Opinion Number. 153



Key Legislation


The Prime Minister

The Prime Minister:

A difference of opinion exists between the Consul-General for France and the Government of New South Wales with respect to the course to be followed in apprehending deserters from French ships.

The Consul-General cites the Anglo-French Convention of 23 June 1854, (Hertslet, Vol. 9, p. 962) by which it is agreed that if any seamen desert from a ship belonging to a subject of either Contracting Party within a port in the territories or possessions of the other Contracting Party, the local authorities 'shall be bound to give every assistance in their power for the apprehension and sending on board of such deserters, on application to that effect being made to them by the Consul of the country to which the ship of the deserter may belong, or by the deputy or representative of the Consul'. He contends that this Convention gives power to arrest on the mere application of the Consul, without any information or complaint being made on oath; that a treaty duly promulgated has the force of law, and is sufficient to confer legal powers of action on the agents of the authority; and that no statute of New South Wales can override the terms of the Treaty. He has informed the New South Wales Government that if the arrest of a deserter demanded by the French consular authority is refused, he will consider himself bound to notify the refusal to his Government as a breach of the Convention.

The State Crown Solicitor, on the other hand, contends that the Convention-whether it has the force of law or not-does not purport to confer a power of arrest; that the State Foreign Seamen Act 1898 (consolidating the Act of 1852, 16 Vic. No. 25) confers the power of arrest; and that unless a complaint on oath is made under that Act by the master, mate, or other person having charge of the ship, no steps can be taken to arrest a deserter. In a later opinion, he suggests that perhaps the State Act is inoperative in view of section 238 of the Merchant Shipping Act 1894, in which case the similar provisions of that section would have to be complied with before arrest.

The Consul-General has now referred the matter to the Prime Minister, citing the Colonial Office dispatches in the Vondel case(1) as his authority for so doing.

The Prime Minister asks to be advised which of the contentions above referred to is correct.

In my opinion the State Crown Solicitor is right in holding that the Convention, by itself, confers no power of arrest. Indeed, the Crown has no power, apart from statute, to give legal authority for the arrest of any person. In the British dominions, it is not the case, as stated by M. Biard d'Aunet, that 'an international convention regularly promulgated, has the force of law, and is sufficient to confer legal powers of action on the agents of the authority'. Such a convention has the force of a solemn compact, imposing an honourable obligation on the high contracting parties; but unless given effect to by legislation, it confers no legal powers of action, and if a person arrested in pursuance of the convention applied for a writ of habeas corpus, the convention by itself would afford no answer.

Both the Imperial Parliament and the Parliament of New South Wales have, however, passed laws enabling the executive authority to carry out the obligations of such a convention as this; and the view taken by the Imperial authorities of their obligations with respect to this Convention cannot be better shown than by an examination of Imperial legislation with respect to this subject.

On 3 July 1854 (a few days after the signing of the Convention above mentioned, and the day before the ratification of the Convention by the Emperor of the French) an Order in Council was passed, under the Foreign Deserters Act 1852, reciting that it had been made to appear to Her Majesty that due facilities would be given for recovering and apprehending seamen deserting from British merchant ships in French territory, and declaring-that seamen deserting from French merchant ships in the British Dominions should be liable to be apprehended and carried on board their ships (Hertslet.Vol. 10, p. 80).

The Foreign Deserters Act 1852 is now reproduced in section 238 of the Merchant Shipping Act 1894. It makes provision for Orders in Council applying the section in the case of any foreign country; and goes on to provide that, where the section applies in the case of any foreign country, and a seaman deserts when within any of Her Majesty's Dominions from a merchant ship of that country, any court, justice, or officer that would have had cognisance of the matter if the seaman had deserted from a British ship shall, on the application of a consular officer of the foreign country, aid in apprehending the deserter, and for that purpose may, on information given on oath, issue a warrant for his apprehension, and, on proof of his desertion, order him to be conveyed on board his ship or be delivered to the master, etc. to be so conveyed.

It is thus clear that, immediately after the signing of the Convention, which bound the British Government to 'give every assistance in its power' to apprehend deserters from French ships, and send them on board, that Government, acting under statutory authority, passed an Order in Council which required the proper courts and officers throughout the British Dominions, on the application of a French consular officer, to aid in the apprehension of such deserters. But, under the statute, a warrant for arrest can only issue on information given on oath; and the person arrested can only be delivered up to the master on proof of his desertion.

I am therefore of opinion that, unless the provisions either of the New South Wales Foreign Seamen Act 1898, or of section 238 of the Merchant Shipping Act 1894, are complied with, the New South Wales Government would have no legal justification for the arrest and delivery up of a deserter from a French ship.

Those statutes do not in any way 'vary' or 'modify' the Convention; they provide means for giving full effect to it, whilst they secure justice and safeguard the liberty of the individual by providing that no person shall be arrested except on a sworn information, or delivered up except after inquiry.

[Vol. 4, p. 20]

(1) See Opinion No. 107.