is a special case stated with the concurrence of the parties, under Order XXXII., r. 1, for the
opinion of the Court. The plaintiffs (par. 11) claim to recover from the defendants two sums of £25
10s. and £26 12s. paid under protest to the superintendent at the port of Sydney, as fees for
witnessing the discharge and the engagement of seamen. These fees are payable at two shillings per
head, according to sec. 60 of the Navigation Act 1912-1920, and Statutory Rules 1922, No. 34, reg.
9. The main questions are--were these fees, (a) for discharge, (b) for engagement, legally payable?

The action is to recover the amount of these fees, and nothing else. Under r. 1 of Order XXXII. the
parties are entitled to get the opinion of the Court on the questions of law arising in the cause; and
the question, are these fees legally payable, does arise in the cause, is necessary for its decision. The
difficulty of law arises from the fact that the Merchant Shipping Acts in dealing with discharge and
engagement of seamen say nothing about fees, whereas the Australian Navigation Act requires them
to be paid (sec. 60); and reg. 9 of the Statutory Rules 1922, No. 34, provides: "The fee for
engagements or discharges effected before a superintendent shall be, for each seaman engaged or
discharged, two shillings." The plaintiffs contend that this provision for payment of fees is
"repugnant" to the British Acts extending to Australia, and is therefore invalid, under sec. 2 of the
Colonial Laws Validity Act 1865.

Now, I cannot see any substantial ground whatever for the main contention of the Commonwealth--
the contention that the Colonial Laws Validity Act does not apply to laws, such as the Navigation
Act, made under the Australian Constitution. It would, no doubt, be convenient for Federal
Ministers and their staffs, in framing Navigation Acts under the powers contained in the
Constitution (secs. 51 (I.), 98), to feel that they can devise a complete and consistent system, suited
for Australian conditions, and unfettered by any English Acts; and it may be that the British
Parliament will some day confer such a power on the Commonwealth Parliament. But it is the duty
of this Court to give effect to the law as it stands. We have in particular to look at sec. 2 of the
Colonial Laws Validity Act; and as its words cannot be too carefully weighed in a matter involving,
as this case does, the constitutional relations of Australia to the Empire, I may repeat them:--"Any
colonial law which is or shall be in any respect repugnant to the provisions of any Act of
Parliament" (the British Parliament) "extending to the colony to which such law may relate ... shall
be read subject to such Act ... and shall, to the extent of such repugnancy, but not otherwise, be and
remain absolutely void and inoperative." Now, "colonial law" in this Act is defined as including (I
weld two of the definitions together) any law made by the legislature of any of the King's
possessions abroad in which there shall exist a legislature; but the Channel Islands, the Isle of Man
and British Indian territories are excepted. The words "British possession," as interpreted in the
British Interpretation Act of 1889, would include Australia, because it includes parts of the
Dominions which are under both a central and a local legislature (sec. 18); but that section does not
apply to Acts passed before 1889, and therefore does not apply to the Colonial Laws Validity Act
1865. In my opinion, however, there is no doubt that an Act passed by the Australian Parliament is a
"colonial law" within the meaning of the British Act of 1865; for it cannot be reasonably contended
that Australia is not one of the "King's possessions abroad." Then the words "is or shall be" show
that sec. 2 applies to future times and future Acts as well as to the times of 1865 and to then existing
Acts. It seems to me clear, also, that many of the provisions of the Merchant Shipping Acts,
including Part II. of the Act of 1894 and the sections of the Acts of 1894 and 1906 relating to the
discharge and engagement of seamen, "extend" to Australia, and to discharge and engagement in
Australia (secs. 124 and 260 of the Act of 1894; secs. 30, 31, 49 (3) of the Act of 1906). It is stated
in the case that this ship Niagara is registered in the United Kingdom; and Part II. of the Merchant
Shipping Act 1894 applies to it and to its owner, master and crew (sec. 260).

