CHAP. VII] MERCHANT SHIPPING 
was introduced in 1904, referred to a Royal Commission in 
Australia, and which formed the subject of correspondence 
between the Imperial and Commonwealth Governments.* 
In the course of the discussion with the Commonwealth 
Government, it was argued by the Commonwealth Law 
Department, in a memorandum laid before the Australian 
Royal Commission, that the proposed legislation was not, as 
held by the Imperial Government, ultra vires the Common- 
wealth. The Law Department was of opinion, in the first 
place, that the power to legislate for peace, order, and good 
government was wide enough to sanction in the case of ships 
extra-territorial jurisdiction, but of more importance was 
the argument that the Commonwealth possessed power with 
respect to navigation and shipping independent of that con- 
ferred by the Act of 1894, and this view has been accepted by 
the Commonwealth Government, which laid it down that the 
power to legislate as to shipping rested on ss. 51 (1) and 98 
of the Constitution. It is clear that this contention is so far 
correct that the power to legislate does not rest on ss. 735, 
736 of the Merchant Shipping Act 1894; that Act affects 
the mode of exercising the power, and the legislative authority 
depends on the Constitution Act of the Legislature. The real 
question at issue is how far these sections affect legislation by 
the Dominions. Mr. Garran suggests that s. 736 is an enabling 
clause and not a restricting clause, and on this theory he has 
some difficulty in accounting for its provisions. He suggests 
that it gives an extra-territorial operation 3 to the law of the 
Colony, but he is not clear as to what the exact purpose of the 
section was, but he holds that it does not mean that legisla- 
tion as to coasting trade can only be valid if carried out in 
the form described in s. 736. that is. subject to the condition 
1191 
* Parl. Pap., Cd. 2483, 3023. 
* Ibid., Cd. 3023, pp. 61, 62. See Keith, Journ. Soc. Comp. Leg., ix. 212 
seq., and cf, Cd. 4355, pp. 19, 20. 
* Quick and (Garvan, op. cit., p. 361, did not take this view, and the 
Australian delegates at the Conference of 1900 also thought thats. 736 gave 
no extra-territorial authority, but they were arguing ex parte; cf. Keith, 
Journ. Soc. Comp. Leg., x. 123-5.