ships whose port of destination is outside the Commonwealth will also not be subject to Commonwealth law.

The Parliament of the Commonwealth has, under sections 51 and 98 of the Constitution, power to make laws relating to navigation and shipping. That power is restricted to making laws applicable to the Commonwealth and operative within the three-mile limit all round the ocean boundary of the Commonwealth. In order to make a Commonwealth law applicable to and operative on ships going from one part of the Commonwealth to another, and in so doing passing over the high seas outside the three mile limit, it was necessary to extend the power given by section 98. This is done by clause 5 of the Act; without which the laws of the Commonwealth would only be operative within the three mile limit. By that clause the laws of the Commonwealth are in force on British ships on the high seas outside the three mile limits if they are on a voyage which both begins and ends within the Commonwealth. (Mr. R. E. O'Connor's speech in the Legislative Council of N.S. W., Parliamentary Debates, 1897, p. 3017. Mr. E. Barton's speech in the Legislative Council, N.S. W., idem., p. 3081.)

BRITISH SHIPS WITHIN THE COMMONWEALTH.-Clause 5 provides that the laws of the Commonwealth shall be in force on all British merchant ships whose first port of clearance and whose port of destination are within the Commonwealth. There are two classes of British ships which come within the meaning of this clause: (1) Intercolonial vessels exclusively engaged in the Australian trade; (2) ocean going vessels arriving on the Australian coast and temporarily staying and engaging in trade between the ports of the Commonwealth; in so doing beginning and completing new voyages. For the purposes of this clause, ships which come within the conditions specified will be considered as within the jurisdiction of the Commonwealth from the beginning to the end of their respective voyages, even though during the course of their voyages they travel across the high seas hundreds or even thousands of miles beyond the limits of the Commonwealth. The first port of clearance of a ship bound by the laws of the Commonwealth must be within the Commonwealth, and its port of destination must be within the Commonwealth. The combination of these two conditions is required; they mark the beginning and end of a continuous voyage. For example, a steamer starts from her headquarters-say Melbourne; thence she proceeds to Tasmania, thence to New Zealand, thence to Samoa, thence to Fiji, thence to New Caledonia, thence to Brisbane, thence to Sydney, thence to Melbourne. During the whole of this voyage the laws of the Commonwealth would be in force in such a vessel. In the course of her journey she would traverse regions far beyond the limits of the Commonwealth; yet by the application and extension of the principle of extra-territoriality-described by some jurists as a fiction, though a very useful one-the ship is deemed to be a part of the Commonwealth floating on the high seas.

If it be asked what kinds of Commonwealth laws could reasonably be brought into operation on board a Commonwealth ship sailing a thousand miles away from Australia, attention may be drawn to those laws relating to shipping and navigation which have hitherto been within the competency of the various Australian legislatures, but which under the Commonwealth will be vested in the Federal Parliament Attention may be

also drawn to some of the other powers conferred on the Federal Parliament, such as those relating to trade and commerce, weights and measures, fisheries beyond territorial limits, the service and execution of civil and criminal process, and the enforcement of the judgments of the Courts of the States; also immigration and emigration, influx of criminals, external affairs, the relations of the Commonwealth with the isles of the Pacific, and the naval and military defences of the Commonwealth. It might be extremely advisable, and in fact absolutely necessary, that the laws of the Commonwealth, in reference to matters such as these, should follow a Commonwealth ship and operate upon it wherever it went.

PROPOSED IMPERIAL AMENDMENT.-When the Commonwealth Bill was under the consideration of the Imperial Government in March, 1900, the Law Officers of the Crown

proposed the omission of the words of Clause 5, "in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth." (See Historical Introduction, p. 229, supra.) It was suggested that there was no constitutional, or practical, necessity for the appearance of those words in the Bill. It seemed to be thought that all that was desired was a grant of power to the Commonwealth to control the coasting trade This power, it was pointed out, the Federal Parliament would have under section 736 of the Merchant Shipping Act, 1894, which is not confined in its operation to the coasting trade while in territorial waters. Moreover, the words, "first port of clearance" and "port of destination" in the clause in question were not free from ambiguity, and embarrassing questions might be raised as to the law applicable to a ship clearing from one Australian port for another after coming to Australia from a port in some other part of Her Majesty's dominions.

