Opinion No. 395
WHETHER MEMBER OF SHIPS CREW ENTERING AUSTRALIA UNDER COMPULSION OF PROSECUTION AND IMPRISONMENT IS IMMIGRANT : EXTENT OF POWER TO COMPEL MASTER, OWNER, AGENT. CHARTERER TO PROVIDE PASSAGE FROM COMMONWEALTH
CUSTOMS ACT 1901-1910. ss. 233. 233B : IMMIGRATION RESTRICTION ACT 1901-1910, s.8
09 January 1911
The Comptroller-General of Customs
The Comptroller-General of Customs forwards the following memorandum for advice:
Question has arisen as to our power of deportation of Chinese and members of crews who may be prosecuted under above section(2) and imprisoned. I am in doubt whether we may call upon the master, owners, agents or charterers of a vessel to provide passages without cost to the Commonwealth in the event of our detaining the men for offences other than of evasion of the Immigration Restriction Act as of offences specially provided for in that Act and would be glad of your advice.
In my opinion, a member of the crew of a vessel does not become an 'immigrant' by being compelled by prosecution and imprisonment to enter and remain in the
Commonwealth; and the Immigration Restriction Act 1901-1910 has no application to him, and he cannot be deported under that Act, either during the term of his imprisonment or (except perhaps where the offence is a crime of violence against the person-section 8) after its expiration.
Nor is there any power under the existing statute law of the Commonwealth to compel the master, owners, agents, or charterers of the vessel to provide passages from the Commonwealth.
It is optional with the Department to proceed under section 23 3B (for imprisonment) or section 233 (for a fine).
[Vol. 8, p. 203]
(1) The year of this opinion in the Opinion Book is 1910, but its position in the Book and file number indicate the correct year to be 1911.
(2) Section 233b of the Customs Act 1901-1910.
* See also Opinion No. 413.