Gamble v Lau Sang

This case involved an appeal to the High Court of Australia from a decision of a Court of Petty Sessions of New South Wales. The appellant, Leo Thomas Gamble, a detective inspector with the Department of Trade and Customs, laid informations against the respondents, Lau Sang and Luk Ling, alleging they had committed an offence under section 5(6) of the *Immigration Act 1901-1940*. The charge was that each respondent, being an immigrant who had entered the Commonwealth within the preceding five years, had been required to pass a dictation test and failed to do so, thereby being deemed a prohibited immigrant offending against the Act.

The legal issues before the High Court were whether the magistrate erred in law by acquitting the respondents. Specifically, the court had to determine if the magistrate was correct in holding that section 5 of the *Immigration Act* referred back to the exceptions provided in section 3, particularly section 3(k), and that the respondents, as members of a ship's crew who had landed and remained in the Commonwealth, were therefore not prohibited immigrants. The court also considered the effect of averments in the informations and the onus of proof regarding exceptions.

Latham C.J. held that the provisions of section 5 of the *Immigration Act* were substantive and independent of section 3. Section 3 defined who was a prohibited immigrant, but section 5 created a distinct offence for those deemed prohibited immigrants by virtue of section 5 itself. Under section 5(2), an immigrant failing a dictation test within five years of entry was deemed a prohibited immigrant offending against the Act. The magistrate's finding that the respondents failed the dictation test within five years of entry, remained in the Commonwealth, and were employed without permission, established the offence under section 5(6), irrespective of their status as crew members at the time of entry. The court concluded that section 3 did not modify or affect the provisions of section 5.

The High Court answered the question posed in the case stated in the affirmative, finding the magistrate's determination to be erroneous in point of law. The case was remitted to the magistrate.