In reply to this objection the Australian Delegates drew attention to section 20 of the Federal Council Act, 1885 (see supra). It was observed that the provision of Clause 5 of the Draft Bill was much more restricted than that made by the Act of 1885. Under the present measure the provision was made to apply to cases in which a British ship begins and concludes her voyage within the limits of the Commonwealth. But section 20 of the Federal Council Act applied to every British ship which commenced her voyage in any one of the colonies concerned, and also to every British ship which concluded her voyage in any one of them. In the former case the Federal Council Law would apply to a British ship on the whole of her voyage from Australia to a port beyond the Commonwealth; in the latter case to a British ship on the whole of her voyage from any point beyond the Commonwealth to Australia. In the present measure, so wide an application was not for a moment desired to be given to any law of the Commonwealth ; yet it was now sought to further restrict, in the hands of a much more competent legislature, a power which 15 years ago the Imperial Parliament did not consider too wide for a much inferior body: a body neither elective nor bi-cameral, and lacking both a responsible executive and a Treasury. Dealing with the suggestion that the matter was sufficiently provided for by section 736 of the Merchant Shipping Act, 1894, the Delegates argued that if that view were correct then the phrase objected to was at worst a redundancy and therefore harmless. Section 736 gave power to the Legislature of any English possession to make laws regulating its coasting trade under certain conditions. It was true that the term "British Possession," whether as defined in the Act of 1869 or in the Interpretation Act of 1889, which preceded the present Merchant Shipping Act, would include such a Possession as the Commonwealth of Australia, which under the Interpretation Act would be deemed to be one British Possession including all parts under the Central Legislature. The expression "coasting trade" was not defined in any of the Acts cited; it may be taken to include the trade of vessels plying merely between the ports of a Possession within territorial limits. But the provision in the Commonwealth Bill, to which exception had been taken, would apply to such ships, on a voyage solely between two ports of the Commonwealth, even outside the threemile territorial limit; the beneficial effect therefore would be, that a vessel on such a voyage would not be exposed to the anomaly of being subject to one set of laws at 2 miles from the coast, and to another set of laws at 3 miles from the coast. That this should be prevented was surely not too much to ask. Moreover, the provision in the Bill removed a further anomaly by protecting a vessel which passed from the territorial waters of one colony into those of another from being subjected to a change of laws in that very operation, and by applying to her the uniform laws of the Commonwealth during the whole of her passage between Commonwealth ports While, then, the power was less than that conceded to the Federal Council, never abused, it was larger than that conceded by the Merchant Shipping Act larger only for the most beneficial purposes. The reasonableness of the right appeared the more clearly when it was considered that one of the most useful of the Constitution was the facilitation of trade between the several

363

an extent not hitherto possible, with a clear tendency towards obliterating in respect of commerce those arbitrary lines between colony and colony, which in the past have been productive of so much friction and hindrance. (House of Com. Pap., May 1900, p. 15.)

The Colonial Secretary, in answer to this contention, admitted that the words of section 20 of the Federal Council Act were very wide, perhaps unduly so, and if the powers thereby conferred had been freely exercised he thought grave difficulties would certainly have arisen. The analogy of the Federal Council Act was, however, in his opinion incomplete, inasmuch as it was contemplated that all British possessions in Australia might be represented in the Federal Council, "whereas the operation of this Bill is at present confined to five Australian colonies." (See House Coms. Pap., May, 1900, p. 24.)

The Imperial Government, however, did not insist in the proposed omission of the words relating to British ships. Although those words were omitted in the first draft of proposed amendments submitted to the Delegates, they were restored in the Bill as actually introduced in the House of Commons. (See House Coms. Paps., May, 1900, p. 19.)

If a British vessel began a voyage from any port outside the Commonwealth, then the port whence she started on her voyage would be the "First Port of Clearance," and consequently she would be exempt from the operation of the clause. If, upon the completion of that voyage by disembarking her passengers and discharging her cargo, she were chartered to carry cargo or passengers from one port of the Commonwealth to another, her first port of clearance on the new voyage, as well as her "port of destination," would be within the Commonwealth, and she would carry Commonwealth law with her from the beginning to the end of the local voyage.

$40. "The Queen's Ships of War."

