Griffin v Wilson [1935] HCA 16

. RESPONDENTS, been admitted into the Commonwealth as an indentured labourer for service in the pearling industry and is deemed by. the Minister to be an undesirable per- son, may, if at any time thereafter, he is found within the Commonwealth, be required to pass the dictation test, a1 shall, if he fails to do so, be deemed to

a prohibited immigrant off against this Act. (2) Any i

he has entered the Commonwealth required to pass the dictation tes shall if he fails to do so be deemed to be a prohibited immigrant offending against this Act. (3) In any prosect tion under either of the last two ceding sub-sections, the averment

the prosecutor, contained in the infor. mation, that the defendant is an grant who - (a) has evaded an 0

AppiicaTIon under sec. 40 of the Judiciary Act 1903-1933 for the H.C. or A.

removal to the High Court of a cause pending in the Supreme Court of New South Wales, and AppraL.

In an information laid by Richard William Wilson, an officer of the Customs Department, it was alleged that one Gerald Griffin was a prohibited immigrant within the meaning of the Immigration Act 1901-1933, in that he was an immigrant who had entered the Commonwealth within five years before failing to pass the dictation test, and that within five years after he had entered the Common- wealth, namely, on 26th November 1934, he was required at Sydney, New South Wales, to pass the dictation test within the meaning of the Act and failed to do so, and on the said date was found within the Commonwealth in contravention of the Act. At the hearing before the magistrate, counsel for Griffin claimed that the information disclosed two offences, one under sec. 5 (2), and the other under sec. 7 of the Act. Counsel for the informant stated that the only offence charged was that created by sec. 7, and that the remainder of the matter contained in the information was by way of averments. 'The evidence showed that on 26th November 1934 Griffin appeared at the Central Police Court, Sydney, on another charge. He was remanded. Whilst formal matters with regard to bail were being attended to, Griffin was taken to a near-by room where a passage of sixty-two words in the Dutch language was read to him by an officer of the Customs Department, as a dictation test under the

a8 where no officer is stationed ; (c) obtained entrance or re-entrance into the Commonwealth by means of any certificate, credentials or identifica- tion card which was not issued to him or is forged or was obtained by false representations ; (d) has been tempor- arily admitted into the Commonwealth in pursuance of a special arrangement between the Commonwealth Govern- 'ment and another Government and has failed to observe the conditions of his

the Commonwealth as an indentured labourer for service in the pearling industry and is deemed by the Minister to be an undesirable person ; or (f) has entered the Commonwealth within five Years before failing to pass the dicta- tion test, shall be deemed to be proved. in the absence of proof to the contrary by the personal evidence of the defen-

dant either with or without other evidence." By sec. 7: - " Every pro- hibited immigrant entering or found within the Commonwealth in contra- vention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary con- viction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth. Provided that the imprisonment shall cease for the pur- pose of deportation, or, subject to authority being granted by the Minis- ter, if the offender finds two sureties each in a sum of one hundred pounds and each approved by the Collector of Customs for his leaving the Commonwealth within one month."

• Immigration Act. Griffin did not write anything on the paper with

which he had been supplied. The officer then said : - " You have failed _ to pass the dictation test. You are now a prohibited immigrant." Evidence was given by the officer that Griffin arrived at Sydney shortly after 3 o'clock p.m. on 2nd November 1934, as a passenger on the s.s. Monowai, and that he left Sydney at about 3.45 pm. on the same day on the s.s. Marama. Evidence was not given by or on behalf of Griffin. There was not any evidence to show where Griffin was born; where he had his home; or whether he had returned from a short, or Jengthy, sojourn overseas; that he was an immigrant ; or that he had been within the Commonwealth for a specified period. The magistrate held that there was evid that Griffin had entered the Commonwealth within five years befor the dictation test. It was submitted on behalf of Griffin that, in the circumstances, he was not "' found" within the Commonwealth within the meaning of sec. 7 of the Immigration Act, and also that' ' the averment provisions of sec. 5 of the Act did not apply to an offence charged under sec. 7. The magistrate held that Griffin was a prohibited immigrant within the meaning of secs. 3 (a) and 5 (2) of the Act, and that he was at the relevant date and time found within the Commonwealth in contravention of the Act. He furthe held that the information was for one offence only. Griffin wi convicted and sentenced to a term of imprisonment. He appeale to the Supreme Court of New South Wales by way of case stated, the question for determination being whether the magistrate's determination was erroneous in point of law. In the opinion of

Griffin's behalf of an application to the High Court for the matter to be removed to that Court under sec. 40 of the Judiciary

the matter into the Full Court of the High Court, and it now came 0 for hearing. :

G. Lytton Wright, for the applicant. The provisions of sub-see. 3 of sec. 5 of the Immigration Act 1901-1933 apply only to offen charged under sub-secs. 1 and 2 of that section, and are inapplicable _

to offences charged, as here, under sec. 7 of the Act. The offence H- ©. or A.

