Muller v Dalgety and Co Limited [1909] HCA 67

Muller v Dalgety and Co Limited [1909] HCA 67 - HCA 1909 case summary — Zoe

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is regarded from this point of view, it falls naturally into plac as part of the scheme of the Act. It is, perhaps, not a ver fortunate instance of the modern method of legislation reference, but in substance it provides that, if a ship comes ii port having on board a person who is not a member of the crey nor a passenger, the master shall be liable to a penalty unless he gives notice of the presence of such person. This construction gives full effect to see. 9D. og On the other hand, although the words of that section: " Any person on board a vessel at the time of her arrival from any pl. outside Australia at any port in Australia who is not (a) a bond Jide passenger on the vessel, or (b) a member of the crew of the vessel whose name is on the articles" are affirmative in form, the declaration that all persons who fall within the definition shall be deemed to be stowaways unless the master gives notice of their presence, suggests primd fucie that if he does give notice o the presence of a person falling within the definition, that person is not to be deemed a stowaway. LEmpressio wnius est exel alterius. If this view be accepted, the question arises, when the notice to be given and has it a retrospective effect? Con- sidering that the offence created by see. 94 is complete at # moment of the ship's coming into port, I feel a difficulty in coming to any conclusion other than that the notice must be as far as possible contemporaneous with coming into port, é.., that it must be given at the earliest possible moment, the possibility being determined, not with regard to the master's knowledge, which is_ immaterial, but with regard to the presence of an officer to whom notice can be given. It is, however, pointed out that no time is limited by sec. 9D for giving the notice, and it is contended that the master may give it at any time provided that he has prevented the person in question from landing, and I do not at present see any satisfac: tory answer to this argument as applied to cases falling within - sec. 9p. Then it is said that if the same construction is not applied to stowaways whose presence is unknown on arrival, the consequence will be that a master who knows of a person whois a stowaway within sec. 9p, and omits to give immediate notice of his presence on board, has a locus penitentic, while a master -

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bond fide passengers nor members of the erew. If the places | named are within the port of Fremantle, it is conceded that the conviction must stand, unless a defence can be founded on see. 9p, I may mention here that no proof was given as to any of themen - that he had passed the dictation test, or that an officer had given him permission to land without restriction. The stowaways must, therefore, be deemed to be prohibited immigrants, if they were brought into port : sec. 9A (2). First then as to the question of the port of Fremantle. The Immigration Restriction Act gives no interpretation of the term "port." The places in question are within the lines of the port - as defined by Proclamation under the Customs Act 1901, sec. 15 (b). The Police Magistrate thought this definition sufficient proof of the limits of the port for the purposes of the complaint, I do not think it is, though I think that his finding that the Paroo came into port on 28th February must stand, We were referred to several Western Australian Statutes, among them to the Port Regulation Act (14 Vict. No. 20), which fixes a radius of 15 miles from Arthur's Head as the limit of the port, and Gage Roads and Owen's Anchorage are within that radius. Again, they are within the limits of the area vested in the Fre- mantle Harbour Trust Commissioners by the Act of 1902, No. 17. But it is more worthy of remark that the Act 18 Vict. No. 15, relating to "Shipping and Pilotage within the Harbours of Western Australia," includes both the anchorages within the limits of this port, and its provisions in that respect have remained unaltered for over fifty years, and since the construction of the two moles at the mouth of the Swan River, though the - Act itself has been amended by 37 Vict. No. 14, and 47 Viet. No. 17. The five Acts last mentioned are all State Acts, and the Immigration Restriction Act is a Federal Statute. But if the latter Act contemplated any class of statutory definition of the limits of the ports of Australia, limits as to which it does not speak, I should think that it looked rather to those established by shipping Acts and the usage consequent thereon, than to those defined for fiscal purposes. I do not say that it looked to either. We have not to determine what are the precise limits of the port of Fremantle, but to decide whether or not these anchorages