Public ships of war are regarded as floating fortresses representing the sovereignty and independence of the country to which they belong. "A ship of war retains its national character with all its incidental privileges and immunities in whatever waters it may go, but if members of the crew leave the ship or its tenders, or its boats, they are liable to the territorial jurisdiction of the country into which they go. Even the captain is not considered to be individually exempt in respect of acts not done in his capacity as agent of his State. In his ship he is protected; he has entire freedom of movement; he is under no obligation to expose himself to the exercise of the jurisdiction of the country in whose ports, harbours, bays, rivers, or other territorial waters he may find himself; if he voluntarily does so he may be fairly expected to take the consequences of his acts." (Hall's International Law [1895], p. 205.) Although the extra-territoriality of a pub

are parts of the Commonwealth, and such colonies or territories as may be admitted into or established by the Commonwealth as States; and each of such parts of the Commonwealth shall be called "a State."

66

Original States" shall mean such States as are parts of the Commonwealth at its establishment.

HISTORICAL NOTE. - Clause 5 of the Commonwealth Bill of 1891 was as follows:"The term 'The States' shall be taken to mean such of the existing colonies of New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia, and the Province of South Australia, as for the time being form part of the Commonwealth, and such other States as may hereafter be admitted into the Commonwealth under the Constitution thereof, and each of such colonies so forming part of the Commonwealth shall be hereafter designated a State."

At the Adelaide session, 1897, the clause was introduced and passed in the same words. (Conv. Deb., Adel., pp. 625-6). At the Sydney session, a suggestion made by the Legislative Council of New South Wales (where it had been originated by Mr. R. E. O'Connor) to define "Original States" and " New States," was discussed; and ultimately the definition of "Original States" was agreed to. On Mr. Solomon's motion, the words "including the Northern Territory of South Australia" were agreed to. (Conv. Deb., Syd. [1897] pp. 231-9, 986-7.) At the Melbourne session, drafting amendments were made before the first report; and also after the fourth report, when the words " Colony' shall mean any colony or province" were added.

In the Bill as introduced in the Imperial Parliament, the following words were added to the definition of Commonwealth :-" and the laws of the Commonwealth shall be colonial laws within the meaning of the Colonial Laws Validity Act, 1865." In Committee, these words were omitted, and the words "Colony' shall mean any colony or province"--which it was thought might raise a doubt as to the application of the Colonial Laws Validity Act-were also omitted. (See pp. 222-248, 351-2, supra.)

The definitions in the Act are remarkably few, being confined to the words "Commonwealth" and "State"--both old English words which receive by this Act a new technical application--and the phrase "Original States." Every other word and phrase of the Constitution is left to be construed from its natural meaning and its context.

It is safer to abstain from imposing, with regard to Acts of Parliament, any further canons of construction than those applicable to all documents. (Lamplugh v. Norton, 22 Q. B. D. 452.) When a doubt arises upon the construction of the words of an Act of Parliament, it is the duty of the Court to remove the doubt by deciding it; and when the Court has given its decision, the point can no longer be considered doubtful. (Bell . Holtby, L. R. 15 Eq. 178.) Acts should be construed according to the intent of Parliament. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves, in such case, best declare the intention of the legislature. (Sussex Peerage, 11 Cl. and F. 86; 8 Jur. 793.) The Court knows nothing of the intention of an Act, except from the words in which it is expressed, applied to the facts existing at the time. (Logan . Courtown, 20 L J. Ch. 347; Digest of Eng. Ca. L., xiii., p. 1888.) Anyone who contends that a section of an Act of Parliament is not to be read literally, must be able to show one of two things, either that (1) there is some other section which cuts down its meaning, or else (2) that the section itself is repugnant to the general purview of the Act. (Nuth e. Tamplin, 8 Q.B.D. 253. Id. p. 1889.) “I prefer to adhere to the golden rule of construction that the words of a statute are to be read in their ordinary sense, unless the so construing them will lead to some incongruity or manifest absurdity." (Per Grove, J., Collins . Welch, 5 C.P.D. at p. 29. Id. p. 1889.) The more literal construction of a section of a statute ought not to prevail if

it is opposed to the intentions of the legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated." (Per Lord Selborne, L.C., Caledonian R. Co. v. North British R. Co., 6 App. Cas. 122; Id. p. 1889.) No Court is entitled to depart from the intention of the legislature as appearing from the words of the Act because it is thought unreasonable. But when two constructions are open, the Court may adopt the more reasonable of the two." (Per Lord Blackburn, Rothes . Kirkcaldy Waterworks Commissioners, 7 App. Cas. 702; Id. p. 1889.)

