Orient Steam Navigation Co Ltd v Gleeson [1931] HCA 2; (1931) 44 CLR 254 (17 February 1931)

HIGH COURT OF AUSTRALIA

The Orient Steam Navigation Company Limited Defendant, Applicant; and Gleeson Informant, Respondent.

H C of A

On appeal from A Court of Petty Sessions of Victoria.

17 February 1931

Gavan Duffy, C.J., Starke, Dixon, Evatt and McTiernan JJ.

Fullagar, for the applicant, to move the order absolute.—

Sir Edward Mitchell K.C. (with him Herring), for the respondent.

Fullagar, in reply.

The following judgments were delivered:—

Gavan Duffy C.J.

I need say no more than that I think this appeal should be dismissed and the order nisi discharged.

Starke J.

I agree. Sec. 3 (k) is, I think, within the competence of Parliament. It deals with the coming of persons into Australia from a ship. The master and crew may land, but if a member of the crew is reported to have deserted or to have absented himself without leave, then he is deemed, until the contrary is proved, to be a prohibited immigrant and to have entered the Commonwealth contrary to the Act. That provision affects the burden of proof and is merely evidentiary, and is therefore within the power of the Commonwealth according to the decision of this Court in Williamson v. Ah On[1].

The provision in sec. 9 makes the persons in charge or control of ships responsible for the landing from those ships of prohibited persons who are on board. The Parliament places on those in control of ships the duty of preventing prohibited persons landing. Such a provision is within its powers.

More difficult questions arise on the evidence presented to the Court below—whether there was sufficient evidence that the men mentioned in the proceedings landed in the Commonwealth and whether the Orient Company was the agent of the vessel. On the whole, I think that the letters of the Orient Company itself afforded some evidence on this point, in the absence of any rebutting evidence on its behalf. I think the letters are sufficient prima facie proof of those facts.

The appeal should therefore be dismissed.

Dixon J.

I agree that the appeals should be dismissed and the orders nisi discharged. The prosecutions were brought under sec. 9 of the Immigration Act 1901-1925, and the defendant Company was charged as the agent for the vessel. The first ground taken for the defendant is that sec. 9 is void, because it exceeds the constitutional power of the Commonwealth Parliament to make laws with respect to immigration. It is said that it imposes penalties on four classes of persons, merely because they stand in some legal or business relation to the ship from which a prohibited immigrant enters the Commonwealth; that they are not penalized because of any act or omission on their part in respect of immigration, or because of any purpose they entertain, or of any knowledge they possess that an offence is to take place or has taken place. It is contended that such a law is not sufficiently connected with immigration to come within the power. It is true that the section requires no mens rea, and it is true that the master, owner, agent and charterer of the vessel are penalized whenever a prohibited immigrant enters from the vessel, and that no act or omission on their part is made the ground of the offence. The liability is incurred by them simply because of the relation in which they stand to the vessel, and, curiously enough, although the section creates an offence, the offenders are made jointly and severally liable for a single penalty. Some questions of construction may arise upon the section: for instance, whether "charterer" includes one who makes a mere contract of affreightment, or is confined to a charterer by way of demise; whether "agent" includes a person who acts only in provisioning a ship and obtaining freight or refers to the person whose duty it is to perform on behalf of the ship the legal obligations which attend entry into and departure from a port in the Commonwealth. Such questions may appear to affect the question whether the persons included within sec. 9 are too remote from the act of immigrating to come under the legislative power. But I do not consider it necessary to investigate more fully the description of those made liable. The section is not inseverable. It purports to impose an absolute liability upon four descriptions of persons connected with the ship, one of which is the agent, a term which must at least include representatives of the ship fulfilling on its behalf the requirements imposed by the law of the port. It is enough for the purposes of this case if there is evidence that the defendant answers this description, and if it is competent for the Legislature to impose upon such an agent an absolute liability. In my opinion the power of the Parliament to make laws with respect to immigration does enable it to impose upon the ship's agent who is authorized on its behalf to perform the duties imposed by laws in force in the port, an absolute liability to a penalty upon entry of an immigrant from the vessel. Such a provision is directed to promoting in those who control the ship, or who may affect its control, care to prevent entry of persons from the ship as immigrants; and is therefore a law with respect to immigration.

