Opinion Number. 83



Key Legislation

CONSTITUTION, covering cl. 5 : PUNISHMENT OF OFFENCES ACT 1901, s. 3 : IMMIGRATION RESTRICTION ACT 1901, ss. 7, 9, 10, 18 : JUSTICES ACT 1896 (VIC), s. 2

The Ministerfor External Affairs

In connection with proposed proceedings against the master of the P & O steamship Australian under section 9 of the Immigration Restriction Act, the Crown Solicitor of Victoria has given an opinion dated 22 July 1902 to the effect-

  1. that penalties under section 9 cannot be recovered in a State court of summary jurisdiction;
  2. that it is doubtful whether the Federal Attorney-General can sue for the penalty in an ordinary civil action in the State Supreme Court, or file a presentment;
  3. that an ex officio information by the Federal Attorney-General is possible and is perhaps the only proper procedure;
  4. that in the absence of the defendant an information cannot be dealt with by Justices except on proof of actual service, and a presentment cannot be proceeded with; but that in an ex officio information the absence of the defendant would not be material if he were represented by an attorney;
  5. that to prove an offence under the clause in the case of a member of the ship's crew, it is necessary to put in the ship's articles.

He accordingly does not advise a prosecution in these cases.

The Minister for External Affairs asks to be advised on the matter, and points out that prosecutions under section 9 have been, so far successfully, carried on in courts of summary jurisdiction.

1), (2) and (3) I do not share the Crown Solicitor's doubts as to the power of the Federal Attorney-General to sue for the penalty in the civil courts of a State. The penalty is imposed by a law of the Commonwealth, which is 'binding on the courts, judges, and people of every State' (Constitution Act, clause 5); and the Federal Attorney-General may appear for the King and sue for the penalty in any court of competent jurisdiction in the Commonwealth. I am of opinion that the penalty may be recovered by the Attorney-General in a civil suit in any State Supreme Court or County or District Court having jurisdiction in the matter.

Whether the penalty can be recovered by information in a court of summary jurisdiction is a more difficult question. In view of the facts-

  1. that the liability is joint and several;
  2. that no act or omission by the defendant is necessary to make him liable-though in certain cases he may evade liability by proving that there was no act or omission on his part;
  3. that there is no express statement in section 9 that the master etc. of a ship from which the prohibited immigrant lands is deemed to be guilty of an offence, or a contravention of the Act-though section 10 refers to the penalty 'which may be adjudged . . . to be paid for the offence or default';
    it may be argued that the liability is a purely civil one, and that the master etc. is made an insurer against a prohibited immigrant landing from his ship, but is not guilty of an offence because of such landing.

But on the whole, in view of the words above quoted from section 10, I am of opinion that the master etc. is deemed to be guilty of an offence against the Act, and may be prosecuted criminally.

The question then arises whether he may be summarily convicted. I do not think that the Victorian Justices Act 1896 (No. 1458), section 2, can be applied to offences under Federal Acts. Nor do I think that the Commonwealth Punishment of Offences Act 1901, section 3, confers summary jurisdiction except where an intention appears aliunde to make the offence punishable summarily.

This brings us to the question whether such an intention can be gathered from the Immigration Restriction Act itself. A very slight indication of such an intention has been held sufficient in England; see Cullen v. Trimble L.R. 7 Q.B. 416; Johnson v. Colam L.R. 10 Q.B. 544. But looking at the express mention of summary jurisdiction in sections 7 and 18 of the Immigration Restriction Act, and the absence of any such words in section 9,1 am unable to see any indication of such an intention here.

(4) I agree with Mr Guinness that an information before Justices cannot be proceeded with unless service on the defendant is proved.

(5) It is necessary, in order to prove the offence where the prohibited immigrant is a member of the ship's crew, to prove that he was on the articles on the ship's arrival in port. But the articles need not necessarily be produced for this purpose. Notice to produce them may be given to the defendant; and if they are not produced secondary evidence may be given.

[Vol. 2 p. 115]