Opinion Number. 412

Subject

IMMIGRATION
WHETHER ALIENS PERFORMING DUTIES EXCLUSIVELY AS SLAUGHTERMEN ON FOREIGN TRADE SHIP WHILE IN AUSTRALIAN PORT ARE IMMIGRANTS : WHETHER SUCH PERSONS ARE PART OF SHIPS CREW

Key Legislation

IMMIGRATION RESTRICTION ACT 1901-1910. s. 3 . MERCHANT SHIPPING ACTS 1894 TO 1907 (IMP.)

Date
Client
The Minister for External Affairs

On 14 February, the Premier of Western Australia telegraphed to the Prime Minister as follows:
In view of prohibition importation livestock into Manila local firm of livestock dealers propose sending a steamer Wyndham every two months slaughtering and freezing two thousand head of cattle on board each trip stop sixty coloured slaughtermen will be required stop presume your government has no objection stop matter is one of urgent importance to cattle breeders northern portion our State stop early and definite reply will be appreciated in view of great expense involved.
On 20 February, in reply to a question by the Prime Minister, the Premier telegraphed further as follows:
Your wire eighteenth re prohibition importation livestock into Manila it is proposed slaughter on board in port stop sixty slaughtermen will accompany the vessel they will be part of crew and will only remain in port whilst cattle are being killed stop purpose is to freeze as Manila authorities will not allow livestock be landed at present stop please reply urgent as one of principals is at Manila awaiting word from me.
The papers are forwarded for my advice with the following minute by the Secretary, Department of External Affairs:
Attention is by direction invited to the proposal herein. It appears to the Minister that there is an intention to evade the provisions of the Immigration Restriction Act by making the slaughtermen members of the crew. It is clear that 60 slaughtermen cannot be bona fide members of the crew and entitled to exemption under para, k, section 3. The Minister desires the Attorney-General's advice.
The Immigration Restriction Act contains no definition of 'Crew'.
For the purpose of the Merchant Shipping Acts, where also the word is not defined, it is understood to include all the ship's company except the master-i.e. all persons in the employ of the ship and serving in any capacity on board. The nature of the employment, of course, varies with the business of the ship. Thus in whaling ships or fishing vessels, it would include men whose duties related to the catch, though they might have nothing to do with the navigation of the ship. If these slaughtermen are in the employ of the ship, and are on the articles, I think there is little doubt that they would be held to be members of the crew within the meaning of the Merchant Shipping Act.
Whether they would be members of the crew within the meaning of the Immigration Restriction Act is a more difficult question. One peculiarity of their case is that their duties would apparently be limited to the time when the vessel was in port in Australia, when they would be engaged in manual labour having no connection with the ship, and ordinarily performed on shore. Such a case was not contemplated when the Act was drawn, and I am inclined to think that the prohibitions of the Act do not cover it.

Even if the men are not members of the crew, there is difficulty, under the wording of the Act, in regarding them as 'immigrants' within the meaning of the Act. The Act appears to regard persons who arrive in a ship at an Australian port as not having entered the Commonwealth until they land. It may well be that, if the ship in which they arrived practically ceased to be a ship, and became a floating factory, the Act would cover the case. This case hardly goes so far; the ship would temporarily become a floating abattoir, but she would not cease to be a ship.
If the scheme is put into practice, therefore, I think it doubtful whether the Immigration Restriction Act could be successfully relied on to prevent it. But I think the scheme against the spirit of the Act and the intention of the legislature, and for that reason I do not think it advisable to give the State Government any assurance on the point.

[Vol. 8, p. 388]