The next question is whether there is evidence sufficient in law to support the conclusion that the defendant Company is the ship's agent in the relevant sense. The only evidence consists, first, of a document written by the branch manager of the defendant which shows that it had an interest in the movements of the vessel, that it thought proper to give a guarantee in order to insure her clearance, and that it was prepared to accept service of process on behalf of the master, and, second, of a letter by the branch manager reporting the desertion of members of the crew and offering a reward. This evidence is, no doubt, very weak, but, in the absence of any countervailing circumstance, it appears to me to be sufficient to raise a prima facie case that the defendant Company undertook the performance of obligations arising from the vessel's presence in port. But even if the Company is the ship's agent, the further question necessarily arises whether there was evidence establishing that the persons alleged to be prohibited immigrants had entered the Commonwealth from the ship. The evidence consists of an admission by the defendant Company that they were members of the ship's crew on its arrival in Melbourne and were absent at the time of its departure. It follows from this admission that they had left the ship, and had either landed, boarded another ship, or lost their lives in the water. The first of these three possibilities is so much more probable than the others that a presumption of fact arises that they landed. There is, therefore, evidence warranting the conclusion that the two members of the crew in question entered the Commonwealth from the vessel within the meaning of sec. 9, and, within the meaning of par. (k) of sec. 3, "landed during the stay of the vessel in a port of the Commonwealth." It was argued that the third proviso to sec. 3 (k) could not operate unless and until it was shown that the members of the crew landed during the stay of the vessel. It is enough to say that, whether this be so or not, evidence was given raising a presumption of fact that members of the crew did so land. Evidence was given that the master had reported in writing to the Collector of Customs, who is an officer within the meaning of the third proviso of sec. 3 (k), that two members of the crew had deserted. If the proviso be valid, that is enough to bring it into operation and to put the burden of proof upon the defendant. In my opinion the proviso is valid. I think it may be supported as an exercise of the power to make laws with respect to immigration. It is unnecessary to consider whether it might also be supported under sec. 51 (XXXIX.) of the Constitution. I think upon its construction the section is confined to proof in legal proceedings of the character of "prohibited immigrant" and the fact of unlawful entry. Upon such matters, falling as they do within the subject over which the Commonwealth has power, the Parliament may place the burden of proof upon either party to proceedings in a Court of law. The onus of proof is a mere matter of procedure. If the Parliament may place the burden of proof upon the defendant, it may do so upon any contingency which it chooses to select. In this case it has changed the burden of proof contingently upon the master reporting in writing to an officer that a member of the crew has deserted or is absent without leave. The defendant complains that this contingency has little bearing upon the question whether the member of the crew is a prohibited immigrant. But this is of no importance because Parliament may change the burden of proof unconditionally or conditionally. The proviso appears to me to do no more. It may be that the consequence is hard upon the Company which must disprove both immigration and the existence of the conditions which make immigration prohibited, although the master's report may have little or no bearing upon these questions. But it would be no less harsh if the burden of proof upon a charge under sec. 9 were unconditionally placed upon the defendant.

These provisions being in my opinion valid, it remains to consider whether the third proviso to sec. 3 (k) applies to sec. 9. It is a proviso to the exception expressed by par. (k) which takes out of the category of "prohibited immigrant" the master and crew of any vessel landing during the stay of the vessel in a port of the Commonwealth. Because in form it is a proviso the defendant contends that it operates only in relation to this exception and therefore has no application save in prosecutions against a master or a member of a crew. The drafting of modern statutes is not so exact as to give cogency or plausibility to such an argument. The fact that an enactment takes the form of a proviso raises but a very weak presumption that it is confined to affecting the operation of the main provision. In this case I think it is reasonably clear that the proviso applies generally, and is not confined to prosecutions of a member of the crew. Whenever in any prosecution the issue is whether a member of the crew is a prohibited immigrant and has entered the Commonwealth, the proviso makes the written report of the master enough to turn the burden of proof upon the defendant.

I therefore think that, with the aid of the third proviso to sec. 3 (k), the offences charged were proved.

Evatt J.

I agree that the appeal should be dismissed. Mr. Fullagar's first contention—that the third proviso to sec. 3 (k) does not as a matter of construction apply to prosecutions under sec. 9—is determined adversely to him in Preston v. Donohoe[2].

In my opinion sec. 9 is a valid exercise of the power of the Commonwealth to make laws with respect to immigration. That section imposes upon persons in direct or indirect control of vessels in Commonwealth waters the duty of preventing the entry from the vessels into the Commonwealth of prohibited immigrants. Such imposition of vicarious responsibility is well known. Instances are to be found in the Navigation Act, and in various Immigration Acts before Federation.

The third and first provisoes to sec. 3 (k) are also in my opinion valid. They operate to make proof of certain matters prima facie evidence that a person is a prohibited immigrant. The criterion adopted seems both reasonable and relevant, but Williamson v. Ah On[3] seems to show that the relevance of the criterion does not matter. The principle of Williamson v. Ah On determines this part of the case. Difficult though it may be, a person charged under sec. 9 is at liberty to rebut prima facie proof by "contradictory and better evidence" (per Rich and Starke JJ.[4]). As to the facts I agree with my brother Starke.

McTiernan J.

I agree.

Order nisi discharged with costs.

Solicitors for the applicant, Green, Wynne, Riddell, Dobson & Middleton.

Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.

[1] [1926] HCA 46; (1926) 39 C.L.R. 95.

[2] [1906] HCA 43; (1906) 3 C.L.R. 1089.

[3] [1926] HCA 46; (1926) 39 C.L.R. 95.

[4] (1926) 39 C.L.R., at p. 128.