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[1931] HCA 2
respondent. Appeal dismissed; orders nisi discharged. The two convictions and fines imposed by the Court of Petty Sessions therefore remained undisturbed.
The High Court upheld the Company's convictions under the Immigration Act. It decided that Parliament could make a ship's agent responsible, without proof of fault, when a prohibited immigrant entered from the ship. It also upheld a statutory rule under which a master's written report that a crew member had deserted shifted the burden of proof in a prosecution about prohibited status and entry. The Company's own documents, together with the crew members' presence on arrival and absence at departure, were enough to support the relevant findings.
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2,209 words · generated 30/09/2026
The Orient Steam Navigation Company Ltd was prosecuted on two informations under s 9 of the Immigration Act 1901-1925. Each alleged that the Company was the agent of the vessel Istok and that a prohibited immigrant had entered the Commonwealth from that vessel at Melbourne. The two crew members named were Marko Bakocevic and Ivan Vodopja. The Company was convicted on both informations and fined £100, with costs, on each.
No linked legislation citations have been extracted yet.
The evidence described in the judgment included the Istok's crew list, which identified both men as crew members and as Yugoslav nationals. The master wrote to the Collector of Customs reporting that they had deserted. The Company's branch manager also wrote to Customs, reporting that the two men had left the vessel and had not returned, and were to be regarded as deserters. The manager's correspondence also referred to steps taken to provide descriptions and photographs to police.
A further set of documents concerned potential proceedings against the master. The Company undertook to pay £100 security on demand in relation to possible liability of the master, and to accept service of process on his behalf. The Company challenged the convictions, arguing, among other things, that s 9 exceeded the Commonwealth's constitutional power, that the third proviso to s 3(k) did not apply to a prosecution under s 9, that the proviso was invalid, and that the evidence did not establish agency or entry.
The High Court dismissed the appeal and discharged the orders nisi. The supplied judgment text does not include numbered paragraphs. Accordingly, paragraph references cannot be supplied reliably; the discussion below identifies the relevant provisions and judges instead.
The Court's reasoning addressed the constitutional validity of s 9, the validity and reach of the third proviso to s 3(k), and the sufficiency of the evidence.
Dixon J accepted that s 9 imposed liability without requiring proof of mens rea, a particular act or omission, or knowledge of the prohibited entry. He described the section as imposing liability on persons because of their relationship to the ship. But he did not need to determine the constitutional position of every category named in s 9. The case concerned the Company as an alleged agent. Dixon J held that the immigration power allowed Parliament to impose absolute liability on an agent authorised to perform, for the ship, duties imposed by the law of the port. In his view, such liability encouraged people who controlled, or could affect the control of, a ship to take care to prevent prohibited persons entering from it.
That reasoning is deliberately bounded. Dixon J did not decide whether every commercial representative of a vessel would qualify as an “agent” for s 9. He raised possible distinctions, including between an agent responsible for port-law obligations and someone engaged only in provisioning or obtaining freight, but said he did not need to investigate them further. The relevant question was whether there was evidence that the Company was an agent in the pertinent sense.
Dixon J found that the Company's own documents raised a prima facie case. The documents showed the Company's interest in the vessel's movements, its provision of security to facilitate the vessel's clearance, and its willingness to accept service for the master. A further letter from the branch manager supported the conclusion that the Company had undertaken obligations arising from the vessel's presence in port. Starke J likewise considered the Company's letters sufficient prima facie evidence of agency, in the absence of rebutting evidence.
The Court also addressed whether the two crew members entered the Commonwealth from the Istok. Dixon J reasoned from their presence on the ship when it arrived in Melbourne and their absence when it departed. He identified three possibilities: they had landed, boarded another vessel, or died in the water. He regarded landing as sufficiently more probable than the alternatives to support an inference of fact that they had landed. This was a conclusion about the evidence in this case, not a general rule that every crew member missing at departure has entered the Commonwealth.
The third proviso to s 3(k) was central. The statutory exception covered the master and crew of a vessel landing during its stay in a Commonwealth port, subject to conditions and provisos. The third proviso stated, in substance, that the exception would not apply to a crew member whom the master reported in writing to an officer as having deserted or being absent without leave; until the contrary was proved, that person was deemed a prohibited immigrant who had entered the Commonwealth contrary to the Act.