Under these circumstances, sec. 2 of the Colonial Laws Validity Act applies to the Navigation Act
and the Regulations made thereunder; and the result, according to sec. 2, is that this latter Act must
be read "subject to" the Merchant Shipping Acts, and that, if in any respect repugnant thereto, it
must, "to the extent of such repugnancy, but not otherwise, be absolutely void and inoperative." In
coming to this conclusion, I have not neglected the warning uttered in the United States, and
repeated in Australia, to remember that it is a Constitution we are construing. But at present we are
not merely construing the Constitution: we are examining the relation of the Constitution to other
British Acts, equally binding. It is true that the Constitution Act is a later Act than the Colonial
Laws Validity Act; but it does not repeal the earlier Act, either expressly or by necessary implication.
It does not even refer to it. Nor is there any provision in the earlier Act which is inconsistent with
the later; in such a case the later would prevail. Both Acts can be obeyed at the same time.
But what is the meaning of the words "repugnant" and "repugnancy" in sec. 2? What was the
Colonial Laws Validity Act meant to achieve? According to the recital in the Act itself, it was to
remove doubts: "Whereas doubts have been entertained respecting the validity of divers laws
enacted or purporting to have been enacted by the legislatures of certain of Her Majesty's colonies,
and respecting the powers of such legislatures, and it is expedient that such doubts should be
removed." It had been a common practice for the British Parliament, in granting constitutions to
British possessions, to provide that no law should be made by the local legislature which is
"contrary to the laws of England," or to that effect; and much uncertainty, difficulty and controversy
had arisen from the use of the words. For instance, in the Act of 9 Geo. IV. c. 83, conferring a
Council constitution on New South Wales, the Governor with the advice of the Council was
empowered to make laws and ordinances "not being repugnant to this Act" or to any charter, &c.,
"or to the laws of England." Was New South Wales not to have power even to modify or negative
the common law of England where that law did not seem to be adapted to the circumstances of the
colony? The object of the Act of 1865 was not so much to preserve the rights of the British
Parliament against encroaching colonial legislatures, as to make it clear that a colonial legislature,
acting for the colony in pursuance of the powers of legislation conferred, might act freely and
without constraint from London, excepting only so far as a British Act, applying or extending to the
colony, definitely contradicted the colonial legislation. This view is supported by the expression of
the late Professor A. V. Dicey, that the Act of 1865 was "the charter of colonial legislative
independence" (Law of the Constitution, 5th ed., p. 99). The British Parliament by the Act of 1865
expressly confined the principle of invalidity for repugnancy to repugnancy between the local law
and some definite provision of a British Act extending to the colony; and prevented the local Act
from being treated as invalid in all its sections and provisions if it were invalid in one. Hence the
words in sec. 2, "to the extent of such repugnancy, and not otherwise."

Now, I do not think that the full effect of these latter words in sec. 2 has been sufficiently
appreciated. They really convey a positive grant to the colonial legislature--a grant of validity to
the Acts of the legislature even where they deal with matters dealt with by a British Act extending to
the colony; for the colonial Act is to be valid except to the extent of any actual repugnancy or direct
collision between the two sets of provisions. Such a concession on the part of the supreme
Parliament marks a very high level of liberality, foresight, statesmanship.

It is instructive to study the attitude of the English and the American Courts when faced with similar
problems. In England the same precise problem could hardly arise, for there are not legislatures
having equal power to make laws on the same subject. But a question frequently arises as between
an earlier Act and a later Act. The question is not precisely the same, for in such cases the solution
rests on intention, to be ascertained by construction of words in the later Act; whereas in our case
the rule of repugnancy operates in spite of intention. Yet there is a series of cases in the Queen's
Bench Division, close to one another in date, which throw light on the subject. In Kutner v.
Phillips[14] the late A. L. Smith L.J. said: "Unless two Acts are so plainly repugnant to each other,
that effect cannot be given to both at the same time, a repeal will not be implied." In Churchwardens
&c. of West Ham v. Fourth City Mutual Building Society[15] the same Lord Justice puts the test of
repeal by subsequent legislation in these words: "Are the provisions of a later Act so inconsistent
with, or repugnant to, the provisions of an earlier Act that the two cannot stand together?" In
Crocker v. Knight[16] Lindley and Kay L.JJ. applied the same test as between the Trade Union Act
of 1871 and the Trade Union Act of 1876. In Tabernacle Permanent Building Society v. Knight [No.
1][17], a case in the House of Lords, the Lord Chancellor, Halsbury, and Lords Herschell and Field
decided to the same effect; Lord Herschell declaring the test to be, can you read the provisions of
the later Act into the earlier, without any conflict between the two; and Lord Field declaring that it
was not enough to show that the later Act is contrary to the sense and principle of the earlier (see
also Phipson v. Harvett[18], the turnpike tolls case). In the United States the precise question often
arises as between the Constitution and an Act; and it is held that if part of the Act is
unconstitutional, the Courts should not declare the remainder bad also, unless it is clear that the
legislature would not have passed the constitutional part without the unconstitutional part. Even if
the two parts are contained in the same section, effect may be given to the constitutional part and
refused to the unconstitutional part--may be given to some classes of cases specified and refused to
others also specified in the same sentence (Cooley's Constitutional Limitations, 7th ed., p. 246, &c.;
Jaehne v. New York[19]). If there is a reasonable doubt, the question should be settled in favour of
the Act (Cooley's Constitutional Limitations, pp. 252, 253; and see per Marshall C.J. in Fletcher v.
Peck[20]).

