Opinion Number. 85



Key Legislation

ACT 1901, s. 122 : IMMIGRATION RESTRICTION ACT 1901, s. 10

The Minister for External Affairs

With reference to my opinion of 19 May last(1) in connection with the refusal of a clearance to the ship Henry Failing, the Collector of Customs at Sydney has written to the Secretary, Department of External Affairs, stating that this opinion reopens the question of refusing clearance to masters instead of detaining the ship under the express provisions of section 10 of the Immigration Restriction Act 1901. The refusal of a clearance being a much simpler method, and attaining the same result with far less trouble, he asks that the question should be considered. The Minister for External Affairs asks to be advised on the matter.

I do not recommend the present adoption of the practice of enforcing the Immigration Restriction Act by refusing clearance instead cf detaining the ship under section 10 of the Act.

Though I have expressed the opinion that in this case the claim against the Customs for refusal of clearance cannot be allowed, yet the general adoption of this course as an ordinary means of enforcing the Immigration Restriction Act might give rise to difficulties both legal and diplomatic.

Nor does it seem that the superior convenience of that course would be as considerable as is suggested. Wherever the facts would justify a Collector in refusing a clearance, they would justify him-assuming him to be an officer empowered in that behalf by the Minister under section 10-in authorizing an officer to detain the ship. The detention-when so authorized-might then be enforced by the refusal to grant a clearance until a bond had been given in accordance with section 10. But the refusal of clearance in such cases would only be in aid of the power of detention under section 10, and when an authority to detain had been given under that section. To this extent the withholding of clearance may often be a very valuable adjunct to section 10.

[Vol. 2, p. 123]

(1) Opinion No. 67.