Dixon J rejected the Company's argument that the proviso operated only in a prosecution against the master or crew. He read it as applying whenever a prosecution put in issue whether a crew member was a prohibited immigrant and had entered unlawfully. Evatt J also rejected that construction argument, saying it was determined adversely to the Company in Preston v Donohoe (1906) 3 C.L.R. 1089.
On validity, Dixon J treated the allocation of the burden of proof as procedural. The Parliament could place the burden on either party in relation to matters within the Commonwealth's legislative power, and could do so on a selected condition. Here, the condition was the master's written report of desertion or absence without leave. Starke J considered the provision evidentiary and within power. Evatt J also regarded the provisos as valid, relying on Williamson v Ah On (1926) 39 C.L.R. 95.
The Court therefore treated the master's written reports as sufficient to engage the statutory burden shift. Together with the evidence supporting agency and entry, that enabled the Court to uphold the convictions.
The judgment does not provide a comprehensive account of the law before 1931. It records the Company's arguments and the authorities relied on during the hearing, and explains the Court's conclusions under the statutory text then before it. It is therefore safer to describe the decision's contribution within the issues actually decided rather than to state a broad before-and-after account of immigration law.
Before the decision, the Company argued that the Commonwealth immigration power could not support liability for a person merely because of a legal or business relationship with a vessel, where the statute required no relevant act, omission, purpose, or knowledge. It also argued that the desertion proviso was outside power and applied only in proceedings against the crew member or master. The Court rejected those arguments insofar as they concerned the Company's liability as an agent and the operation of the proviso in this prosecution.
The decision's stated position was that the immigration power could support a penalty imposed on a ship's agent authorised to perform port-law duties, even without proof of fault. It also treated the burden of proof concerning prohibited status and unlawful entry as a matter Parliament could allocate, including by reference to the master's written report. The judgment did not hold that any person commercially connected to a ship could be made liable. Dixon J expressly left questions about the scope of “agent” and “charterer” open.
The Court relied on Williamson v Ah On for the validity of the evidentiary criterion or burden-shifting rule. Evatt J referred to Preston v Donohoe on the construction point concerning application of the proviso in a s 9 prosecution. The supplied judgment does not set out those earlier decisions in full, so their wider propositions should not be inferred from this extract alone.
Dixon J stated that Parliament could impose “an absolute liability” on the ship's agent authorised to perform port-law duties. In plain English, the prosecution did not have to prove that the agent personally helped the crew member enter, intended the entry, or knew it would occur. The constitutional connection identified by Dixon J was the statutory incentive for those with a role in controlling the vessel to prevent prohibited entry.
Dixon J described the onus of proof as “a mere matter of procedure.” In plain English, he treated the burden allocation as a rule about how a court determines disputed facts, rather than a change to the constitutional subject matter of the law. His reasoning was that the underlying questions, prohibited status and unlawful entry, fell within the subject of immigration, and Parliament could prescribe who had to prove them.
On the reach of the proviso, Dixon J said it applied whenever a prosecution raised whether a crew member was a prohibited immigrant and had entered the Commonwealth. In plain English, the rule was not limited to a case where the master or crew member personally faced prosecution. The prosecution of the ship's agent could also rely on the proviso.
Finally, Dixon J said the possibility that the men had landed was “so much more probable” than the alternatives that an inference of landing arose. In plain English, the Court considered circumstantial evidence sufficient to support a finding; it did not require a witness who had directly seen either crew member come ashore. The conclusion depended on the particular evidence that they were crew members present at arrival and absent at departure.
The transcript provided has no numbered paragraphs. These passages are therefore attributed to the relevant judge, but no paragraph numbers can responsibly be given.
The decision is most directly relevant to the statutory situation it decided: a prosecution under s 9 of the Immigration Act 1901-1925 alleging that a prohibited immigrant entered from a vessel and that the defendant was its agent. Its reasoning on absolute liability concerns an agent who is authorised to perform on the ship's behalf duties imposed by laws in force in the port. The judgment does not establish that a person with any business connection to a vessel falls within that description.
The evidentiary reasoning is relevant where crew members are documented as present when a vessel arrives, absent when it departs, and the master has made the kind of written report specified by the statutory proviso. In this case, the Company's documents also supported the vessel-agent relationship and the crew members' departure from the ship. The Court treated the combination of evidence and statutory presumption as sufficient.
