Muller v Dalgety & Co Ltd

Case [1909] HCA 67


9 CLR 693

COMPLAINANT,

DALGETY &CO. LIMITED AND ANOTHER RESPONDENTS.

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Immigration Restriction Act 1901-1908, secs. 9A, 9B, 9c, 9p-Prohibited Immigrant

Stowaway-Deemed to be-Port of Fremantle.

Sec. 9D of the Immigration Restriction Act 1901-1908 does not exhanstively define the term stowaway as used in sec. 9A, but must be construed as an extension of that term, and as indicating that persons belonging to the class mentioned, though not in fact, apart from the section, stowaways, shall be deemed to be stowaways for the purposes of the Act.

The offence created by sec. 9A is complete at the coming of the ship into port, and cannot be purged by subsequent notice, even if that notice be given at the earliest possible moment after knowledge of the fact.

The word port as used in the Immigration Restriction Act 1901-1908 is, in the absence of any definition in the Act itself, to be regarded in the ordinary sense of a shipping or commercial port, and as such includes, in the case of the Port of Fremantle, Gage Roads, Carnac, and Owen's Anchorage.

Judgment of Burnside J., reversed.

APPEAL from the decision of Burnside J.

The facts are set out in the judgments hereunder. Barker, Crown Solicitor, for the appellant. All that the com- plainant had to prove was that the vessel came into port with

9 CLR 694

stowaways on board. Sec. 9D. is not to be read as part of sec.

9A and as defining "stowaway" in that section. The section is framed SO as to make masters of ships very vigilant in searching for stowaways. It is malum prohibitum, in which mens rea is not necessary, and it is immaterial whether the master knows of the presence of stowaways on board or not. That Gage Roads, Carnac, and Owen's Anchorage are within the port of Freemantle is shown by the following Statutes and Ordinances:-Customs Act, No. 6 of 1901, sec. 18; Fremantle Harbour Trust Act 1902, 2nd Ed., No. 17; An Act for the Regulation of Customs in Western Australia, 4 &5 Vict. No. 2; 14 Vict. No. 20; 18 Vict. No. 10; 18 Vict. No. 15 (which authorized the Harbour Master to collect charges for the removal of ships from Gage's Roads into Owen's Anchorage); 47 Vict. No. 17. In the case of Asshe- ton Smith v. Owen 1 the word "port" was construed widely. Hunter v. Northern Marine Insurance Co. 2 dealt with the meaning of "port" in reference to a policy of an insurance, and Sailing Ship " Garston" Co. v. Hickie &Co. 3 in reference to the case of a charter party.

Moss K.C. and Dwyer, for the respondents. The proper meaning of a "stowaway" is a person who conceals himself on board a ship in order to evade payment of passage money. The Chinese in this case had not this object, SO they were not stow- aways in the ordinary acceptation of the term. But even if…

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Muller v Dalgety & Co Ltd [1909] HCA 67
Case
[1909] HCA 67
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CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of Western Australia to the High Court of Australia. The appellant, a police officer, had laid a complaint against the respondents, the master and agents of the steamship *Paroo*, for bringing prohibited immigrants into the port of Fremantle, contrary to section 9A of the *Immigration Restriction Act 1901-1908*. The respondents had been convicted by a Police Magistrate but this conviction was overturned on appeal to the Supreme Court. The core of the dispute revolved around the interpretation of "stowaway" and the definition of "port" within the context of the Act.

The legal issues before the High Court were twofold: first, whether section 9D of the *Immigration Restriction Act* provided an exhaustive definition of a "stowaway" or merely extended the meaning of the term as used in section 9A; and second, whether the areas known as Gage Roads, Carnac, and Owen's Anchorage constituted part of the "port of Fremantle" for the purposes of the Act at the time of the vessel's arrival. The respondents argued that if section 9D applied and they had complied with its notification requirements, no offence was committed, and alternatively, that the vessel had not yet entered the port of Fremantle when the stowaways were discovered and reported.

The High Court, in allowing the appeal, reasoned that section 9D of the *Immigration Restriction Act* was not an exhaustive definition of a "stowaway" but rather an extension of that term, creating a "statutory fiction" to include persons who were not actual stowaways but whose presence on board required notification to immigration officers. The offence under section 9A was complete upon the ship's arrival in port with stowaways, and this offence could not be purged by subsequent notification, even if given at the earliest possible moment. Furthermore, the Court held that Gage Roads, Carnac, and Owen's Anchorage were, by virtue of historical usage, statutory provisions, and the practicalities of shipping operations, considered part of the port of Fremantle. The Court found that the vessel had entered the port of Fremantle on 28th February 1909, at which time it had stowaways on board, and that the subsequent discovery and notification did not absolve the respondents of liability.

Consequently, the High Court reversed the decision of the Supreme Court of Western Australia and restored the conviction of the respondents. The appeal was allowed.

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