421

A.—4.

19 June, 1911.] British and Foreign Shipping. [11th Day. Sir JOSEPH WARD : The Appeal Court of Zealand, upon that question to which you referred, have decided exactly the other way with all that law before them, and it was fully argued just on the lines you are giving. Mr. FISHER : Ours is a more recent Constitution. Sir JOSEPH WARD : But the question is the same. Dr. FINDLAY : Yes, the question is how far the Imperial Act overrides it. Mr. PEARCE : I will read this portion of the Memorandum* dealing with these limitations : "This legislative power has two limitations. The first is " sometimes expressed to be that Colonial laws—except where extra-territorial " operation is expressly given to them by the Imperial Parliament—only operate " within the territorial limits of the Colony. The limitation is, however, no- " where expressed in any Colonial Constitution. It appears to me that there " may be cases in which it is necessary for the peace, order, and good govern- " ment of a Colony that it should be able to pass a law to operate extra-terri- " torially; and that the grant by the Imperial Parliament of a plenary legis- " lative power for the purpose of such peace, order, and good government is " wide enough to sanction extra - territorial operation in such cases. While " admitting that the cases in which the necessity arises, and in which, there- " fore, the extra-territorial operation can be conceded, are probably rare, I " would prefer to state the first limitation in the words of the Constitutional " grant —namely, that the operation of the laws of a Colony is limited to the " purposes of the peace, order, and good government of the Colony." Dr. FINDLAY : We have the same words in our Constitution. Mr. PEARCE : " The second limitation is that a Colonial law which is " repugnant to an Imperial Act which by express words or necessary intend- " ment is applicable to the Colony—or repugnant to any [rule] or regulation " under any such Act, is, to the extent of such repugnancy, but not otherwise, " void " —this is under the Colonial Laws Validity Act. 'To create the invali- " dity, it is not enough that the Imperial Law and the Colonial law both deal " with the same matter, and deal with it differently; they must be actually " repugnant one to the other —inconsistent one with the other. The Colonial " law may go further than the Imperial law —may require compliance with " further or more stringent conditions—but it is not therefore necessarily re- " pugnant. Moreover, it is not enough that the Imperial Act is worded so " generally that it is capable of being construed to extend to the Colony, or that "it is not in express words limited to the United Kingdom. The application to "the Colony must be either by express words or by necessary intendment— i.e., "it must be incapable of being construed as not extending to the Colony. Sub- " ject to these two limitations the legislative powers of the Colony with respect "to Navigation and Shipping—as with respect to other subjects—is plenary." He then goes on to discuss the Memorandum (in the name of Mr. Cunliffe) that was put forward by the Board of Trade on various points. The Commonwealth Government take and stand by that view expressed in the words I have just read. Sir JOSEPH WARD : May I point out to Mr. Fisher and Mr. Pearce what the position is? The position, even if you legislate upon the assumption that you have the power to do what you say, is, that the Governor-General of Australia would be bound to hold that legislation over, after it had passed through both branches of your Parliament, to be referred to the Home Government in order to obtain the Royal Assent. Mr. FISHER : I regret Sir Joseph Ward should think it necessary to put that statement in the Conference report at this stage.

* See [Cd. 3023].