Gamble v Lau Sang [1943] HCA 16; (1943) 67 CLR 455 (30 July 1943)

HIGH COURT OF AUSTRALIA

Gamble Informant, Appellant; and Lau Sang Defendant, Respondent.

Gamble Informant, Appellant; and Luk Ling Defendant, Respondent.

H C of A

On appeal from a Court of Petty Sessions of New South Wales.

30 July 1943

Latham C.J., Rich and Starke JJ.

Kitto K.C. (with him Bales), for the appellant.

The following judgments were delivered:—

Latham C.J.

This is a case stated under the Justices Act 1902-1940 N.S.W. in proceedings for a breach of the Immigration Act. The two respondents were charged with a breach of s. 5 (6) of the Immigration Act 1901-1940. Section 5 (6) provides that "any person who is by virtue of this section deemed to be a prohibited immigrant offending against this Act shall be guilty of an offence." By sub-s. 2 of s. 5 it is provided that "any immigrant may at any time within five years after he has entered the Commonwealth be required to pass the dictation test, and shall if he fails to do so be deemed to be a prohibited immigrant offending against this Act."

The charge was that the respondents (separate charges being made against each but the charges being heard together) were each of them immigrants who within five years after he had entered the Commonwealth had been required to pass a dictation test and had failed to do so. The accused were acquitted. The information in each case contained an averment in the following terms—that the defendant was "an immigrant who has entered the Commonwealth within five years before failing to pass the said dictation test."

Some argument was heard upon the question as to how far the provisions of s. 5 (3) of the Act permit the making of such an averment and the giving of evidentiary effect to such an averment in the absence of evidence of the character set out in sub-s. 3A of s. 5 and as to whether this provision of the Act was constitutionally valid or, if valid, whether it was applicable in the present case. It is not necessary in my opinion to examine any of these questions, because certain facts were proved to the satisfaction of the magistrate. They are stated in the following terms:—"(a) That each of the two defendants failed to pass the dictation test within the meaning of the said Act within five years of his entry into the Commonwealth; (b) That, at the time of his entry into the Commonwealth, each defendant was a member of the crew of a vessel and had landed during the stay of the vessel in the Commonwealth; (c) That the vessel sailed without the defendants; (d) That the defendants remained in the Commonwealth and engaged in employment therein; (e) That neither of the defendants obtained permission to remain in the Commonwealth."

Thus it was established that these Chinese came to the Commonwealth upon a vessel and landed from that vessel, that the vessel sailed without them, that they remained in the Commonwealth and accepted employment in the Commonwealth without permission to remain in the Commonwealth. Upon these facts it was proved that they were immigrants. It was also proved by evidence of the officer who administered the dictation test that a dictation test of not less than fifty words in English was applied and that they failed to pass the test. Accordingly the offence as charged was established, unless the view of the magistrate that the defendants were entitled to acquittal by reason of certain provisions of s. 3 (k) was correct.

Section 3 of the Act does not itself directly create any offence; it provides that the immigration of the persons described in any of the following paragraphs (thereinafter called "prohibited immigrants") is prohibited. That is the substantial and, indeed, the only affirmative provision of s. 3, but from this provision there are certain exceptions, that is, certain persons are not prohibited immigrants within the meaning of s. 3. One exception is contained in par. k: "the master and crew of any other" (i.e. other than a public vessel of any Government) "vessel landing during the stay of the vessel in any port in the Commonwealth" subject to certain provisoes.

The magistrate took the view that the effect of s. 3 (k) was to make an exception of the persons therein specified from the category of prohibited immigrants for all the purposes of the Act.

The magistrate also took a particular view of the onus of proof as to the provisoes attached to par. k with which it is not necessary to deal.

In my opinion the provisions of s. 5 are unaffected by the provisions of s. 3. Section 3 provides that certain persons are called prohibited immigrants. Section 5 is a further positive substantive provision in these words:—"(6) Any person who is, by virtue of this section, deemed to be a prohibited immigrant offending against this Act shall be guilty of an offence."

In order to determine whether a person is guilty of an offence under that provision it is necessary only to consider whether he is a person who is by virtue of s. 5 deemed to be a prohibited immigrant offending against the Act. Reference to the earlier provisions of s. 5 shows that under sub-s. 2 an immigrant who within five years after he has entered the Commonwealth has been required to pass a dictation test and has failed is deemed to be a prohibited immigrant offending against the Act. The provisions of s. 3 do not modify in any respect, in my opinion, these provisions in s. 5 to which I have referred.

Accordingly, in my opinion the magistrate was wrong in holding that—to use his own words—"s. 5 refers back to s. 3 (j) and s. 3 (k) as to exemptions."

The question for determination by the Court is whether the determination of the magistrate was wrong in point of law. In my opinion the question should be answered in the affirmative and the case remitted to the magistrate.

Rich J.

I agree.

Starke J.

I agree.

Question answered in the affirmative. Case remitted to the magistrate.

Solicitor for the appellant, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitor for the respondents, Mackenzie Russell.