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are within the port. The sense in which the Zmmigration Restriction Act speaks of a port is, I think, in the absence of definition by the Act itself, the sense of a shipping or commercial port. That is the natural, or ordinary, or business sense, whichever term one prefers to use. The Boarding Inspector of the Customs, Mr. Smith, who is also an officer under the Immi- gration Restriction Act, says that both Gage Roads and Owen's Anchorage are within the limits of the port. The Inspector of Quarantine, Mr. Chambers, says that from her arrival on 28th February until she left Fremantle the ship was within the limits of the port. For the defence My. King, the shipping manager of Dalgety & Co., said that those who speak of the port of Fremantle mean the waters enclosed by the two moles up to the railway bridge, including the wharves. This view seems to have been adopted by the learned Judge, who found that the two anchorages were not within the port, and rested his reversal of the conviction on that ground. In cross-examination Mr. King said this : - " The definition of ' port' I give is since the mole was opened seven years ago. I came to Fremantle about 21 years ago. The port of Fremantle was then an open roadstead, Gage Roads and Owen's Anchorage. We had ships in those days up to 2,000 tons, and large cargoes were discharged into lighters and wharfages were exacted, and the ships paid tonnage dues, &c." If Mr. King is right, the anchorages which were part of the port up to seven years ago have ceased since then to be so by reason of the construction of the works and wharves at the entrance of the river. I do not think a narrowing effect of this kind can be attributed to those operations, nor do I think that the extra facilities for shipping so provided have contracted the port. The evidence on this part of the case seems to me to be all one way, as Mr. King agrees with Mr. Smith and Mr. Chambers as to the inclusion of the anchorages up to seven years ago, and nothing that has happened since can have excluded them. It is not a light matter to disturb the finding as to facts of the Police Magistrate who alone heard the evidence, and I feel myself the more bound to give effect to his views by the con- sideration that there is really nothing to countervail the evidence in support of the complaint on this point, which evidence, prima

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stowaway on board who does not answer to the prescribed con- ditions. It casts on them the duty of discovering every such stowaway. If they wish to avoid the risk of penalty, they can do so by taking precautions at the oversea ports the ship leaves on her voyage to Australia. If such precautions as are taken are insufficient, and the ship comes into an Australian port with a stowaway on board, then, on failure of proof that he has passed the dictation test or has received an officer's permission to land, there is no escape from the penalty. The law is plain, and it is not for us to criticize it. It applies, however, only to persons who have actually stowed away, and to no others unless others are brought within it by virtue of sec. 9p. That section does not provide for any restriction or definition of the term "stowaway," but is superadded to sec. 94 for the purpose of enlarging the class. Accordingly it includes, of course only for the purposes of the Act, those who, apart from sec. 9D, are not or are not shown to be actual stowaways. This it does by saying that they "shall be deemed to be" stowaways unless the master notifies their presence and does not allow them to land. As Cave J. said in The Queen v. County Council of Norfolk (1): - * Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed tobe. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing." So here, the provision is not framed for and does not apply to actual stowaways, such as the six men in question are proved to be. As therefore they are not such persons as are dealt with by sec. 9p, the question of notice by the master to an officer does not arise and need not be con- sidered, for such a notice, whenever given, will not serve to exonerate any of the respondents from liability in the case of these six actual stowaways.

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harbour at the entrance to the Swan River. In see. 9a the word "port" is used in its general popular signification. Taken in that sense the word would include any waters adjoining Fre- mantle where ships are accustomed to lie while loading or unload- ing cargo, or waiting to go to the wharfs or docks at which cargo for that place is usually loaded or taken on board. Port limits for all purposes are sometimes defined by Statute. In such cases no difficulty can arise. But a Statute which defines the port limits for a special purpose does not thereby determine its limits for other purposes, and I agree with Mr. Justice Burnside that the proclamation issued under the Customs Act fixing the port boundaries for Customs purposes cannot be taken as necessarily laying down its limits for the purpose of the Immigration Restriction Acts. Having regard to the objects of those Acts and the vigilance required for their effective administra- tion, one would suppose it to be at least as necessary to vest in the Executive Government a power of exact defini- tion of port limits for purposes of immigration as for Cus- toms purposes. The Commonwealth legislature, however, has not thought fit to make any statutory provision in that respect. Under these circumstances the only way in which the limits of the port can be determined is by inquiring what is in fact the space of water which the shipping and trading com- munity and the port authorities concur in using and describing as the port of Fremantle. In such an inquiry the conformation of the land with regard to the sea at that part of the coast is of first importance. It is common knowledge that there is a well defined triangular space of water opposite Fremantle well sheltered on the East by the coast from Winding Sheet to Cape Perron, and more or less protected on the West and South by Rottnest Island, Garden Island and the shoals and sand-banks connecting them with each other and with the mainland at Cape Perron. Within that space is included Gage Roads, Karnac and Owen's Anchorage as well as the artificial harbour at the mouth of the Swan River. Every statutory description of the port of Fremantle to which the Court has been referred includes this space, and the evidence is conclusive that before the construction of the new harbour seven years ago it had been always recog-

