Opinion Number. 416



Key Legislation

CUSTOMS ACT 1901-1910, ss. 4. 33. 58, 128, 228. 229. 233 : IMMIGRATION RESTRICTION ACT 1901-1910. ss. 5. 7 : QUARANTINE ACT 1908. ss. 20. 29 : THE PEARL SHELL FISHERY ACT 1886 (W.A.j, s. 2

The Comptroller-General of Customs

It seems that His Majesty's ship Gayundah on 25 May found two schooners, the Harriet and the Fortuna, under command of Captain A., and flying the Dutch flag, at anchor inside the reef at Scott Reef, Western Australia, and seized them for illegal fishing within territorial limits, and having on board trepang and trocas pearl shell. He towed the schooners to Broome, and placed them in charge of the Sub-Collector there.

Captain A. is a European, and the crews are thirty coloured men.

The vessels had on board a quantity of rice, and a small quantity of ships' stores, but no other dutiable goods; also packed ready for market, a quantity of trepang, trocas fish and trocas pearl shell.

No notice of seizure was served on the Master. The Customs Officer on board has asked for advice as to procedure, and as to what sections of the Customs Act and the Fisheries Act should be quoted in notice of seizure.

The Comptroller-General of Customs forwards the papers for advice as to notice of seizure and the action which should be taken for the prosecution of offenders.

Scott Reef as appears from the Admiralty chart and sailing directions, is a reef partially enclosing a small island. The island is within the territorial limits defined in Letters Patent constituting the office of the Governor of Western Australia, and is therefore part of the State of Western Australia and part of the Commonwealth. It is not expressly stated that the schooners were anchored within three miles of the island itself, but even if they were not but were anywhere inside the reef, which according to the sailing directions contains a few dry rocks, and the extremities of which approach to within two or three miles of the island, I think that the schooners were in territorial water.

Customs Act 1901-1910:

I will first consider the position with regard to the Customs Act. I think that the Master has committed an offence against section 58, by suffering his ship to enter a place other than a port-his object evidently being not refuge from stress of weather, but the carrying on of operations in connection with fishing.

He must also have offended against section 128, by using ships' stores, contrary to the Act; also section 33.

And, in connection with the stores, I think he has been guilty of smuggling within the meaning of section 233, as defined by section 4.

The dutiable goods on the boats may therefore be seized as forfeited (section 229, paragraphs (a), (d) and (g)) and by reason of the offence of smuggling I think that the ships may also be forfeited (section 228 (1)).

The Pearl Shell Fishery Act 1886 (W.A.):

The facts telegraphed are meagre, but I assume that the ships were found actually engaged in pearl shell fishing within territorial limits, and that the Master on demand, failed to produce a licence under the Act. If so, he has committed an offence under section 2 of the Act for which he can be fined, and in default the ship forfeited. Quarantine Act 1908:

I am inclined to think that the Master has committed an offence under section 20 of this Act in entering a port other than a first port of entry; though there may be some doubt whether the shelter of the reef is a port within the meaning of the Act. If, as I should think is probable, it can be shown that any of the crew landed on the island, the Master would also be guilty of an offence under section 29.

Immigration Restriction Act 1901-1910:

I think that the members of the crew could probably be prosecuted under sections 5 and 7 of the Act.

I think therefore, that the notice of forfeiture of the ships and of the dutiable goods on board should be served on the Master.

There should be a separate notice of seizure for each ship, and for the dutiable goods on each ship.

The contravention mentioned in the notices of seizure of the ships should be that the ship was used in smuggling.

The contravention mentioned in the notice of seizure of goods should be that the goods were smuggled, that they were dutiable goods found on a ship being unlawfully in a place, namely, Scott Reef, and the territorial waters of the Commonwealth adjacent thereto; and that they were goods which, being subject to the control of the Customs, were moved, altered and interfered with without authority.

I think that prosecutions should also be instituted for the various offences mentioned.

[Vol. 8, p. 480]