Opinion Number. 421

Subject

ABORIGINAL NATIVES WHETHER EMPLOYMENT IN FISHING IN AUSTRALIAN WATERS BEYOND TERRI

Key Legislation

EMIGRATION ACT 1910. ss. 3. 5 : THE ABORIGINALS' PROTECTION AND RESTRICTION OF THE SALE OF OPIUM ACTS 1897 TO 1901 (QLD) : THE QUEENSLAND PEARL SHELL AND BECHE-DE-MER FISHERIES (EXTRA-TERRITORIAL) ACT OF 1888 (FED. COUN. A/ASIA)

Date
Client
The Secretary, Department of External Affairs

The Secretary to the Department of External Affairs has forwarded the following letter from the Government Resident at Thursday Island for advice:

In reference to your letter of the sixteen March last authorising me to issue permits under the Emigration Act 1910, I have the honour to ask for a ruling as to whether aboriginal natives employed in the pearling industry and signed on articles are to be regarded as leaving the Commonwealth when employed only within the extra-territorial waters as defined by the Preamble and Schedule to The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act 0/i888 (Federal Council of Australasia). Practically the whole of the pearling boats worked from the Thursday Island base are employed within these extra-territorial waters only: and, under the Queensland Aboriginals Protection Acts(1), a written permit has to be obtained from the Protector of Aboriginals for every aboriginal native employed in such boats, and no native is allowed to leave the territorial waters mentioned above unless a bond is entered into by the employer for the return of the native to Queensland waters. I have therefore to ask if it is considered that the requirements of the Federal Act are fully complied with if permits are obtained from me only for such aboriginal natives as actually leave the extra-territorial waters as defined by the Federal Council of Australasia.

By section 3 of the Emigration Act 1910, the taking out of the Commonwealth, except in pursuance of a permit under the Act, of any aboriginal native is prohibited; and by section 5 of the Act a person shall be deemed to take an aboriginal native out of the Commonwealth if-

  1. he enters into any agreement or arrangement with the aboriginal native, or with a parent or guardian of the aboriginal native, for the native to go or be placed on board any vessel or boat for any purpose whatsoever; and
  2. the aboriginal native goes or is placed thereon and is taken therein to any place outside the territorial limits of the Commonwealth.

The waters defined by the Queensland Pearl Shell and Beche-de-mer Fisheries Act, although not wholly within the territorial limits of the Commonwealth, may I think be considered to be Australian waters, and Australian vessels engaged in fishing therein may, I think, be considered to be engaged in an Australian occupation.

The Emigration Act, was, in my opinion, intended to prevent persons taking aboriginals out of the jurisdiction and control of the Commonwealth, and the employment of aboriginals on Australian vessels engaged in fishing in Australian waters would not in my opinion amount to the taking of aboriginals outside such jurisdiction and control, notwithstanding that the vessels in pursuing their occupations incidentally went beyond the actual territorial limits.

Further, the aboriginals could not, in my opinion, be said to be taken to a place outside the territorial limits unless they were actually taken to some defined place, such as an island or port outside those limits.

In my opinion, therefore, the employment of aboriginals in fishing in the waters described in The Queensland Pearl Shell and Beche-de-mer Fisheries (Extra-territorial) Act of 1888 would not come within the Emigration Act 1910, and permits under that Act would not be necessary.

[Vol. 9, p. 54]

(1)The Aboriginals' Protection and Restriction of the Sale of Opium Acts 1897 to 1901 (Qld)