But still we have to find the full meaning of the word "repugnant" itself, as used in the Act.
According to the Oxford Dictionary, it has this meaning--as its primary meaning: "contrary or
contradictory to, inconsistent or incompatible with, divergent from, standing against, something
else"; but the meaning "divergent from, standing against, something else" is marked as obsolete. No
doubt the word "repugnant" is often used loosely and rhetorically; but in considering Acts of
Parliament, the strict meaning should prima facie be applied.

We have had to consider the word "inconsistent" in this Court, as applied to Acts of Parliament and
things done and regulations framed under Acts of Parliament. In the case of Australian Boot Trade
Employees' Federation v. Whybrow & Co.[21] these questions were asked by the President of the
Commonwealth Court of Conciliation:--(1) Is it competent for this Commonwealth Court under the
Federal Constitution to make any award which is inconsistent with any and if so which of the said
awards of the State Wages Boards? (2) Is there in the proposed award any provision or provisions
and if so what provision or provisions inconsistent with any and if so which of the awards or
determinations of the State Wages Board, and in what respects? The Court, by a majority, held that
the Commonwealth Court had no power to make an award inconsistent with a determination of a
State Wages Board; but by a still greater majority--if not by all the members of the Court--it was
held that an award of the Commonwealth Court is not "inconsistent" with a State law if compliance
with the award is consistent with obedience to the State law; and that therefore an award fixing a
minimum rate of wages higher than that fixed by a determination of the State Wages Board is not,
for that reason alone, "inconsistent" with that determination. The late Chief Justice Griffith said that
the test of inconsistency of the two Acts is whether the proposed Act is consistent with obedience to
both directions--its own directions and the direction of the other Act; and he referred[22] to his
opinion expressed to the same effect in Federated Saw Mill &c. Employees' Association of
Australasia v. James Moore & Sons Pty. Ltd.[23]. Barton J. said that the term "inconsistency" is
used in the sense of incompatibility, so that to obey one provision is to disobey the other. O'Connor
J. concurred; and I concurred--saying that the Commonwealth award would impose an additional
duty, not an inconsistent duty. It is difficult to see any substantial distinction between inconsistent
provisions and repugnant provisions in such a connection. In sec. 109 of the Constitution, the word
"inconsistent" is used, as between a State law and a Commonwealth law; if they are inconsistent, the
State law is, "to the extent of the inconsistency, invalid." But if there is any distinction, the word
"repugnant" covers a narrower ground--requires a kind of direct hostility to support its application;
as in Cicero, Top. xii., fin.--quicquid repugnat, id ejusmodi est, ut cohærere nunquam possit. Again,
in the case of Attorney-General for Queensland v. Attorney-General for the Commonwealth[24], it
was argued that the Land Tax Assessment Act of the Commonwealth was repugnant to the
Constitution of New South Wales (18 & 19 Vict. c. 54) which gives the State Legislature the control
and management of waste lands. It was urged that the Commonwealth Act interfered with the New
South Wales Legislature in exercising its discretion as to lands, &c. But it was pointed out by my
brother Isaacs that, under sec. 106 of the Constitution, the State Constitution has to give way to the
requirements of the Federal Constitution; and that under sec. 109, whenever a State law is found to
be "inconsistent" with a law of the Commonwealth, it is pro tanto invalid. I find I said that sec. 2 of
the Colonial Laws Validity Act obviously refers to the case of a colonial legislature making a law
which, but for the existence of some Act of the British Parliament extending to the colony, is within
the ambit of the powers of the legislature, but which is, in some one or more provisions "repugnant"
to the British Act. I said I was strongly inclined to think that no colonial Act can be repugnant to an
Act of the British Parliament unless it involves, either directly or indirectly, a contradictory
proposition--probably, contradictory duties or contradictory rights (see also Fox v. Robbins[25]).
As there was no command or proposition in the Land Tax Assessment Act which contradicted the
Act 18 & 19 Vict. c. 54, however the former Act might affect the exercise of the powers under the
later Act, there was, in my opinion, no repugnancy; and the later Act was therefore valid. In other
words, I thought, and still think, that Australian legislation, if enacted within the powers expressly
conferred by the Constitution, covers all Australian territory, except so far as a wall erected by the
British Parliament actually excludes it.