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nized as the area of shelter within which all ships trading to Fremantle anchored while waiting for wharfage or working - cargo into or out of lighters. With reference to that period, Dalgety & Co.'s shipping manager, King, admits that the port of - Fremantle was then an open roadstead, and included Gage Roads and Owen's Anchorage. The statute law of Western Australia also affords strong evidence of the early recognition of this open roadstead as the port of Fremantle. In 1855 an Act was passed (18 Vict. No. 15) for consolidating and amending the laws for the regulation of shipping and of pilotage and other dues in the ports or harbours of Western Australia. Amongst the dues which it authorizes harbour masters to collect are charges for the removal of ships from Gage Roads into Owen's Anchorage or Cockburn Sound and from Cockburn Sound into Gage Roads or Owen's Anchorage. It authorizes also the collection of pilotage rates in respect of ships brought into Gage Roads or Owen's Anchorage. By virtue of that and later Acts amending its pro- visions these port dues and pilotage rates have ever since been paid by shipmasters and shipowners using these anchorages as being port dues and pilotage charges of the port of Fremantle. After the construction of the harbour at the mouth of the Swan River the Fremantle Harbour Trust Act 1902 was passed. It rests in a Commission, the control and management of what is therein described as the "Harbour of Fremantle." The waters so placed under the jurisdiction of the Commission are defined in a Schedule. They include Gage Roads, Owen's Anchorage and Karnae, as well as the new harbour, and cover substantially the triangular space of sheltered water to which I have referred, which has been known and used as the port of Fremantle for over fifty years. That was the enactment in force in 1908 for the regula- tion of shipping in the port of Fremantle. There is, in my opinion, good ground for contending that the harbour of Fre- mantle as so delimited by the Harbowr Trust Act must be taken as the port of Fremantle for all shipping purposes. But I do not wish to carry its effect so far, and I shall treat the enactment as evidence only of legislative recognition of what had always been known and used as the port of Fremantle. Putting all these facts together, I find it impossible to escape from the

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search of the ship by the master before leaving her last port of clearance for Australia. Sec. 9, however, applies only to actual stowaways, that is, to persons concealed in the ship when she enters port. If before that they have been discovered, they are, when the vessel enters, not stowaways but persons who are on board with the knowledge of the master, but who are neither passengers or members of the crew. But it is obviously essential for the proper administration of the Act that the immigration officer should be made aware of their presence on board, and that they should not be allowed to leave the ship until he has had an opportunity of inspecting them. A consideration of the pro- visions dealing with stowaways would seem to show that it was principally to meet that gap in the Act that sec. 9p was inserted. But it was necessary also to deal with the cases in which persons might be on board who never had been actual stowaways but who were nevertheless neither bond fide passengers nor mem- bers of the crew. The immigration officer's principal and most definite and reliable source of information as to the inmates of a ship are the passenger list and the ship's articles. Neither of these documents would give him information either as to the stowaways discovered before the ship's entry into port or as to persons I have last described. Sec. 9p refers to both those classes of persons, and to those only. It imposes on the master the obligation to notify their presence to the immigration officer and to prevent their leaving the ship until the latter has had an opportunity of satisfying himself that none of them are pro- hibited immigrants. The performance of these obligations by the master is secured by the form of the last paragraph of the section. The persons of the two classes mentioned are deemed to be, though they were not in fact, stowaways at the time of the ship's arrival in port. The master is therefore primd facie _ liable under sec. 9a for the ship entering port with them on board, but that liability ceases as soon as he has notified the immigration officer of their presence on board in accordance with section 9D, provided that in the meantime he prevents them from landing until that officer has had the opportunity of satisfying himself that they are not prohibited immigrants. Mr. Moss, in support of his contention, endeavoured to uphold the view that

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Judgment (88 paragraphs)