Chu Shao Hung v The Queen

[12]

The Full Court took the view that the words "Penalty: Imprisonment for six months" meant that a conviction must necessarily be followed by a sentence of imprisonment for a term of six months. In other words, it was held that the words prescribed a minimum, as well as a maximum, penalty. This view may not be necessarily decisive of the question of the applicability of s. 20 of the Crimes Act, but, in any case, I am, with respect, unable to accept it. I am not able to see any real reason for saying that the construction of the words in question is not governed by s. 41 of the Acts Interpretation Act 1901-1950, which requires those words to be construed as providing for a maximum penalty. The Full Court considered that the expression "imprisonment for not more than six months", which occurs in s. 7, was to be contrasted with the language used in s. 5 (6). The difference in language is, as Kitto J. has pointed out, explained by the fact that s. 7 was originally enacted before, and s. 5 (6) not until after, the enactment of what is now s. 41 of the Acts Interpretation Act 1901-1950. And the difference in language seems indeed rather to support the inference that the same thing is intended, not that different things are intended. If s. 5 (6) and s. 7 dealt with mutually exclusive subject matters, the contrast might indeed support the inference that different meanings were intended. But the two provisions appear to overlap, the ground covered by s. 7 including the whole of the ground covered by s. 5 (6). In these circumstances the presumption must be that the same penalty is intended for the same offence. There is also a reason of substance for supposing that the penalty prescribed by s. 5 (6) should be a maximum penalty and not a fixed penalty. For s. 5 (6) operates to create a number of offences which would naturally be regarded as of differing degrees of seriousness. In each case the decisive element in the offence itself is failure to pass a dictation test. But a case in which the person charged had entered the Commonwealth lawfully, and was guilty merely by virtue of the application of s. 5 (2), might well be regarded as meriting a less severe penalty than a case in which the person charged had entered by means of a forged passport and was guilty by virtue of the application of s. 5 (1) (c).

[24]

But that is not to say that there is any inherent incompatibility between a conviction under s. 5 (6) and the release of the convicted person on his or her giving security to be of good behaviour and to comply with any other conditions imposed by the court. It may well happen that, by reason of his personal characteristics, state of health or other circumstances the court considers it undesirable to send him or her to gaol, and yet that the court is satisfied that all practical considerations in relation to deportation will be fully met if security is taken that the person will report periodically to the immigration authorities, or will remain in a specified area, or will perform other conditions ensuring his or her instant availability if deportation is ordered, and will be well-behaved while the question of deportation is being considered. It is true that the ancient power of magistrates to bind over to be of good behaviour "all them that be not of good fame" required for its exercise some "cause of scandal", some conduct which was contra bonos mores if not actually contra pacem: Blackstone's Commentaries on the Laws of England, 15th ed. (1809), vol. 4, p. 256; R. v. Sandbach; Ex parte Williams [1] . It was a power to oblige those persons whom there was a probable ground to suspect of future misbehaviour "to give full assurance to the public, that such offence as is apprehended shall not happen": Blackstone's Commentaries on the Laws of England, 15th ed. (1809), vol. 4, p. 251. It is not to be supposed that a conviction under s. 5 (6) of the Immigration Act would provide an occasion for the exercise of that power. But the power conferred by s. 20 of the Crimes Act is not similarly conditioned. It arises, according to the express terms of the section, whenever a person is convicted of an offence against the law of the Commonwealth; and it is obvious that by no means all such offences give cause for apprehension of future misbehaviour. The fact, therefore, that a conviction under s. 5 (6) does not necessarily betoken any wrongdoing affords no ground for treating s. 20 as inapplicable. Nor should I regard that section as inapplicable because of an apprehension, which the learned judges of the Supreme Court appear to have felt, that a bond to be of good behaviour would oblige a person, convicted under s. 5 (6) by reason of having failed to pass a dictation test under s. 5 (2), not to continue to commit or repeat the "offence". The obligation of such a bond is against actual misbehaviour: Blackstone's Commentaries on the Laws of England, 15th ed. (1809), vol. 4, pp. 255, 257; Lansbury v. Riley [2] . Their Honours suggested that there would be no method, short of leaving the Commonwealth, whereby an "offender" convicted under s. 5 (6), if he were to give security for good behaviour, would cease to continue committing the "offence" of which he had been convicted. That is true; but, with respect, I cannot think that it throws any light upon the present problem. It does not mean that the conditions of the bond would be broken automatically, for it has never been held, so far as I can find, that a bond to be of good behaviour may be broken by doing nothing at all.

