Amess v Bremen [1959] HCA 68; (1959) 102 CLR 171 (17 December 1959)

HIGH COURT OF AUSTRALIA

AMESS v. BREMEN [1959] HCA 68; (1959) 102 CLR 171

Papua and New Guinea

High Court of Australia
McTiernan(1), Fullagar(1) and Taylor(1) JJ.

CATCHWORDS

Papua and New Guinea - Immigration - Prohibited immigrants - Entry into Territory - Exception in favour of master of vessel "landing during the stay of vessel" - Master subsequently remaining in Territory - Whether prohibited immigrant - Immigration Ordinance 1932-1940 (Papua and New Guinea), ss. 4 (1), (2) (e), 12.

HEARING

Sydney, 1959, December 7, 17. 17:12:1959
APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

DECISION

December 17.
THE COURT delivered the following written judgment:-
In May last the applicant was convicted by a stipendiary magistrate sitting offence against s. 12 of the Immigration Ordinance 1932-1940. The offence, as charged, was that at Buin, the applicant being a prohibited immigrant, entered the Territory in contravention of that section. After his conviction the applicant appealed to the Supreme Court of the Territory but his appeal was dismissed and he now seeks leave to appeal to this Court from the order of dismissal. (at p172)

2. Section 12 of the Ordinance, it should be observed, imposes a penalty upon any prohibited immigrant who enters or is found in the Territory in contravention or evasion of the Ordinance. By s. 4 the entry into the Territory of specified categories of persons - in the Ordinance thereafter referred to as "prohibited immigrants" - is prohibited and it was asserted by the Crown that the applicant's entry into the Territory was in breach of this prohibition. More particularly, it was said that he was a prohibited immigrant because he failed to prove, on demand by an officer, that he was the holder of "a permit to enter the Territory issued by or on behalf of the Administration," or, that he was the holder of an appropriate passport "properly endorsed for the Territory" (s. 4(1)(1)). On the other hand the applicant contends that the provision of s. 4(1) had no application to him because on the occasion when he entered the Territory at Buin he landed as the master of a vessel during its stay at that port. In terms s. 4(2) of the Ordinance provides: "Nothing in the last preceding sub-section shall apply to the entry into the Territory of the following persons:- . . . (e) The master and the members of the crew of any vessel, other than a public vessel of any Government, landing during the stay of the vessel in any port in the Territory." (at p173)

3. According to the evidence the applicant left Gizo, a port and an island in the British Solomon Islands Protectorate, on 3rd March 1959 as the master of the "Vega". This craft was a small motor vessel of which he was the owner. It had a net tonnage of 4.2. The vessel was cleared from Gizo and upon its arrival at Buin on the same day he reported there as the master of the vessel with his appropriate papers to the Customs and Health authorities. Apparently he was the holder of a New Zealand master's certificate for vessels up to five tons net and the "Vega" itself was licensed to carry passengers and freight. It should be mentioned that the applicant had applied during the previous year for permission to enter the Territory but his request had been refused. He says he believed that it was refused because at that time he was contemplating bringing with him a full crew of British Solomon Islands natives. Subsequently, this year, he arranged with a resident of Rabaul to make a further request for permission for him to enter the Territory with his vessel and one native servant. He seems to have been informed shortly before leaving Gizo that permission had been given but in fact this information was erroneous. (at p173)

4. Buin is situated at the southern end of the island of Bougainville which is one of the northernmost islands of the Solomons group but it is within the Territory of Papua and New Guinea (Papua and New Guinea Act 1949-1950 - Second Schedule). As already appears Gizo is also in the Solomons group. It is some distance to the south of Buin and it does not form part of the Territory. It was the appellant's intention in coming to the Territory to investigate the commercial possibilities of crocodile hunting on the coast of Bougainville and after calling at Buin this is what he proceeded to do. He left Buin in the "Vega" during the afternoon of the day of his arrival and sailed along the west coast of Bougainville. His next call was at Sohano on the west coast about one hundred and twenty miles in a northerly direction from Buin. But during the course of the voyage to Sohano there had apparently been crocodile hunting excursions on or adjacent to the shore. Shortly after his arrival at Sohano he was informed by a district officer that he was unlawfully in the Territory and after some discussion the suggestion was made to him that he should proceed to Rabaul in order to confer with the immigration authorities there. He acceded to this suggestion and proceeded to Rabaul where he made representations to the authorities in an attempt to obtain permission to remain in the Territory. Ultimately, however, his application was refused and he was requested to depart from the Territory within forty-eight hours. This he failed to do maintaining that he had a right to remain and shortly afterwards he was charged with the offence in respect of which he was subsequently convicted. (at p174)