The precedent should not be extended beyond its setting without checking the applicable legislation and facts. The judgment interpreted the Immigration Act 1901-1925 and the language of its particular s 3(k) and s 9. It left unresolved the outer meaning of “agent” and “charterer”. It also did not decide how the statutory reasoning would apply where the alleged agent did not undertake port-law duties, where no written report was made, or where evidence about arrival and departure differed.
The supplied judgment does not identify any later court decisions or report subsequent treatment of Orient Steam Navigation Company Ltd v Gleeson. No conclusion about whether later courts followed, distinguished, limited, or questioned it can be drawn from the text provided.
Within this judgment itself, the Court referred to earlier authority. Evatt J said the construction point about whether the proviso applied in a s 9 prosecution had been determined adversely to the Company in Preston v Donohoe. Starke J and Evatt J also relied on Williamson v Ah On in addressing the validity of the statutory evidentiary rule. Dixon J referred to the principle that Parliament could allocate the burden of proof for matters within its power. These references show the authorities' role in this case, but are not evidence of later treatment of this judgment.
For professional research, later-treatment analysis would require sources beyond the supplied judgment. Without those sources, claims about the decision's subsequent status or influence would be speculative.
The judgment expressly left open questions about the reach of s 9. Dixon J noted possible uncertainty over whether “charterer” included a person under a mere contract of affreightment or was confined to a charterer by demise. He also identified uncertainty about whether “agent” included a person whose functions were limited to provisioning or obtaining freight, rather than performing legal port obligations on the ship's behalf. He did not decide either issue.
The decision also does not specify the limits of the burden-shifting power beyond the statutory context. Dixon J considered the particular questions of prohibited status and unlawful entry to fall within the immigration subject matter, and the master's written report to be a permissible condition for shifting the burden. The judgment does not explore every possible evidentiary presumption or legislative condition.
Nor does the extract establish a universal evidentiary rule for missing crew members. Dixon J relied on the comparative probability of landing against two alternatives in the circumstances described. Different evidence could support a different inference. The judgment's finding rested on the Company's admissions about the men's presence on arrival and absence at departure, together with the other documents.
The decision is a historical construction of the 1901-1925 Act. The text supplied does not establish the current statutory position or the effect of later constitutional or legislative developments. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
H.C. or A. Lmmigration - Powers of Commonwealth Parliament - Prohibited immigrant - d of ship - Prosecution - Evidence - Burden of proof - Immigration Act 19 1925 (No. 17 of 1901 - No. 7 of 1925), secs. 3 (k), 9 - The Constitution (63 64 Vict. c. 12), sec, 51 (xxvu.), (XXXIX.). :
A company was convicted and fined on two informations - each information alleging that the company was the agent of a certain vessel and that on 9 about the date specified a prohibited immigrant within the meaning of Immigration Act 1901-1925 entered the Commonwealth from the
*The Immigration Act 1901-1925, sec. 3, provides : - "'The immigration into the Commonwealth of the persons described in any of the following paragraphs of this section (hereinafter called 'prohibited immigrants') is prohibited, namely : - " (then follows a list of prohibited immigrants). The section then proceeds : - " But the fol- lowing are excepted : - (h) Any person possessed of a certificate of exemption as prescribed in force for the time being ; (i) members of the King's regular land or sea forces; (j) the master and crew of any public vessel of any Govern- ment; (k) the master and crew of any other vessel landing during the stay of the vessel in any port in the Common-
wealth: Provided that the mi shall upon being so required by officer, and before ba mitte clear out from or leave the port, the crew in the presence of an off and if it is found that any person, according to the vessel's articles: one of the crew when she arrived port, and who would in the opini the officer be a prohibited i but for the exception contained paragraph, is not present, then
person shall not be excepted paragraph, and until the proved shall be deemed to be hibited immigrant and to ha the Commonwealth contrary Act ; Provided also that ident
Held, (1) that the power of Parliament to make laws with respect to immigra- H. C. or A.
tion enables 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: and (2) on the
facts of this case, that there was evidence sufficient in Jaw to support the NayicaT1oN
conclusion that the company was the ship's agent in the relevant sense, and that the evidence established that the persons alleged to be prohibited immigrants had entered the Commonwealth from the ship, and warranted the conclusion that the two members of the crew in question entered the Commonwealth from the vessel within the meaning of sec. 3 (k) of the Immigration Act 1901- 1925 ; that the third proviso to sec, 3 (k) is valid, and that the offence charged was proved.
