Opinion Number. 438

Subject

PROHIBITED IMMIGRANT WHETHER ABSCONDING BEFORE CLEARING COMMONWEALTH BY PERSON REQUIRED TO DEPART RENDERS MASTER OF VESSEL LIABLE

Key Legislation

IMMIGRATION RESTRICTION ACT 190I-I9I0,ss. 6. 9

Date
Client
The Secretary, Department of External Affairs

The Secretary to the Department of External Affairs has submitted the following memorandum to me for advice as to whether proceedings could be successfully instituted against the master of the St Albans under section 9 of the Immigration Restriction Act 1901-1910:

On the 27th June last a Chinese named A.B., a passenger per the S.S. Levuka from Fiji, was allowed to land at Sydney under section 6 of the Immigration Restriction Act for trans-shipment to a vessel bound for China.

The man was duly trans-shipped to the S.S. St Albans which left Sydney via other Australian ports for China on the Sth July.

On the arrival of the vessel at Darwin it was found that A.B. was not on board, but that another Chinese had been substituted for him. A.B. had evidently absconded from the steamer at one of the Queensland ports as he was seen on board the vessel when she left Sydney.

The sum of £ 100 lodged under section 6 of the Act was therefore forfeited and paid to revenue on the 29th August.

The question is submitted as to whether proceedings could be successfully instituted against the master of the St Albans for allowing this prohibited immigrant to land in the Commonwealth.

Section 9 of the Immigration Restriction Act is as follows:

The master, owners, agents, and charterers of any vessel from which any prohibited immigrant enters the Commonwealth contrary to this Act shall be guilty of an offence against this Act, and be jointly and severally liable on summary conviction to a penalty of One hundred pounds for each prohibited immigrant so entering the Commonwealth.

It is doubtful whether section 9 applies to the case. A.B. arrived at Sydney and there entered the Commonwealth subject to certain conditions. At Sydney he went on board the S.S. St Albans ostensibly to go to China. After the St Albans left Sydney she was proceeding from port to port in the Commonwealth until she got to Port Darwin where she left finally for a port outside the Commonwealth.

The question is, had A.B. left the Commonwealth before he escaped from the vessel, because if he had not it could not be said that he entered the Commonwealth at the time he escaped from the vessel, as at that time he was already in the Commonwealth.

It is probable and may be assumed that the vessel in the course of the voyage went beyond the territorial limits of the Commonwealth.

But a ship when going from port to port in the Commonwealth is to a certain extent considered to be within the jurisdiction of the Commonwealth. Thus duties of customs are levied on all dutiable stores consumed during the voyage. In other words, consumption of goods until the vessel finally departs is home consumption or consumption within the jurisdiction.

Possibly also the vessel is considered to be within Commonwealth jurisdiction for other purposes.

There is therefore no complete severance of the vessel and her passengers and crew from the Commonwealth until the time of her final departure.

I think that a prohibited immigrant having come within the Commonwealth should be considered as being still within the Commonwealth until he has become completely severed from its jurisdiction.

I am of opinion therefore that A.B. had not left the Commonwealth at the time he escaped from the St Albans and that section 9 does not apply to the case.

I am of opinion therefore, but not without some doubt, that proceedings could not be successfully instituted against the master of the St Albans under section 9.

[Vol. 9, p. 399]