Koon Wing Lau v Calwell

[1949] HCA 65

High Court of Australia|1949-07-01|Before: Webb JJ, Dixon J, Williams J

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Court

High Court of Australia

Decision date

1949-07-01

Before

Webb JJ, Dixon J, Williams J

Source

Original judgment source is linked above.

Judgment (159 paragraphs)

[1]

These proceedings consist of (1) five actions by individual plaintiffs and five applications by the same persons for writs of habeas corpus (proceedings in the Melbourne Registry) which have been referred to the Full Court by Dixon J., and (2) references by Williams J. of certain questions of law which arise in three actions (proceedings in the Sydney Registry) by thirty-eight plaintiffs. The object of the proceedings instituted by the plaintiffs in the actions and the prosecutors in the habeas corpus proceedings (to all of whom I will hereafter refer as the plaintiffs) is to prevent the deportation of the plaintiffs from Australia either by obtaining an order for release from the custody in which they have been held as a preliminary step to deportation or by obtaining injunctions against deportation.

[2]

The plaintiffs are persons of Chinese race who entered Australia during the war, most of whom are alleged to be war-time refugees who were forced here by the stress of war. Some of them who were seamen left Australia afterwards in ships and returned to Australia. Now they all desire to stay here permanently. The respondents to the proceedings by way of habeas corpus are the Governor of His Majesty's Gaol at Pentridge and Arthur Augustus Calwell the Minister of State for Immigration, or the Officer-in-Charge of the City Watchhouse, Melbourne, and Mr. Calwell. In the actions the defendants are the Minister and the Commonwealth of Australia. Orders have been made by the defendant Minister for the deportation of the plaintiffs under one or other of two statutes which were passed in the year 1949 by the Commonwealth Parliament. These statutes are the War-time Refugees Removal Act 1949 and the Immigration Act 1949. It is contended for the plaintiffs that these Acts are invalid either completely or in their relevant provisions. It is argued that the War-time Refugees Removal Act cannot be supported under any legislative power of the Commonwealth Parliament and, more particularly, that it cannot be supported under the powers upon which the defendants rely, namely, the power to make laws with respect to the naval and military defence of the Commonwealth and of the several States (Constitution, (s. 51 (vi.)); aliens (s. 51 (xix.)); immigration (s. 51 (xxvii.)). With respect to the Immigration Act 1949, it is contended that these plaintiffs have made their homes in Australia and, accordingly, have placed themselves beyond the applicability of any laws with respect to immigration. If the Act applies to them it is therefore, it is contended, invalid. This ground is also relied upon as a means of attacking the validity of the War-time Refugees Removal Act because, it is said, a person who has his permanent home in Australia has a right to remain in Australia which, unless he is an alien, cannot be affected by Commonwealth legislation passed under any power conferred upon the Commonwealth Government - the only possibly relevant power other than the defence power being the power to make laws with respect to immigration.

[13]