James Gleeson laid two informations against the Orient Steam Navigation Co. Ltd. under the provisions of the Immigration Act 1901-1925. One of the informations in substance alleged that the defendant Company on or about 12th April 1930 at Melbourne was the agent of a certain vessel, to wit, the 8.8. Zstok, and on or about the said date a prohibited immigrant within the meaning of the Immigration Act 1901-1925 of the Commonwealth of Australia, namely, Marko Bakocevic, entered the Commonwealth from the said vessel contrary to the said Act. The other information was in similar terms but related to another prohibited immigrant, Ivan Vodopja.
On 12th April 1930, the master of the Istok wrote to the Collector of Customs informing him that the above-named two persons had deserted from the steamer at the Port of Melbourne in the State of Victoria. The crew list of the Istok showed that the above-named two persons were members of the ship's crew and were of Yugoslav nationality. On 12th April the master also wrote to the defendant
cards bearing the full name, thumb- int, photograph, and _ prescribed ription of each member of the crew, and indorsed by the master, have been' produced to any officer on
Sec. 9 provides: "The master, owners, agents, and charterers of any vessel from which any prohibited
deman: Provided further that the exception contained in this paragraph shall not apply to any member of the erew as to whom the master reports in writing to an officer that the member has deserted or is absent without leave, and, until the contrary is proved, the member shall be deemed to be a pro- hibited immigrant and to have entered
immigrant enters the Commonwealth contrary to this Act shall be guilty of an offence against this Act, and be jointly and severally liable on sum mary conviction to a penalty of one hundred pounds for each prohibited immigrant so entering the Common- wealth."
Company requesting it to pay to the Collector of Customs £100, to b held by him for the payment of any penalty that the master mightb held liable to pay under sec. 9 of the Immigration Act in any ceedings instituted against him on the ground that Marko Bakoce (who was according to articles of the ship Istok one of the of the ship when it arrived at the Port of Melbourne in the said State, and who was alleged to be a prohibited immigrant) or about 12th April 1930 at Melbourne entered the Commonw contrary to the said Act from the said ship. The Company, in con sideration of the Commonwealth allowing the master to pro on his voyage, undertook to pay this order on demand to the Coll of Customs at the Port of Melbourne and to accept service of on behalf of the master of the vessel. On 8th April 1930 the branel manager of the Company wrote to the Collector of Customs, bourne, stating - " 8.8. Istok. I confirm my report to your de ment yesterday morning to the effect that the under-mention members of the crew of the above steamer had left the vessel had not returned, and must therefore be regarded as deserted at consequently prohibited immigrants . . . Following upon m report to you the Police Department were immediately furni with a full description of each, including photographs, and I have in addition written to the Commissioner of Police offering a rev of £5 in each case for information leading to the arrest of any ¢ these men." The men referred to included the above-named persons.
At the hearing of the informations in the Court of Petty S at Melbourne the above letters and documents were put in evi in addition to certain oral evidence, most of which was objected to The Company was convicted on both informations, and was fine £100 with 10s. 6d. costs on each.
The defendant obtained an order nisi to review these de which now came on for hearing before the High Court.
Fullagar, for the applicant, to move the order absolute - tTh information in each of the cases charged the defendant with b the agent for the ship in question. The information in both was precisely the same, but related to different immigrants.
case turned upon the effect of the documentary evidence, and the prosecution could not have succeeded if it were not for the legislation contained in the third proviso to par. (/) of sec. 3 of the Immigration Act 1901-1925. There is no evidence that any officer ever formed an opinion under the first proviso to sec. 3 (k). The case for the prosecution rested upon the letter of 12th April 1930 by the master informing the Collector of Customs that the two alleged prohibited immigrants had deserted, and upon the letter of 8th April 1930 by the branch manager of the defendant Company to the Collector of Customs confirming his report to the effect that the two above-named members of the crew had left the vessel and had not returned, and must therefore be regarded as having deserted and, consequently, as being prohibited immigrants ; and also upon the requests, each dated 12th April 1930, by the master of the vessel to the Company requesting it to pay to the Collector of Customs the sum of £100 to be held by him as the security for any penalty to which the master might be liable under sec. 9 of the Immigration Act 1901-1925 on the ground that the above-named persons entered the Commonwealth contrary to such Act, and authorizing the Company to accept service on his behalf of any process for the recovery of such penalty, and upon the undertakings signed by the branch manager of the Company to pay such orders on demand to the Collector of Customs and to accept service of process on behalf of the master of the vessel. Such request by the master and undertaking by the Company could not be evidence of anything against the Company. The Company was convicted in each case, and fined the prescribed penalty of £100. But, first, there was no evidence that the Company was the agent of the vessel, and the only evidence which could possibly be suggested on that head is that contained in the above letters and documents, and there is no evidence in them that the Company was the agent. Secondly, the third proviso to sec. 3 (/) does not apply to a prosecu- tion under sec. 9 of the Act: that is its true construction. Thirdly, the third proviso to sec. 3 (i) is unconstitutional and invalid. On the proper construction of the proviso its only operation is to create a presumption against the members of the crew themselves. In Preston v. Donohoe (1) it was held that the proviso did apply to a
pei ORtENT Sream NAVIGATION Co. Lr. v GLEESON.