Looking, now, in the light of this view of the word "repugnant," at the first question asked, we have
to find whether the provisions in the Navigation Act and Regulations (secs. 60, 425 (i); Statutory
Rules 1922, No. 34, reg. 9) for payment of fees on discharge is "repugnant" to the Merchant
Shipping Acts. The relevant sections of the Merchant Shipping Acts are secs. 30 and 31 of the Act of
1906. Sec. 30 forbids the master of a British ship to discharge a seaman at any place out of the
United Kingdom unless he previously obtain, endorsed on the agreement with the crew, the sanction
of the proper authority as defined, "but that sanction shall not be refused where the seaman is
discharged on the termination of his service." Then, under sub-sec. 2, the authority to whom an
application is made for sanction under this section may, and if not a merchant, shall, examine into
the grounds on which a seaman is to be discharged at a place out of the United Kingdom, may
administer oaths, &c., and "may grant or refuse the sanction as he thinks just, but such sanction shall
not be unreasonably withheld." According to par. 3 of this case as stated by the parties, the master
"complied with all the requirements of the Merchant Shipping Acts for the discharge of seamen,"
and then requested the superintendent to allow the discharge to be effected, "in his presence." Sec.
30 (2) speaks of an application for sanction, after examination of the grounds; but as the sanction
cannot be refused where a seaman is, as in this case (see par. 3), discharged on the termination of his
voyage, I may treat the position as if the master duly made his application for sanction under the
Merchant Shipping Acts. The defendant refused to allow the discharges to be effected in his
presence unless and until the conditions including the payment of fees with respect to the discharge
of seamen imposed by the Navigation Act and the Regulations thereunder were also complied with
(par. 4). Thereupon the plaintiff paid the fees and effected discharges in accordance with the
conditions imposed by the Navigation Act and the Regulations (par. 5). I take these statements as
meaning, in substance, that the superintendent refused to do what was necessary for the discharges
unless the master complied with the conditions of the Navigation Act as well as with the provisions
of the Merchant Shipping Acts--in particular as to the payment of the fees. The payment of the fees
is the only subject for relief in this action; and the only question of law arising in the action is this--
was the master under a legal obligation to pay them? Is the direction to pay them repugnant to any
direction in the British Act? For my part, I can see no repugnancy merely because the Merchant
Shipping Act does not prescribe a fee, and the Navigation Act does; and especially where the
Commonwealth has to pay the officer, and the British Government has not. The Commonwealth
Parliament, having full competence to make any law for Australia with respect to navigation and
shipping in inter-State and foreign commerce (the Constitution, secs. 98, 51 (1)), has enacted that
for any discharge within Australia before its officer a fee shall be paid; and the British Parliament
has not anywhere said that a fee shall not be paid. In my opinion, there is no contradiction, no
repugnancy, between the Acts so far as the conditions of both Acts can be obeyed. That was the test
of repugnancy adopted in Gentel v. Rapps[26]. This was a case of tramway by-laws, and offences
thereunder; but, paraphrasing the words of Channell J. to suit the present position, I should say that
a colonial Act is not repugnant to the Merchant Shipping Acts merely because it imposes on the
master an additional duty in discharging a seaman in the colony; but that it is repugnant if it imposes
an additional duty which the Merchant Shipping Acts forbid.