On the other hand, it has been contended for the plaintiffs that certain cases recently decided in this Court have laid down a principle that the mere fact that a state of affairs may be said to have resulted from the war in the sense that the war has been a real and perhaps a major contributing element to it is not in itself sufficient to justify legislation with respect to that state of affairs after hostilities have actually ceased. The cases which were relied upon by the plaintiffs were all cases which dealt with laws which were admittedly valid when made, but which were held to be no longer operative by reason of the termination of hostilities and because the argument in support of the continued validity of the legislation failed to establish a real connection of the legislative measures with defence as constituting either a winding-up process or as dealing with a situation created by the exercise of the defence power itself at an earlier period. This, however, is a very different case. The law in question was passed in 1949 after hostilities had ceased. It was not like the Defence (Transitional Provisions) Act 1946 and subsequent similar legislation - a provision that laws enacted during the period of hostilities and valid when enacted should be continued in operation. In Wagner v. Gall [1] , it was argued that a law providing for petrol rationing was valid on the ground that petrol rationing was necessitated by what is known as the dollar shortage and that the dollar shortage was a result of the war. The dollar shortage was plainly a result, not only of the war, but of many events and of varying national policies since the war. It was held that the fact that the war was a contributing cause to the dollar shortage did not in itself justify the continuance in operation of laws which could be made by the Commonwealth Parliament only by virtue of the defence power. Similarly, in R. v. Foster; Ex parte Rural Bank of New South Wales [2] , special provisions for women's rates of pay which were thought by Parliament to have been required by war conditions were held to be no longer operative when those conditions had ceased to exist. But, as has already been said, this is a very different case from those just mentioned. Those cases recognized that if the exercise of the defence power had itself created a situation, the power of Parliament to deal with that situation was more extensive than in the case of what might be described merely as a war result. The exercise of the defence power includes much more than the enactment of legislation. Acts done in pursuance of defence fall within the conception of the exercise of the defence power. Equally, acts done by the enemy may create situations the reparation or removal of which falls within the exercise of the defence power by the Commonwealth. In R. v. Foster; Ex parte Rural Bank of New South Wales; Wagner v. Gall; and Collins v. Hunter [2] , reference was made to actual physical damage caused by the enemy, e.g. by bombing. The reparation of such physical damage by the Commonwealth was said to be within the defence power. But also Parliament may consider that the belligerent activities of the enemy have caused damage to the community by driving or inducing into the community a number of persons who, apart from war conditions, would probably never have been admitted to the country. Whether the presence of these persons would cause what I have called "damage to the community" is a question of policy to be determined by Parliament, and not by any court. (At this stage of the consideration of the case I assume that the Act applies only to persons who could have been refused entry into Australia if the administrative authorities of the Commonwealth had desired to exclude them from the country. I deal with this question hereafter.) The persons included in pars. (b) and (c) of s. 4 are persons who entered Australia as a place of refuge during hostilities, and did so by reason of the occupation or threatened occupation of a place by an enemy, and persons who during that period entered Australia by reason of any other circumstances attributable to hostilities, provided in either case that they did not leave Australia since entering. Upon the supposition which I am temporarily making that all such persons might have been excluded if the Government had so desired, the omission to exclude them must be attributed to considerations of war policy, which are not unaffected by considerations of humanity. It is obvious that the exclusion of such persons in time of war might have greatly damaged the relations of Australia with other friendly people and allies and might therefore have impeded the effective prosecution of the war. The refusal or failure to exclude them involved the positive act of admitting them and of allowing them to remain for some period. This was an act of war policy in the course of the defence of the country. In my opinion the Commonwealth Parliament can deal with the situation thereby created just as in the case of any other act of defence policy on the part of the Government itself or in the case of an act of an enemy which created a situation in Australia which Parliament does not choose to allow to continue.

[15]

I have said, however, that I have hitherto assumed that all the persons referred to in pars. (a), (b) and (c) of s. 4 (1) could have been excluded from Australia. This is so if all those persons at the time of entry were immigrants into Australia so that they could have been excluded when they originally entered Australia if the administrative authorities had chosen to apply the provisions of the Immigration Act. But it is argued that the provisions for the deportation of persons within pars. (a), (b) and (c), or at least of non-aliens falling within pars (b) and (c), are wide enough to apply to persons who were originally immigrants but who have established a permanent home in Australia, and it is contended that no such persons can be deported from Australia, at least by virtue of laws made under the power to make laws with respect to immigration. I reserve this subject for consideration in relation to the Immigration Act 1949, but it may be pointed out that par. (e) of s. 4 (1) excludes from the operation of the Act persons who were born in Australia. Accordingly any person who was born in Australia, whether he has a permanent home here or not, does not come within the provisions of the Act. Paragraph (d) excludes from the application of the Act persons who at the time of their entry were domiciled in Australia. A person can have only one domicile at any given time. All persons have a domicile of origin - their place of birth. Persons born here are expressly excluded from the Act: par. (e). If they have retained an Australian domicile of origin they are doubly excluded - by par. (d) and par. (e). The other kind of domicile in the case of persons not under a disability of any kind is a domicile of choice. The essential feature of a domicile of choice is that the person concerned has a fixed purpose of making his principal or sole permanent home in a particular country where he in fact resides. Thus if a person has retained his domicile of origin in Australia or has chosen to make his permanent home here and resides here he is domiciled in Australia and the provisions of the Act do not apply to him. But the domicile of infants follows the domicile of the father or, in certain cases, of the mother and the domicile of married women follows the domicile of their husband: see the summary of the law as stated in Halsbury's Laws of England, 2nd ed., vol. 6, pp. 208-209. Such persons, though not domiciled in Australia, may have had a permanent home in Australia at the time of entry or have acquired such a home since entry. If they were not born here or are not domiciled here the Act does apply to them. In relation to such persons it is necessary to consider the extent of the power of the Commonwealth Parliament to make laws with respect to immigration.