5. Both before the stipendiary magistrate and in the Supreme Court it was contended by the Crown that the provisions of sub-s. 2(e) of s. 4 of the Ordinance had no application to the applicant. In the first place it was asserted - and again asserted in this Court though with no great degree of confidence - that the "Vega" was not a vessel within the meaning of the sub-section. But apart from some indication that importance was attached to the fact that the "Vega" was only a small craft and not a large ship no basis for this contention appeared. We can see no reason why the "Vega" should not be regarded as answering the description of vessel as used in the sub-section. And if this be a correct conclusion, there is, as the Crown conceded, no reason for doubting that the applicant was the master of the vessel when it arrived at Buin. (at p174)

6. But the more substantial point in the case is whether, assuming the applicant to have been the master of the vessel at that time, the provisions of sub-s. 2(e) constituted an answer to the charge. Both in the District Court and the Supreme Court it was thought that they did not, and the reasons of the Supreme Court indicate the broad basis of the argument advanced on behalf of the Crown. First of all it was said that when the applicant landed at Buin it was his intention to remain in the Territory for a period longer than the stay of his vessel at that port. Then it was contended that in those circumstances the exempting words of the sub-section had no application to him. The ultimate basis of this contention is, it seems to us, that the words "landing during the stay of the vessel". are equivalent to "whilst ashore during the stay of the vessel". But it is apparent that the provisions of sub-s. 2(e) were framed to deal with the entry into the Territory of the masters and crews of vessels and it has nothing to say concerning the duration of their stay once they have entered the Territory lawfully. Other provisions of the Act may make it unlawful for members of the crew of a vessel to remain in the Territory after their vessel has departed but s. 4(1), which is the provision which erects the relevant prohibition, is directed exclusively to entry into the Territory and not to events which occur thereafter. Likewise the first paragraph of sub-s. 2(e) which exempts the specified category from the prohibition erected by sub-s. (1), is concerned only with the landing, or entry, of persons in that category. That this is the true construction of this paragraph is made abundantly clear by the terms of the second and fourth provisos set out in the sub-section. The first of these provisos provides that the master of a vessel shall, upon being so required by an officer and before being permitted to clear out from or leave the port, muster his crew in the presence of an officer; and if it is found that any person, who according to the vessel's articles was one of the crew when it arrived at the port, and who would in the opinion of the officer be a prohibited immigrant "but for the provisions of this paragraph", is not present, then such provisions shall cease to apply, and until the contrary is proved such person shall be deemed to be a prohibited immigrant and to have entered the Territory contrary to the Ordinance. The fourth proviso provides that the provisions of par. (e) shall not apply to any member of the crew as to whom the master reports in writing to an officer that the member has deserted or is absent without leave and that, until the contrary is proved, the member shall be deemed to be a prohibited immigrant and to have entered the Territory contrary to the Ordinance. These provisos clearly acknowledge that, but for their provisions, a member of the crew of a ship who, during the stay of his vessel at a port in the Territory, lands with the intention of deserting his ship, and thereafter deserts, could not be taken to have entered the Territory unlawfully. No like provision is made with respect to masters of vessels, and it seems to us that, even if it can be said that the applicant is now unlawfully in the Territory, he did not, as charged, enter the Territory at Buin in breach of any provision of the Ordinance. That being so, leave should be given to the applicant to appeal to this Court, and, since the whole matter has been argued, the appeal should be allowed and the conviction quashed. (at p176)

ORDER

Appeal allowed. Order of the Supreme Court of the Territory of Papua and New Guinea set aside. In lieu thereof order that the appeal to that court be allowed with costs and the conviction of the appellant be quashed. Respondent to pay the costs of the appellant of the appeal.