But in this present case there is, I think, a clear repugnancy due to the provision in sec. 30 of the
Merchant Shipping Act 1906 that "sanction shall not be refused where the seaman is discharged on
the termination of his service"; and these seamen were, as the case states, discharged on the
termination of their voyage. The Australian Parliament says in effect "Do not give sanction unless
the master pay two shillings"; the British Parliament says, "Do not refuse sanction, on any ground,
to a discharge on the termination of a voyage." The British command must be obeyed.

With respect to the engagement of seamen, the same legal principles apply; but I cannot find any
repugnancy between the British and Australian Acts as to the payment of fees imposed by the
Australian Act. Under sec. 124 of the Merchant Shipping Act of 1894, as to the engagement of
seamen "abroad," the master of the Niagara must enter into an agreement in accordance with the
Act (sec. 113), and must engage the seamen before a superintendent; and the superintendent must
ascertain that the seaman understands the agreement before he signs it, and must attest the signature.
There is no provision negativing the right to withhold sanction as in the provisions for discharge, or
forbidding the imposition of other conditions by the law of the appropriate local Parliament. Under
these circumstances, I am of opinion that the master was required "by law" to pay the fees for
engagement.

To say that this result is not that intended by the Federal Parliament is no answer to this view of the
law. That Parliament meant to occupy the whole field of agreements made in Australia, intended
that its Act and Regulations should form a complete scheme, totus teres atque rotundus; but the
Colonial Laws Validity Act operates on that intention and prescribes how far it can be carried into
effect. The Merchant Shipping Acts are to have their full operation; and the Navigation Act is to
have its full operation except so far as it contradicts the Merchant Shipping Acts. If the Navigation
Act were to be treated within this limited common area, as if it were a by-law made under the
Merchant Shipping Acts, the position would be somewhat similar.

But this brings me to consider the question asked, and the kind of answers which this Court should
give. Those who settled the case are not content with asking whether the directions to pay fees are
repugnant to the British Acts, but whether the master "was required by law to comply with the
conditions (including the payment of fees) with respect to the discharge of seamen" imposed by the
Navigation Act and Regulations. This question would involve an answer in the form of a universal
affirmative or a universal negative; and, holding the view which I have stated with regard to
repugnancy, I do not think that the question should be answered in this form. As I have stated in the
beginning of my judgment, the special case can ask us for an opinion as to questions of law arising
in the cause; and here the only cause, or action, is for recovery of fees paid. Par. 11 of the case states
explicitly that "the plaintiffs claim to recover from the defendants the sums of £25 10s. and £26
12s."; and par. 13 shows that it is only the recovery of these sums that is the matter litigated. We
have no right or duty to decide questions which do not arise in the action, no right to decide
questions which are unnecessary for the recovery of these moneys. Above all, we should not decide
a grave constitutional point, involving the validity or invalidity of an Act of Parliament, without
being compelled to do so in working out justice as between the litigants as to the matters
substantially in issue.

Much stress has been laid on the fact that under the Merchant Shipping Act 1894 the Board of Trade
has to approve of any ("a" not "the") form of agreement with the seamen, and that under the
Navigation Act the Governor-General has to prescribe the form. But it does not necessarily follow
that the form prescribed by the Governor-General may not be approved by the Board of Trade. This
is an additional ground for not deciding any question which does not actually come before us,
legitimately and in due course.

In my opinion, the answers should be (1) that under the circumstances stated the master was not
required by law to pay the fees imposed by the Navigation Act for discharge of seamen; and (2) that
the master was required by law to pay the fees imposed by the Navigation Act for the engagement of
seamen.

Rich J.

