DESERTERS FROM FOREIGN SHIPS WHETHER ARE PROHIBITED IMMIGRANTS OR SHOULD BE DEALT WITH ACCORDING TO TREATY : WHETHER COMMONWEALTH BOUND BY UNDERTAKING BY NEW SOUTH WALES THAT TREATY APPLIES : WHETHER COMMONWEALTH ACT IN CONFLICT WITH TREATIES BETWEEN GREAT BRITAIN AND UNITED STATES OF AMERICA AND GREAT BRITAIN AND GERMANY
IMMIGRATION RESTRICTION ACT 1901, ss. 3, 9 : CHINESE RESTRICTION AND REGULATION ACT OF IS88 (N.S.W.), s. 13 : IMMIGRATION RESTRICTION ACT 1898 (N.S.W.)
In 1899 three coloured seamen deserted from the U.S. Ship Carrollton in the port of Newcastle, N.S.W.
Under section 8 of the New South Wales Immigration Restriction Act, the ship was refused a clearance and penalty of £300 was imposed on the master.
Section 2 of that Act exempts the officers and crew of a vessel landing during the stay of the vessel in any port of New South Wales; and contains no proviso like that in paragraph (k) of section 3 of the Commonwealth Act.
Protests were made by the U.S. Consul at Sydney, and the clearance was eventually granted and the fine remitted. The Attorney-General of New South Wales gave his opinion that the masters and owners of a vessel are not liable to any penalty under that Act if any of the crew, who is unable to pass the education test of the Act, effects a landing in New South Wales against their will or without their connivance.
The American Government was informed through the Secretary of State for the Colonies that deserters from foreign vessels were exempt from the provisions of the Act, and would be dealt with in accordance with such treaties with foreign powers as embody provisions for the reclamation of deserters from foreign merchant vessels.
Article 1 of the Treaty of 1 June 1892 between the United States and Great Britain, concerning the reclamation of deserters from merchant vessels, reads thus:
The Consuls-General, Consuls, Vice-Consuls and Consular Agents of either of the High Contracting Parties, residing in the dominions, possessions or colonies of the other, shall have power to require from the proper authorities the assistance provided by law for the apprehension, recovery and restoration of seamen who may desert from any ship belonging to a subject or citizen of their respective countries while in the ports of the other country. If, however, any such deserter shall have committed any crime or offence in the country where he is found, his surrender or restoration may be delayed until the proper Tribunal before which the case shall be pending, or may be cognizable, shall have pronounced its sentence, and the sentence shali have been carried into effect.
It is understood that the preceding stipulations shall not apply to the subjects or citizens of the country where the desertion shall take place.
The Prime Minister asks for advice-
- how far the Government of the Commonwealth is bound by the undertaking of the Government of New South Wales, referred to above;
- whether the Immigration Restriction Act 1901 is in violation of Article I of the Treaty referred to.
My opinion upon these questions is as follows:
- The undertaking relates only to the administration of the New South Wales Act, and has no application to the Commonwealth Act, which, if the procedure prescribed by section 3 (k) is carried out, deprives deserters from vessels in port of their exemption, and provides that until the contrary is proved they shall be deemed to be prohibited immigrants.
- The Commonwealth Act is not in violation of the Treaty. The Treaty requires the proper authorities in a British possession to assist Consuls, etc. of the United States to apprehend seamen who may desert from ships of the United States. The Commonwealth Act, section 3 (k) treats seamen who are not present at the muster when their ship leaves port as 'prohibited immigrants' until the contrary is proved; and further (section 9) imposes a penalty on the masters, owners, and charterers of any vessel from which a prohibited immigrant enters the Commonwealth; with a proviso that in the case of an immigrant of European race or descent the penalty shall not be imposed if the defendant proves that he had no knowledge of the immigrant being landed contrary to the Act, and took all reasonable precautions to prevent it.
The Treaty and the Act deal with entirely different matters. The one facilitates the recovery of deserters; the other is aimed against the entry of prohibited immigrants, whether deserters or not. There is no conflict between the two.
Under the Immigration Restriction Act 1901 the German S.S. Tanglin was refused a clearance from Newcastle, N.S.W. until a fine of £100 was paid by the master in respect of a Chinaman, one of the crew, who had deserted. The Acting Consul-General for Germany draws attention to the Treaty between Great Britain and Germany relative to merchant seamen deserting, dated 5 November 1879, whereby it is agreed that if a seaman deserts from a ship belonging to a subject of either of the high contracting parties in a port within the dominions of the other, the local authorities shall give assistance fox apprehending him and sending him on board, on application by the consul.
The Acting Consul-General contends that under this Treaty the master and the vessel could not have been liable unless it is the purpose of the Commonwealth authorities to regard deserters from German vessels as immigrants and asks whether this is the case. The Prime Minister sends the papers to me in connection with the case of the Carrollton.
It is not stated whether the provisions of section 3 (k) as to mustering the crew were carried out. If those provisions were carried out, the Chinaman must be deemed, until the contrary is proved, to be a prohibited immigrant. If not, he is excepted from the Act; but, if he landed except in the performance of his duties in connection with the vessel, the master is liable to the penalties and restrictions imposed by the New South Wales Chinese Restriction and Regulation Act of 1888 (section 13).
With regard to the Treaty, the same remarks apply as in the case of the Carrollton.
[Vol. 1, p. 363]