Amess v Bremen (1959) 102 CLR 171; 33 ALJR 396; [1960] ALR 97; No152; [101/1959]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: McTiernan J, Fullagar J, Taylor J
• Judgment Date: 17 December 1959
• Citation: [1960] ALR 97; No152; [101/1959]
• Year: 1959

High Court: McTiernan J, Fullagar J, Taylor J

Judgment Delivered: 17 December 1959

1 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 Act 1932–1940 (Papua and New Guinea), s4(1), s4(2)(e), s12.

2

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PRIOR–HISTORY: APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

Hewton Oswald Amess was the holder of a New Zealand master's certificate for vessels up to five tons net and on 3rd March 1959 left Gizo in the British Solomon Islands Protectorate as the master of the "Vega", a motor vessel of which he was the owner and which had a net tonnage of 4.2 tons.

On the same day, the vessel arrived at Buin, which is situated at the southern end of the island of Bougainville within the Territory of Papua and New Guinea. In going to the Territory, Amess intended to investigate the commercial possibilities of crocodile hunting and, after going ashore at Buin, seeing various officials and completing a number of forms in his capacity as master of the "Vega" he left Buin the same day and sailed along the west coast of Bougainville.

During the voyage, he made several hunting excursions on or adjacent to the shore and his next port of call was Sohano, approximately 120 miles north of Buin. He was there informed by a district officer that he was unlawfully in the Territory and he then proceeded to Rabaul to see the Immigration authorities there and to attempt to obtain permission to remain in the Territory. Permission was not granted and he was ordered to depart from the Territory within forty–eight hours. This he refused to do and he was charged under s12 of the Immigration Act 1932–1940 of the Territory of Papua and New Guinea that at Buin in the Territory of New Guinea at or about 5th March 1959 he, being a prohibited immigrant, entered the Territory in contravention of the Immigration Act, s12.

Amess was convicted on this charge by a stipendiary magistrate sitting as a District Court at Rabaul and thereupon he appealed to the Supreme Court of the Territory, which dismissed the appeal. Amess then sought leave to appeal to the High Court.

AHS Conlon, for the applicant.

DS Hicks, for the respondent.

Cur. adv. vult.

DISPOSITION: 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.

SUMMARY: S4(1) of the Immigration Act 1932–1940 (Papua and New Guinea) prohibits the entry into the Territory of certain specified categories of persons therein referred to as "prohibited immigrants." Subsection (2) of s4 provides:—"Nothing in the last preceding subsection 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." S12 imposes a penalty upon any prohibited immigrant who enters the Territory in contravention or evasion of the Act.

Held, that the master of a vessel who enters the Territory during the stay of his vessel, albeit intending to remain therein, is not a "prohibited immigrant" within s4(1) and accordingly cannot be convicted of an offence under s12.

The provisions of s4(2)(e)...