The Prime Minister:

On 4 February 1903 a deputation consisting of several members of the Federal Parliament and a member of the Legislative Council of South Australia waited upon the Prime Minister and submitted the following case:

The ship A.J. Hocken has on board a crew engaged in England. These men are paid English rates of wages only, which are lower than the rates ruling in the Commonwealth.

The vessel came to an Australian port with a British cargo, after the discharge of which she entered into an engagement to carry cargo between various ports of the Commonwealth for a period of 12 months.

The deputation contends that a breach of the Immigration Restriction Act has been committed. In their view the crew of this ship are persons under contract or agreement to perform manual labour within the Commonwealth, and they have not been exempted by the Minister for special skill required in Australia, and are not persons under contract or agreement to serve as part of the crew of a vessel engaged in the coasting trade in Australian waters on which vessel the rates of wages specified in their contract are not lower than those ruling in the Commonwealth.

The deputation further contends that this case is not covered by paragraph (k) of section 3 as that refers only to the crew of a vessel landing during the stay of a vessel at a Commonwealth port, whereas paragraph (g) was intended to cover cases of vessels trading on the Australian coast.

It was asserted by the deputation that it was the intention of Parliament to protect the shipping trade of Australia, and that if such cases as that of the A J. Hocken become common the shipping trade of the Commonwealth will receive serious injury.

The Prime Minister asks to be advised whether the crew of the A.J. Hocken are prohibited immigrants under paragraph (g) of section 3 of the Immigration Restriction Act 1901.

There can be no doubt that if, and as long as, any persons are 'excepted' under any of the paragraphs (h) to (n) of section 3, they cannot be prohibited immigrants under any of the paragraphs (a) to (g).

Paragraph (g) prohibits the immigration of 'persons under a contract or agreement to perform manual labour within the Commonwealth'. It contains a proviso that the paragraph shall not apply to (inter alios)-

persons under contract or agreement to serve as part of the crew of a vessel engaged in the coasting trade in Australian waters if the rates of wages specified therein are not lower than the rates ruling in the Commonwealth.

Then follows the enumeration of the persons 'excepted' amongst whom are:

1. the master and crew of any public vessel of any Government;
2. the master and crew of any other vessel landing during the stay of the vessel in any port of the Commonwealth (with a proviso that the exception shall not apply to persons missing at the statutory muster).

The matter submitted raises three questions of interpretation:

1. Whether, when a foreign-trade ship temporarily engages in the Australian coasting trade, the entry of her crew into Commonwealth waters, or their landing during the stay of the vessel in a Commonwealth port, constitutes 'immigration into the Commonwealth' within the meaning of section 3.
2. Whether the crew of such a vessel are 'under a contract or agreement to perform manual labour within the Commonwealth'.
3. Whether the crew of such a vessel are within the exception of paragraph (k).

In my opinion, the answers to these questions are as follows:

1. The entry of the crew into Commonwealth waters, and their landing and being on shore during the stay of the vessel in port, does not necessarily constitute immigration; though I am not prepared to say generally that it might not under certain circumstances amount to immigration.
2. Whether the crew are 'under a-contract or agreement to perform manual labour within the Commonwealth' must depend on the construction of the articles in each case. But I do not think that articles for a voyage commencing and terminating in a port outside the Commonwealth would be such an agreement.
3. Paragraph (k) applies to every vessel other than a public vessel of any Government, and cannot be construed to exclude vessels arriving from abroad and engaging in the coasting trade. It is probable that in enacting paragraph (k) the Parliament was chiefly contemplating foreign-trade vessels, seeing that 'immigration' is the subject of the Act. And it may have been intended that the coasting trade should be completely covered by the proviso to paragraph (g). But no express provision was made for the case of oversea vessels engaging in the coasting trade; and therefore so long as the crew of such a vessel remain members of the crew of that vessel and are only ashore during its stay in a port of the Commonwealth, they are excepted by paragraph (k). While that is the case, they cannot be prohibited immigrants under paragraph (g).

[Vol. 3, p. 152]