IMMIGRATION WHETHER FOREIGN PEARLERS UNDERTAKING VOYAGES ORIGINATING AND TERMINATING IN COMMONWEALTH ARE SUBJECT TO IMMIGRATION LAWS
CONSTITUTION, covering cl. 5 : IMMIGRATION RESTRICTION ACT 1901, s. 3
The Prime Minister:
The Prime Minister asks to be advised on the following matter:
Certain Asiatics were admitted to the Commonwealth before any Restriction Acts came into force, and they then signed articles to serve as members of the crew of pearling vessels working on the Northern and N. Western Coasts of Australia.
The articles are generally for a period of 12 months and not for any particular voyage.
In the pursuit of the industry it is the practice of the pearling vessels to leave the port at which the men sign articles, spend some time on the ocean, frequently-in fact generally-more than three miles from the mainland or adjacent islands, then returning to the port of departure without having called at any other port.
On such return it has been the practice to pay off the men who have then been considered as free at any other port.
As a rule these men have wives and families who have remained in their country of origin. They have no fixed homes in Australia, and when out of employment merely reside in boarding houses kept by their own countrymen.
Advice is asked as to whether such men should be considered as 'domiciled' in the Commonwealth, and therefore exempt from the provisions of the Immigration Restriction Act 1901; or whether when they return to a port, and it is sought to discharge them, it would be proper to apply the education test prescribed by section 3 of the Act.
On the facts stated, it appears that the men are not domiciled in Australia.
I am of opinion, however, that pearlers returning in this way to their port of departure, in a vessel which has not touched at any place outside the Commonwealth, are not 'immigrants', and that their landing is not 'immigration' within the meaning of section 3 of the Immigration Restriction Act 1901.
The pearling vessels are coastwise ships; and under covering clause 5 of the Constitution Act (assuming them to be British ships) they are subject throughout the voyage to the jurisdiction of Commonwealth laws. The 'three-mile limit', with respect to such ships, is extended indefinitely, and the men on such a voyage do not, from a jurisdictional point of view, leave the Commonwealth at all. I therefore think that they cannot on their return be tested under the Immigration Restriction Act.
Different considerations might perhaps arise in the case of a foreign ship; but as to that it appears unnecessary to express any opinion at present.
[Vol. 4, p. 115]