"If we can fairly construe an Act so as to carry out what must obviously have been the intention of the legislature, although the words may be a little difficult to deal with, and although they may possibly admit of more than one interpretation, we ought, from those general considerations, to adopt the interpretation which will make the law uniform, and will remedy the evil which prevailed in all the cases to which the law can be fairly applied." (Per Jessel, M.R., Freme v. Clement, 44 L.T 399, id. p. 1899) In order to construe an Act of Parliament, the court is entitled to consider the state of the law at the time it was enacted." (Per Lord Esher, M. R., Philipps v. Rees, 24 Q.B. D. 17, id. p. 1892.)

It is useless to enter into an inquiry with regard to the history of an enactment, and any supposed defect in former legislation on the subject which it was intended to cure, in cases where the words of an enactment are clear. It is only material to enter into such inquiry where the words of an enactment are ambiguous and capable of two meanings, in order to determine which of the two meanings was intended. (Per Lord Esher, M.R., Reg v. London [Bishop], 24 Q B.D. 213.) If the words are really and fairly doubtful, then, according to well-known legal principles and principles of common sense, historical investigation may be used for the purpose of clearing away the doubt which the phraseology of the statute creates. (Reg. v. Most, 7 Q.B. D. 251.) The court cannot impute to the legislature, in passing statutes confirming titles created by means of parliamentary powers, ignorance of the transactions which had taken place in exercise of such powers." (Beadon č. King, 22 L.J. Ch 111, Dig. of Eng. Ca. L. xiii. p. 1892.)

It is the most natural and genuine exposition of a statute to construe one part by another, for that best expresseth the meaning of the makers, and this exposition is ex visceribus actus. (Reg. v. Mallow Union, 12 Ir. C. L. R. 35.) The common law rights of the subject, in respect of the enjoyment of his property, are not to be trenched upon by a statute, unless such intention is shown by clear words or necessary implication. Statutes restrictive of the common law receive a restrictive construction. (Ash v. Abdy, 3 Swans. 664, Dig. of Eng. Ca. L. xiii. p. 1893.)

In construing Acts which infringe on the common law, the state of the law before the passing of the Act must be ascertained to determine how far it is necessary to alter that law, in order to carry out the object of the Act. (Swanton v. Goold, 9 Ir. C. L. R. 234.) A right to demand a poll is a common law incident of all popular elections, and as such cannot be taken away by mere implication which is not necessary for the reasonable construction of a statute. (Per Brett, L.J., Reg. v. Wimbledon Local Board, 8 Q.B.D. 459.) The general law of the country is not altered or controlled by partial legislation, made without any special reference to it. (Denton v. Manners, 27 L.J. Ch. 199; affirmed 27 L.J. Ch. 623, Dig of Eng Ca. L. xiii. p. 1893.)

As a rule, existing customs or rights are not to be taken away by mere general words in an Act. But, without words especially abrogating them, they may be abrogated by plain directions to do something which is wholly inconsistent with them. And this may be the case though the Act is a private Act, and though the particular custom may have been confirmed, years before, by a verdict in a court of law. (Green v. Reg., 1 App Cas. 513, id. p 1894.)

When there are ambiguous expressions in an Act passed one or two centuries ago, it may be legitimate to refer to the construction put upon these expressions throughout a long course of years, by the unanimous consent of all parties interested, as evidencing what must presumably have been the intention of the legislature at that remote period. But I feel bound to construe a recent statute according to its own terms, when these are brought into controversy, and not according to the views which interested parties may have hitherto taken." (Per Lord Watson, Clyde Navigation Trustees v. Laird, & App. Cas. 673, id. p. 1895.)

An interpretation clause is a modern innovation, and frequently does a great deal o harm. (Lindsay. Cundy, 1 Q. B.D. 348; Reg. v. Boiler Explosion Act Commissioners, (1891), 1 Q. B. 703; Dig Eng. Ca. L. Vol. xiii. p. 1886.)

arisen.

But for the interpretation clause, no difficulty as to the construction would have But I think an interpretation clause should be used for the purpose of interpreting words which are ambiguous or equivocal, and not so as to disturb the