In my opinion the questions should be answered in the negative. So far as the subject matter of the
Navigation Act provisions depends upon the Constitution, they are fully authorized. But they are, in
my opinion, in conflict with the Merchant Shipping Acts 1894 and 1906. Those Acts reduce to a
legislative system the Imperial scheme of regulating shipping for the British Empire and they apply
to the Dominions. Part of that scheme is to provide for the engagement and discharge of seamen on
British ships, not only in Great Britain, but in the Dominions overseas, even in foreign parts where
there are British consular officers. Special provision is made for local jurisdiction in the case of
ships registered locally. But in a case of a ship, like the Niagara, not registered in Australia, the
Imperial Act applies so as to regulate the employment and discharge of the seamen in Australia. I
think it is a case of legislative conflict for two Acts to prescribe, for the same things, regulations that
would clash. Two agreements in different terms for the same voyage would clash. The consequence
is that there is repugnancy between the two Acts. I have already, in collaboration with my brother
Isaacs, stated in McCawley v. The King[27] my opinion as to the construction of the Colonial Laws
Validity Act. Sec. 2 of that Act applies, with the result that no operative effect can be given to the
clauses of the Navigation Act on which the defendants rely. In my opinion the case of In re R. v.
Marais[28] is in point. For these reasons I come to the conclusions above stated.

Starke J.

Judgment should, in my opinion, be entered for the plaintiffs. The facts have been so fully stated in
the opinions of the Chief Justice and of my learned brethren who have preceded me that I have but
little to add.

It was hardly denied in argument that the Commonwealth was subject to the provisions of the
Colonial Laws Validity Act 1865. But it was claimed that the Constitution, particularly sec. 51, pl. I.,
and sec. 98 created a new source of power, unaffected by the Colonial Laws Validity Act, or, at least,
gave plenary power to the Parliament of the Commonwealth to repeal Imperial legislation extending
to Australia, upon the subject matter within the ambit of those provisions. The point is not new: it
has been mooted in Canada, and, to some extent, in Australia (see Keith's Responsible Government
in the Dominions, vol. i., ch. 3, pp. 412-423, and ch. 7, pp. 1190-1194; Lefroy's Canada's Federal
System, pp. 57-58). If we remember, however, the absolute nature of the legislation of the Imperial
Parliament, and that the Colonial Laws Validity Act is always operating upon laws within the scope
of its provisions, then there is no room for doubt that any law of the Commonwealth repugnant to
the provisions of an Imperial Act extending to the Commonwealth is, to the extent "of such
repugnancy, but not otherwise, absolutely void and inoperative."

On the question of repugnancy in the present case, I am in general agreement with what my brother
Isaacs has said. And I would add that the Commonwealth has attached the fees claimed, in this case,
to engagements and discharges of seamen made and given pursuant to its own Navigation Act.
Consequently we have not to consider whether the Commonwealth could authorize one of its
officers, performing the function of superintendent under the Merchant Shipping Act 1894, to
charge fees for services so rendered by him.

Both questions answered in the negative. Judgment for the plaintiffs with costs.

Solicitors for the plaintiffs, Creagh & Creagh.

Solicitor for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[1] (1902) A.C., at p. 54.

[2] (1899) 1 Q.B. 727.

[3] (1899) 1 Q.B., at p. 729.

[4] (1899) 1 Q.B., at p. 732.

[5] (1899) 1 Q.B. 735.

[6] (1893) Q.B. 370, at p. 374.

[7] [1915] HCA 39; (1915) 20 C.L.R. 148, at pp. 166-168.

[8] [1918] HCA 55; (1918) 26 C.L.R. 9, particularly at p. 50.

[9] (1881) 7 Queb. L.R. 380.

[10] [1907] HCA 66; (1907) 5 C.L.R. 405, at p. 417.

[11] (1851) 13 Howard 429, at p. 438.

[12] (1918) 26 C.L.R., at p. 50.

[13] (1902) A.C., at p. 54.

[14] (1891) 2 Q.B. 267, at p. 272.

[15] (1892) 1 Q.B. 654, at p. 658.

[16] (1892) 1 Q.B. 702.
[17] (1892) A.C. 298.
[18] (1834) 1 C. M. & R. 473.
[19] (1888) 128 U.S. 189.
[20] [1810] USSC 10; (1810) 6 Cranch 87, at p. 128.
[21] [1910] HCA 8; (1910) 10 C.L.R. 266.
[22] (1910) 10 C.L.R., at p. 286.
[23] [1909] HCA 43; (1909) 8 C.L.R. 465.
[24] [1915] HCA 39; (1915) 20 C.L.R. 148.
[25] [1909] HCA 81; (1908-09) 8 C.L.R. 115.
[26] (1902) 1 K.B. 160.
[27] (1918) 26 C.L.R., at p. 50.
[28] (1902) A.C., 51.

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