prosecution under sec. 9, but the question of the third proviso was not there raised. That case was wrongly decided, and on its true construction the third proviso would not apply. The third proy to sec. 3 (k) is invalid: it is not covered by the power in the monwealth Parliament to legislate with regard to immigrati Parliament may make laws with respect to immigrants, but it cannot define what persons shall be deemed to be immigrants and so give itself power to declare who shall be deemed to be immigrants.
[Evarr J. referred to Williamson v. Ah On (1).] f That case is distinguishable (2), and was decided under sec. 5 (3 of the Act. All that is known is that the individual is on the vessel on one day and is not there on the next. This is an attempt t extend a matter of substantive law. There is no evidence in th case that either of the individuals in question landed in the Common wealth. If the person may or may not be an immigrant the Com monwealth power does not extend to enable Parliament to | concerning him. An arbitrary criterion should not be adopted to briny within the legislative power something which may not be within In Williamson v. Ah On there was distinct evidence that tl individual in question was an immigrant. In this case each man may or may not have been an immigrant. The language of se 3 (k) is totally different from that of sec. 5 (3), under which Ah On's Case was decided. There being no evidence in this case tha either man ever landed in the Commonwealth, the exception in sec. 3 (k) does not apply, and, therefore, the proviso in the section apply. Moreover, sec. 9 of the Act is not a valid exercise of the power to legislate with respect to immigration. It is a law m a person guilty of an offence who may have had nothing what to do with the immigration of anybody. There is no evidence at all that the Company was the agent of the vessel. The abot documents show no more than that the Company had in some
entirely undefined way some interest in what had happened to these members of the crew.
Sir Edward Mitchell K.C. (with him Herring), for the respondent. In considering the validity of sec. 9 it is of assistance to look also at
(1) (1926) 39 C.L.R. 95. (2) (1926) 39 C.L.R. (see pp. 108, 110).
sec. 10. Both sections should be read together. Secs. 9 and 10 are a valid exercise of the powers of the Commonwealth Parliament. Sec. 9 is a valid and reasonable exercise of the power over immigra- tion. O'Shea v. Commissioner of Taxes (Vict.) (1) deals with a situation analogous to that raised by the present case, and is based upon similar legislation. The evidence shows that the Company was the agent of the vessel in this very matter. Moreover, the two men in question failed to prove that they were the holders of pass- ports, and, therefore, came within the provisions of sec. 3 (gf). The requests by the master to the Company dated 12th April 1930, and the assents to such requests by the branch manager of the Company, each admit the fact alleged that the defendant was the agent of the vessel within sec. 9. The documentary evidence was supplemented by oral evidence, though the same was objected to. There was, in any event, ample evidence upon which the Magistrate could act.
Fullagar, in reply. Sec. 10 supports the view that sec. 3 (k) is invalid, the latter section dealing with a matter of substantive law. On the true construction of sec. 3 (k) it should be confined to making the statement of the master evidence against himself only. If that be the true interpretation of sec. 3 (k), Preston v. Donohoe {2) does not affect the defendant as in that case the master was prosecuted.
Gavan Durry C.J. I need say no more than that I think this appeal should be dismissed and the order nisi discharged.
Srarxe J. Lagree. 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 th Court in Williamson v. Ah On (1). F
The provision in sec. 9 makes the persons in charge or conty of ships responsible for the landing from those ships of prohibite persons who are on board. The Parliament places on thos i control of ships the duty of preventing prohibited persons landin, Such a provision is within its powers.