created by sec. 7 is distinct and separate from offences created under sec. 5 (1) and (2). As the averment provisions of sec. 5 (3) do not apply, there is not any evidence that the applicant is an immigrant ; therefore the prosecution must fail. The provisions of the Act which purport to authorize the imposition of a term of imprisonment upon failure to pass the dictation test, without an opportunity being afforded to the person concerned voluntarily to leave the Common- wealth, are not a valid exercise of the immigration power, and are ultra vires. An inter se question of the constitutional powers of the Commonwealth and the State is involved in this matter. The position here is somewhat different from that present in James v. South Australia (1). In the circumstances the applicant was not "found" within the Commonwealth. He did not flout the Act. He had not had an opportunity of leaving the Commonwealth.

Ricu J. We think the matter should be removed to this Court under sec. 40 of the Judiciary Act 1903-1933.

G. Lytton Wright. The information disclosed two offences, that is, one under sec. 5 (2), and the other under sec. 7 (Ea parte Evering- ham (2); Johnson v. Needham (3); R. v. Hammick; Ex parte Murdoch (4) ). Upon a prosecution under sec. 7 it must be proved by affirmative evidence that the person charged is a prohibited immigrant ; recourse cannot be had to sec. 5 (3). Sec. 7 relates to see. 3 of the Act. An almost similar point was dealt with in Williamson v. Ah On (5). The operation of sub-sec. 3 of sec. 5 is expressly limited to prosecutions under sub-secs. 1 and 2 of that section. The statutory provision which purports to authorize the _ imposition of a term of imprisonment upon failure to pass the dictation test is invalid.

The Commonwealth is not empowered to interfere with the liberty of the subject in this way (Huddart Parker & Co. Pty. Ltd. v. Moore- head (6) ).

(1) (1927) 40 C.L.R. 1. (4) (1918) W.N. 11 (2) (1870) 9 s N.S.W.) 250. (5) (192 (3) (1909) 1 K.B. 626. (6) (1909) 8 C.L.

A. R. Taylor, for the respondents. The information disclosed only one offence, that is, under sec. 7, that the applicant, a prohibited immigrant, was found within the Commonwealth in contravention of the Immigration Act. The form of complaint in Williamson v. Ah On (1) was in substantially similar terms to the information in this case. The allegation that the applicant was a prohibited - immigrant shows that the offence charged was laid under sec. 7. Apart from sec. 5, there is not any power conferred upon the immigra- tion authorities to compel persons who entered the Commonwealth -

in an abnormal manner to submit to the dictation test. The expres- sion "found within the Commonwealth " in sec. 7 refers to persons - who after their entry into the Commonwealth have become prohibited - immigrants pursuant to other provisions of the Act, e.g., secs. 3, 5 (1) @), (e), and (2). The word "found" refers back to sec. 5. - The words " entered," "entering," and "entry" refer to persons _ who at the time of coming into the Commonwealth are prohibited _ mmigrants. The intention of the Legislature as expressed in sec, 5 (2) was to enable the immigration officers to impose the dictation test, and upon his failure to pass the test a person came within the category of those who, at the time of their coming into or entering the Commonwealth, were prohibited immigrants. The words used _ are not sufficient to create a special offence. If the operation of sec. 7 were restricted to offences created under that section and sec. 3, the word "found" would be unnecessary. The finding of a person for the purpose of administering the dictation test, plus that person's failure to pass the test, is sufficient to constitute the offence of being a "prohibited immigrant found within the Commonwealth." The provisions of sec. 5 (1) and (2) do not create offences, they mitigate the provisions of sec. 7. The concluding words are not restricted to a reference to sec. 7. The "imprisonment" imposed is merely a form of restricted custody placed upon the prohibited immigrant pending deportation. Without that power the power of deportation cannot be made effective. That power is sufficiently wide to include a power to imprison or to impose restrictive custody in respect of persons proposed to be deported. As regards secs. 5 and 7 the purpose of the Act indicates that deportation should follow as the result of |

failure to pass the dictation test, not the penalty provided by sec. H.C. oF A.

18. The information here is similar to the information in Gabriel y. Ah Mook (1), where the Court held that the averment provisions of sec. 5 (3) could be used in proof of the offence there charged.

In Ah You v. Gleeson (2) the Court indicated merely that only those averment provisions in force at the date of the particular prohibited immigrant's arrival in the Commonwealth were available upon his prosecution. The respondents are entitled to rely upon ayerments made under the provisions of sec. 5 (3) in order to prove the offence with which the applicant is charged (Maher v. Young (3); see also Ali Abdul v. Maher (4) ).

Ric J. An offence is created under sec. 5 (1) and (2) of the Immigration Act 1901-1933 to which sub-sec, 3 of that section is referable.

The offence charged in this case is created by sec. 7 to which the ayerment sub-sec. 3 of sec. 5 does not apply.

