HL 2, Green, Gort. Print, Melb. oar IN THE HIGH COURT OF AUSTRALIA. oo BED Be REASONS FOR JUDGMENT. Judgment delivered at... weEBOBREE———-—~ TATHAN Code Various questions have been argued upon this application. In the forefront of those questions stands the matter of the interpretation of sec, 39 of the Native Administration Act 1905-36. The section is in the following termss- "It shall not be lawful for any person, other than a superintendent or protector, or a person acting under the direction of a superintendent, or under a written permit of a@ prowetor, without lawful excuse to enter or remain or be wi or upon any place where natives are camped or where any natives may be congregated or in the course of travelling in parsuanee of any native custom." The latter words, releting to congregation and travelling, were added by an amendment made in the year 1936. The rest of the section is in the following termst- 'Any person, save as aforesaid, who, without lawful proof whereof shall lie upon hin, is found in czoures the Bread the of-any such camp shall'be guilty of an offence against this aety but no person shall be prosecuted for an offence under this section except by the direction of a protector." The applicant, Hugh Peter Vere Hodge, is not a superintendent or protector under the set, nor was he a person acting under the direction of a superintendent cor under a written permit of a protector, It was charged that, not being such a person, he did, without lawful excuse, enter upon a place where natives were congregated contrary to sec. 39 of the set, It was proved that t toa in the bush mee oF ae were ee Guneregate : Redes. want, J ° place/was mear a native camp bu 3 in or within five chains of the camp. Accordingly, he was not guilty of any offence under the latter part of the seetion, which provides that it shall be an offence without lavful excuse for any person without a permit or praper authority to be found in or within 5 chains of a camp. 'The prosecution, therefore, was based entirely upon the earlier words of the section, which prohibit unauthorised persons from entering within or upon certain places. Various questions have been raised, with some of which it is unnecessary to deal in the view which we take of the meaning of the seetion. There / 2. There vas no evidence that the natives were congregated at the place where they were in pursuance of any native custom. Accordingly, if the vords "in pursuance of any native custom" are attached to and modify the word "eongregated" as well as the word "travelling", there was no evidence of the offence charged. That is the question which stands in the forefront of the case, fhe Supreme Court has held that the words "in pursuance of any native custom" modify only the word "travelling" and that therefore the word "congregated" is to be read apart from these final words of the first paracraph of the section. In wy opinion the words are qspable of either construction, but the more reasonabls construction, having regard not only to the precise words of the section, but to the provisions of the set as a whole, is to attach the words both to "congregated" ani to "travelling". I eall attention to the cireumstances that the word "where" is used twice and not three times, and that the words "may be" are used once and not twiee, These are considerations which aid the view that "in pursuance of any native custom" belong to both "gongregsted" and "travelling". There are obvious reasons for preserving the natives from intrusion by Europeans upon their ceremonial observances, whether thofe ceremonial observances are conducted when congregated, thet is, in a native assembly, or in the course of travelling. If the other construction were adopted the result would be that whenever natives came in numbers to any place, the question would arise as to whether Europeans could be present at all. The answor to the question would depend upon the interpretation of the worde "without lawful excuse", In sy opinion the section should be construed by holding that the words "in pursuance of any native custom" should be attached to "congregated" as well as/*travei ling" and upon this ground in wy opinion special leave to appeal from the order of the Full Court should be granted and, the application being by consent treated as the hearing of the appeal, the appeal should be allowed. The order of the Supreme Court should be discharged, the decision of the Magistrates and the conviction thereon should be set aside and in/ 3e in lieu of that order the complaint should be dismissed. 'The Supreme Court in Western Australia had power upon the proceedings by way of order to review the decision of the Magistrates, to set aside the decision eppealed from, and to quash the conviction. In my opinion that is the order which should now be made by this Court. qubomEnT DIXOH Ja The question whether the provision standing as sec. 39 of the 'Native Administration Act 1905-1936 makes it en offence to enter or remain or be without lawful excuse within or upon any place where natives may be congregated independently of the purpose of their congregating depends entirely on the meaning of the provision, The meaning is primsrily to be ascertained from the form in which it is expressed, It is expressed in a form the prima fecie meaning of which,as I understand English usage, is that,to constitute the offence,the natives must be congregated PLarethes ore erent "Be ~ gongrecated or in the course of travelling in pursuance of any Prima facie the effect of ints order of words is to state two complete conditions ; one by/words " where natives are camped " and the other by the words beginning " or where ". The latter is an alternative condition alse complete in itself but containing subordinate elternatives. Prima facie the subordinate glternatives " congregated or in the course of travelling " are both governed or modified by the words " in pursuance of any native custom." To attach these words to the second limb only of these alternatives, though not impossible, is both awkward end artificial. How awkward will be found if an attempt 1s made to read the words aloud so as to convey that meaning, To do so involves a pause after the word " congregated " followed by an unnaturally sustained if not hurried endeavour to read the remaining words without any hint of a pause or division between the words " travelling " and * in pursuance ", If the words " in pursuance of any native custom " were not meant to modify " congregated * the phrase should have been written " where any natives may be * in the course of travelling in pursuance of any native euaton " or may be congregated. " But,yas they are in fact written, the reader, unless his mind be controlled by some considerations external to the precise text or unless his sensibilities to English forms of speech have been dulled,will more naturally understand the second limb of the provision as dealing only with the case of aborigines,in pursuance of native custom, I cannot find/in the context or subject matter any indication whatever of a wider intention. Indeed the balance of probabilities Gerived from such considerations as appear from the context and subject matter, appear to me to preponderate in favour of the view that it was not intended to make it an offence to be or remain without lawful excuse in any place where natives might congregate independently of the purpose for which they ceme together. It is a gratuitous assumption that the Legislature, in adding the words in question to the original provision,as it did in 1936,had any policy in view beyond the exclusion of strangers when natives are $$$ carrying out any tribal or native euston. To enlarge a penal provision upon the supposition that 'the objects of the Act require the widest interpretation is not in accordance with the comeon law rules of construction, So far from its being permissible to adopt such a course,the rule ig that,if the words of a penal provision are susceptible of two interpretations,the narrower should be adopted unless satisfactory reasons appear persuading the mind that the wider meaning in truth was intended. In the present instance the prima facie meaning is the narrower and there is nothing to warrant the judicial adoption of a secondary and wider meaning. im my opinion special leave to appeal should be granted. Treating the matter as an appeal duly instituted,the appeal should be allowed and the conviction quashed. STARREJ. . I have more doubt about this matter than the other movbers of the Court, because I think that they depert from the prima facie rule of construetion, and alse becsuse that construction withdraws some protection from the aboriginals which 4t is possible the Legislature intended. But the matter is not of any great importance, for the Parliament of vestern Australia ean, if it thinks the view of the Supreme Court is right, easily alter the section by a slight reearrangement of the words « putting the words "may be comgregated " after the sentence ending with "native custom". And it might also consider whether the intention is that the offence should be punished summarily and, if se, @learly so to provide. On the whole I do not dissent from the decision vhich has been given, Sc ommeenenmenmeeeneeenad BIChJ, I agree, EILLIAM J. I agree substantially with the reasons of the chief Justice end have nothing to add, Special leave to appeal from order of Full Court of 2st Oetober 1946 gronted, By consent application treated as app@al pursuant te such special leave duly instituted. Appeal allowed: order of Supreme Court discharged. Decision of Magistrates and conviction thereon set aside, In licu thereof complaint dismissed. Respondent to pay appellant's costs of order to review in Supreme Court before Yolff J. and Full Court,of the application for special leave and of the appeal.