CO885-(13-15) — Page 119

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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seen by reference to the Perl Shell Fishory Act of 1886 that a license could be obtained only by (section 3) depositing the ship's papers, and (section 8) paying Customs duties upon all goods, stores, and provisions on board, although the same were not intended to be landed, and that by section 3 the ship's papers could only be recovered by the master on paying any export duty payablo in respect of the shell on board, and that by section 9 the duty was fixed. at 41. per ton.

That Mr. Bramaton was also to invite our attention to the discussion in the Federal Council during the passage of the Bill now in question, which would be found at pagos 10, 23, 34, 41, and 54 of the accompanying newspaper account of the proceedings; and that with reference to Mr. Kingston's remarks on page 54 as to the advantages which would be given to foreign vessels over British vessels, the latter. alone being subject to the present Tegislation, Mr. Bramston was to acquaint us that strong protests against the Bill upon that very ground had been made to your Lordship by important bodies in England connected with the shipping interest.

That on the other hand there did not appear to have been any opposition to the measure in Australasia, and that in any case the point raised did not, it was apprehended, affect the legality, but only the policy, of that legislation.

That as bearing upon these protests Mr. Bramston was to request us to refer to section 1, section 15 (1.), and section 20 of the Act 48 & 49 Victoria, chapter 60, which provided that Acts of the Federal Council when assented to should have the force of law in all Her Majesty's possessions in Australasia in respect to which that Act was in operation. or in the several Colonies to which the Acts of Council extended, and on board all British ships, other than Her Majesty's ships of war, whose last port of clearance, or port of destination, was in any such possession or colony; and that he was to add that the Act was not in operation in the Colony of New South Wales (which had not joined the Foderal Council as provided in section 20 of the Act), nor in the Colony of the Straits Settlements, which was not within the purview of the Act, but from which vessels were understood to come for the purpose of taking part in the pearl fishing off the coast of Western Australia.

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That it would be observed that the definition of "The Pearl Fisheries Acts" clause 3 included certain specified Acts, and “also any Acts amending the same," and that a discussion took place (pages 41-44 of Debates) as to the propriety of inserting those words.

That in the Act relating to Queensland, which, as before stated, had been assented to by Her Majesty, similar words appeared, see section 4 in reference to ships duly licensed as required by two specified Acts "or any other Act in amendment of, or substitution for, those Acts.'

That Mr. Bramston was accordingly to invite us to take those papers into con- sideration, and to favour your Lordship with our opinion—

(1.) Whether the seas mentioned in the schedule to the Bill were Australasian waters within the meaning of section 15 (c.) of the Act 48 & 49 Victoria, chapter 60, and, if not, what portion of those seas might properly be considered to be Australasian waters adjacent to Western Australia within section 3 of the Bill.

(2.) Whether the application of the Pearl Fishery Act of 1886 to, and consequent imposition of Customs and export duties upon, vessels fishing only beyond the terri- torial jurisdiction, was within the powers of legislation conferred by section 15 (c.) of the Imperial Act.

(3.) Whether, having regard to the terms of the sections referred to in paragraph 10 of Mr. Bramston's letter to us, the provisions of the Bill in question would have the force of law in respect of vessels whose last port of clearance was, for example, in New South Wales, or in the Straits Settlements, and whose port of destination was not in any possession or colony in which the Act was in operation or to which it extended.

(4.) Whether, having regard to the fact that under section 15 of the Imperial Act a Bill of the nature of the one now under consideration was required to be reserved for the signification of Her Majesty's pleasure, it was competent to the Federal Council to include in their legislation words relating to the future Acts of Western Australia which would not be so reserved; and whether, in any case, any doubt on the subject would not be removed by the Queen's assent being given to the Bill in question.

That Mr. Bramston was also to ask us to be good enough to favour your Lordship with any observations which might occur to us generally upon the subject.

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We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to-

Report

1. That we are of opinion, that for the purposes of sub-section (c.) of section 15 of

48 & 49 Victoria, chapter 60, the waters in question are Australasian waters.

2 and 3. In our opinion the application of the Pearl Fishery Act of 1886, and consequent imposition of Customs and export duties upon British vessels fishing only beyonil the territorial jurisdiction, is within the powers of legislation conferred by section 15 (c.) of the Imperial Act.

It might be contended that, notwithstanding the provisions of section 20 of the Federal Council Act (48 & 49 Victoria, chapter 60), the words of section 2 of the Bill in question, if assented to by Her Majesty, are wide enough to bring within its operation all British ships engaged in fishing in Australasian waters from whatever ports they may have come, or to which they may be destined.

If it is not considered desirable to subject such vessels to the provisions of the Bill. we think it would be well to limit section 2 by making it apply to British ships whose last port of clearance was, or whose port of destination is, in a possession or colony to which the Federal Council Act applies.

4. We think the introduction of the words in section 3 "and also amending any of the same" may create a difficulty.

any Acts incorporating the provisions of future Acts of the Legislative Council of the Colony They might be construed as of Western Australia, although such Acts have not been reserved as contemplated by the last clause of section 15 of the Act 48 & 49 Victoria, chapter 60, and in our opinion any amending Acts referring to extra-territorial waters passed subsequent to the Act of the Federal Council now under consideration must be passed by the Federal Council under 48 & 49 Victoria, chapter 60. The assent of Her Majesty to this Bill, No. 1 of 1889, would not remove the difficulty: unless, however, any amending Acts are passed by the Legislature of Western Australia, subsequent to the Act of the Federal Council No. 1 of 1889, no question can arise.

We have, &c.,

The Right Hon. Lord Knutsford, G.C.M.G.,

&c. &c.

&c.

(Signed)

RICHARD E. WEBSTER. EDWARD CLARKE.

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