More difficult questions arise on the evidence presented to th Court below - whether there was sufficient evidence that the mentioned in the proceedings landed in the Commonwealth and whether the Orient Company was the agent of the vessel. On # whole, I think that the letters of the Orient Company itself afford some evidence on this point, in the absence of any rebutting ev iden on its behalf. I think the letters are sufficient prima facie pre of those facts. q The appeal should therefore be dismissed. 4
Dixon J. I agree that the appeals should be dismissed and th orders nisi discharged. The prosecutions were brought under s 9 of the Immigration Act 1901-1925, and the defendant Com was charged as the agent for the vessel. The first ground tak for the defendant is that sec. 9 is void, because it exceeds the stitutional power of the Commonwealth Parliament to make with respect to immigration. It is said that it imposes penalti on four classes of persons, merely because they stand in some lega business relation to the ship from which a prohibited immigran enters the Commonwealth; that they are not penalized becaus of any act or omission on their part in respect of immigratiol or because of any purpose they entertain, or of any knowledg they possess that an offence is to take place or has taken p It is contended that such a law is not sufficiently connected wit immigration to come within the power. It is true that the se requires no mens rea, and it is true that the master, owner, a and charterer of the vessel are penalized whenever a probil it ' immigrant enters from the vessel, and that no act or omission their part is made the ground of the offence. The liability isi
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 Common- wealth. 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 immi- grants ; 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
Ss ORrENtT Sream NAVIGATION Co, Lrn. ® GLEESON.
we ORtENT Srzam Navicarron Co. Lr. e GLEESON.
behalf of the master, and, second, of a letter by the branch man
to raise a prima facie case that the defendant Company under ' took the performance of obligations arising from the presence in port. But even if the Company is the ship's a the further question necessarily arises whether there was e establishing that the persons alleged to be prohibited imu had entered the Commonwealth from the ship. The evi consists of an admission by the defendant Company that they members of the ship's crew on its arrival in Melbourne and absent at the time of its departure. It follows from this admi that they had left the ship, and had either landed, boarded anoth ship, or lost their lives in the water. The first of these three p bilities is so much more probable than the others that a pres of fact arises that they landed. There is, therefore, eviden warranting the conclusion that the two members of the crew i question entered the Commonwealth from the vessel within tl meaning of sec. 9, and, within the meaning of par. (k) of sec. "landed during the stay of the vessel in a port of the
sumption of fact that members of the crew did so land. Eviden was given that the master had reported in writing to the Colles of Customs, who is an officer within the meaning of the third provi of sec. 3 (k), that two members of the crew had deserted. If t proviso be valid, that is enough to bring it into operation and to put the burden of proof upon the defendant. In my opinion proviso is valid. I think it may be supported as an exercise of t power to make laws with respect to immigration. It is unnecessar,
of the Constitution. I think upon its construction the section is confined to proof in legal proceedings of the character of " pr0- hibited immigrant' and the fact of unlawful entry. Upon s
matters, falling as they do within the subject over which the Com- monwealth 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 con- tingency 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 t defendant. :
I therefore think that, with the aid of the third proviso to see. 3 I the offences charged were proved.
Evarr 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 (1),
In my opinion sec. 9 is a valid exercise of the power of the Cor monwealth to make laws with respect to immigration. That sectio imposes upon persons in direct or indirect control of vessels it Commonwealth waters the duty of preventing the entry from th vessels into the Commonwealth of prohibited immigrants. s imposition of vicarious responsibility is well known. Instano are to be found in the Navigation Act, and in various Immigratio Acts before Federation. :
The third and first provisoes to sec. 3 (/) are also in my opinion va They operate to make proof of certain matters prima. facie evidel that a person is a prohibited immigrant. The criterion adopt seems both reasonable and relevant, but Williamson y. Ah On seems to show that the relevance of the criterion does not matte The principle of Williamson v. Ah On determines this part of the case. Difficult though it may be, a person charged under s 9 is at liberty to rebut prima facie proof by " contradictory and
Solicitors for the applicant, Green, Wynne, Riddell, Dobson d Middleton. Solicitor for the respondent, W. H. Sharwood, Crown Solicitor { the Commonwealth. 3 H. D. W.
(1) (1906) 3 C.L.R. 1089, (2) (1926) 39 CLR, 95. (3) (1926) 39 C.L.R., at p. 128. "
Appeal dismissed; orders nisi discharged. The two convictions and fines imposed by the Court of Petty Sessions therefore remained undisturbed.