The offence in question requires evidence of the ingredients or make-up, and as none was given, and the averment sub-section to which I have referred does not apply, the conviction should be quashed.

Before parting with the case I wish to add this, that the Immigra- tion Act 1901-1933 is the result of the Immigration Restriction Act 1901 and ten or more amending Acts. The original Act presented difficulties of construction because of apparent incongruities of draftsmanship ; the legislation has become, in the course of amending, most confused - and confusing on many important points - and it well merits the attention of the Legislature.

In consequence of the confused state of this and other Acts of Parliament an unnecessary burden is placed on the Court, whose duty it is to declare the law as it has been expressed without regard to speculation as to how it might have been expressed if fuller consideration had been given to the matter.

In my opinion the question in the case stated should be answered in the affirmative and the conviction quashed.

(1) (1924) 34 C.L.R. 591. (3) (1931) 31 S.R. (N.S.W.) 363 ; 48 (2) (1930) 43 C.L.R. 589, at p. 596. W W.) 116. (4) (1931) 46

Srarke J. Tagree. In my opinion the case is concluded by the opinions expressed in this Court in Williamson v. Ah On (1) and Ah You v. Gleeson (2), and in the sense that sub-sec. 3 of sec, 5 only applies to the two preceding sub-sections, and has no application to the offence stated in sec. 7. I would add that in the report of Ah You v. Gleeson (3), the reference to sec. 7 of the Immigration Act 1901-1925 seems to be a misprint, and "sec. 7" should read " sec. 5."

Drxon J. I agree. In my opinion the information was laid under sec. 7, and the prosecutor rightly so stated in the Court below.

Sec. 7 contains its own difficulties when it is applied to cases wher an immigrant is prohibited because he fails to pass the dictatio test after he lands in Australia. One difficulty lies in the y " found," which is scarcely appropriate, or at any rate is not a nat expression in relation to persons such as the defendant, who either in custody or almost in custody at the moment that dictation test was applied to him. He is supposed then immediat to have been "found" as a prohibited immigrant. Putting upon one side as a minor point, sec. 7 presents another ques which has been argued, but which we do not decide or express any opinion about. That question is whether in the case of immigrants who have entered Australia and have resided here, and then have the dictation test administered to them, the provision rendering them liable to imprisonment is within the immigration power.

The prosecution having been launched under sec. 7, the prosecutor relied upon sec. 5 (3) in the place of actual evidence proving the ingredients of the offence created by sec. 7, or some of them. Sub-sec. 3 of sec. 5 by its express words is limited to prosecution under either of the two preceding sub-sections. These words appear to me to be explicit, and not to admit of the construction by which they are applied to a prosecution for an offence created by sec. 7, in which prosecution the ingredients established by sub-secs. 1 and 2 of sec. 5 are relied upon to make out the offence charged. It is possible that the Legislature did not intend this consequence of the language, but it has used language which, in my opinion, admits of no other interpretation.

(1) (1926) 39 C.L.R. 95. (2) (1930) 43 C.L.R. 589. (3) (1930) 43 C.L.R., at p. 595.

I do not agree with the contention advanced in order to lay a H- ©. or A.

foundation for giving to sub-sec. 3 a different meaning, namely, the contention that there are no offences created by sub-secs. 1 and 2 of sec. 5. I think the language of this section is language which was apt to create offences and which, coupled with sec. 18, succeeded in doing so.

For these reasons, the evidentiary provisions seem to me to be inapplicable to a prosecution under sec. 7, and upon that ground, and that alone, so far as our present decision is concerned, the

Evarr J. [agree with Rich J. In my opinion, first, the offence charged against the appellant was under sec. 7; second, sec. 5 (2) creates a separate and distinct offence from that created under sec. 7 ; and, third, sec. 5 (3) has no application to prosecutions under sec. 7.

The framework of sec. 5 (3) makes the conclusions too clear for argument, but, if authority is needed, the precise points appear to be covered by the remarks of Rich and Starke JJ. in the case of Williamson v. Ah On (1), and apparently by an observation of Isaacs J. in the same case (2). The appeal should be allowed

McTiernan J. The decision of Rich and Starke JJ. in Williamson vy. Ah On (1) with respect to sub-secs. 1 and 2 of sec. 5 was that these sub-sections constitute "separate and distinct offences and are not instances of a general offence constituted by the provisions of secs. 3 and 7." The words of sub-sec. 3 of sec. 5 expressly confine its operations to proceedings under sub-secs. 1 and 2 of sec. 5.

T agree that the prosecution was instituted under sec. 7, and that sub-sec. 3 of sec. 5 does not apply to proceedings under sec. 7.

q Question submitted in the case stated answered in ; the affirmative. Conviction quashed. Respon- 2 dent to pay the costs of applicant in this Court : and the Courts below.

: Solicitor for the respondents, W. H. Sharwood, Commonwealth

(1) (1926) 39 CLR, at p. 129. (2) (1926) 39 C.LLR., at p. 105.