[30]

While the Act stood thus, a person who was not a prohibited immigrant under s. 3, but was deemed by force of sub-s. (1) or sub-s. (2) of s. 5 to be a prohibited immigrant offending against the Act, might be dealt with either by means of a prosecution for committing the offence which he was deemed to be committing, or, being found within the Commonwealth, by means of a prosecution for the offence created by s. 7. That sub-ss. (1) and (2) of s. 5 created offences separate and distinct from the offence created by s. 7 was made clear by the case of Griffin v. Wilson [1] in this Court. It was there decided that certain evidentiary provisions, contained in sub-s. (3) of s. 5, were applicable only if the charge were laid under s. 5, and not if it were laid under s. 7. This was a matter of importance to the immigration authorities, because a prosecution under s. 5 had the disadvantage that a conviction produced no other consequence than liability under s. 18 to a penalty not exceeding £50 and in default of payment imprisonment for a period not exceeding three months. In particular, the conviction did not give rise to any power to deport the offender. A conviction under s. 7, on the other hand, enabled the Minister, as has already been mentioned, to order deportation. It was evidently for the purpose of relieving the immigration authorities from the necessity of choosing either to obtain the evidentiary advantages offered by s. 5 and have no power of deportation on conviction, or to obtain a power of deportation on conviction but enjoy no evidentiary advantages for the purpose of securing the conviction, that the Parliament, only four days after Griffin v. Wilson [1] was decided, enacted the Immigration Act 1935 (Act No. 13 of 1935). The first amendment made by this Act consisted of the addition of the present sub-s. (6) to s. 5. The effect of this was twofold: First, s. 18, which makes a general provision for a pecuniary penalty "where no higher penalty is expressly imposed" became inapplicable to a conviction under sub-ss. (1) or (2) of s. 5, the power of the court on such a conviction being conferred by the words "Penalty: Imprisonment for six months". Secondly, the next words: "and, in addition to or substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister", created the executive power of deportation which previously did not arise upon such a conviction. The second amendment which the 1935 Act made consisted in the addition to s. 7 of the necessary words to make it apply to a person deemed to be a prohibited immigrant offending against the Act as well as to a prohibited immigrant entering or found within the Commonwealth in contravention or evasion of the Act. Thus the amendments recognized and preserved the position that s. 5 created offences as well as s. 7; but there is no longer any difference between the two sections in regard to the consequences which they attach to a conviction. To complete the assimilation of the sections in this respect, the amending Act turned the proviso to s. 7 into a separate section numbered s. 7AA, and amended both it and s. 7A to make them apply to a conviction under s. 5 as well as to a conviction under s. 7. Of course s. 7, in so far as it applies to a person deemed to be a prohibited immigrant offending against the Act, now overlaps s. 5; but this serves to stress the improbability of the six months' imprisonment provided for in s. 5 (6) being other than a maximum.

[33]

Then a point is made that both in s. 5 (6) and in s. 7 the Minister is empowered to order deportation "in addition to or substitution for" the imprisonment; so that (it is said) a sentence of imprisonment for some term is made a condition precedent to the power of deportation, and, for that reason, deportation being what the legislature was primarily concerned to provide for, there is no room for the application of a general section of the Crimes Act which enables security for good behaviour to be taken instead of sentence being passed. It may be accepted as true that the primary object of the provisions made in the Act, with respect to a prohibited immigrant and a person deemed to be a prohibited immigrant offending against the Act, is to empower the Minister in his discretion to order deportation. But while it is, of course, very convenient in many cases that a person whom the Minister may decide to deport should be taken into custody, that is not by any means the chief object of adopting the procedure of the criminal law. The main advantage which it affords is not the physical advantage of having the person charged under lock and key pending trial or after his conviction, but the legal advantage of having an adjudication by a court, precluding the possibility of its being thereafter held that any condition precedent to the exercise of the power to order deportation has not been fulfilled. Thus it is the conviction and not the sentence that is of primary importance for deportation purposes; what happens to the offender pending the Minister's decision as to whether he should or should not be deported is of secondary consequence. To read the words "in addition to or substitution for such imprisonment" as making the power of deportation conditional upon the imposition of a sentence of imprisonment would be to attribute to the legislature an intention, while legislating on the subject of immigration, to subordinate the deportation of a person for whose deportation the provisions of s. 5 (1) and (2) are devised, to the subsidiary matter of imprisonment for an offence which may be purely notional. The words quoted ought not to be so understood. Rather do they mean that a person convicted shall be liable to deportation as well as to imprisonment, and that the Minister may order deportation either in addition to or in substitution for any imprisonment which the court may impose.

Chu Shao Hung v The Queen - [1953] HCA 33 - HCA 1953 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Parties