[31]

It is said by way of concession that entry may be made subject to conditions imposed by law and that upon breach of a condition the entrant may be deported. But such a statement impliedly negatives the proposition which it is supposed only to qualify. If a person can, by his own act in definitely deciding to make his home here and to associate himself with the community, bring his immigration to an end, then no legislation passed under the power to make laws with respect to immigration can thereafter be applied to him. The imposition of conditions breach of which would authorize deportation would in itself involve a denial of the proposition that a person by his own act may become a member of the Australian community so as to become exempt from the application of a law with respect to immigration. In my opinion immigration is an act which, when completed, involves both entry and settlement and under a power to make laws with respect to immigration both entry and settlement can be facilitated or restricted or prevented. I repeat what I said in O'Keefe v. Calwell [1] - A power to make laws with respect to immigration " is a power to make laws with respect to the whole subject of immigration - with respect to each and every element in immigration. "Immigrants" include persons who are intending settlers in a country other than their own and seek to enter (or do enter) that country and to remain in it for the purpose of making a permanent home there, or who, having entered another country without any original intention to settle there, do in fact endeavour to remain in that country as members of the community. Control of immigration involves control of the admission of such persons and determination whether such admission is to be allowed to be permanent or only temporary. Such control is the means of determining the composition of the population of a country in respect of the admission of external elements. Admission of any person not already a member of the community may, under a power to make laws with respect to immigration, be allowed or prevented either completely or partially and subject to conditions as Parliament thinks proper. There could be no effective control of the subject of immigration if it were not possible to limit the entry and stay of persons who claimed that they were only making a short visit, or if it were not possible to deport persons who were allowed into the country only for a specified period and who then changed their minds and wished to remain permanently. Immigration into a country, if completed, involves two elements, (a) entry into the country, and (b) absorption into the community of the country. Both of these elements can be controlled under a power to make laws with respect to immigration."

[37]

The plaintiffs contend that an immigrant who establishes a "permanent home" in Australia is entitled to remain here - at least if his entry was not unlawful. The basis of this contention is that when a person who entered Australia as an immigrant acquires a permanent home in Australia he passes beyond the scope of any law (present or future) made with respect to immigration. The position as to a person who was born in Australia and who has retained his home in Australia is clear. His re-entry upon return after absence is not entry as an immigrant: Potter v. Minahan [2] . The question which arises in the present cases is whether a person who did not have a home in Australia who comes here and, so far as he can do so, establishes his home here and decides to stay here, thereby places himself beyond the application of immigration laws. It appears to me that (though this is denied) the contention must be the same whether the entry of the person into Australia was lawful or unlawful. A person who enters unlawfully can establish a permanent home here just as completely as a person who enters lawfully. Both equally must, according to the proposition which is the basis of the plaintiffs' argument, be regarded as beyond the scope of any law with respect to immigration. A consistent application of the principle for which the plaintiffs contend also means that a law which provides that immigrants who fail to observe conditions which are imposed upon them by law at the time of their entry can be deported could not validly apply to any such immigrants who established permanent homes here - they would no longer be immigrants and, whatever they did or failed to do, would not be subject to any provisions of any law with respect to immigration. Section 5 (1) of the principal Act provides that certain immigrants can at any time be required to pass the dictation test - so that, if they fail upon the test, they can be deported. Upon the argument for the plaintiffs these provisions could not validly be applied in the case of any immigrant who had made his permanent home here.

[83]

The second step taken by Act No. 31 of 1949 was to provide for the validation of a certificate of exemption issued before the Act came into force, that is before 12th July 1949. To this end s. 4 of that Act enacts that the certificate shall be deemed to have been validly issued and the provisions of the Immigration Act 1901-1948 as amended by No. 31 of 1949 shall apply to and in relation to the certificate, as if the certificate had been issued under the Immigration Act 1901-1948 as so amended. It is upon this provision that the orders of deportation made under the Immigration Act depend for their validity. But s. 4 attaches conditions to the operation of the provision and much hangs upon the conditions. Extracted from the section the material conditions attached may be stated thus - (1) a person thereunto empowered by the legislation must have purported to issue a certificate of exemption; (2) he must have purported to do so before 12th July 1949; (3) he must have purported to issue such certificate of exemption to the person named therein; (4) that person must at the time have been a prohibited immigrant or an immigrant who might be required to pass the dictation test; (5) one or other of two additional requirements must be satisfied; viz. either (a) the person named in the certificate must be an immigrant on 12th July 1949, or (b) the certificate must have purported to have been in force at a time within the period of two years immediately preceding 12th July 1949. As I understand it, these two additional requirements are taken to reflect a view that, having regard to the invalidity of the certificates of exemption under the decision in O'Keefe v. Calwell [1] , it might be considered possible for an immigrant, notwithstanding that he held a certificate, so to establish himself in Australia as his home by 12th July 1949 that he could no longer be described as an immigrant for the purposes of the immigration laws. In that contingency s. 4 is not to apply to him unless, according to the tenor of the certificate, either alone or possibly as extended, it was in force during some part of the two years ending 12th July 1949.

[85]

Now the first matter that has arisen on these provisions concerns the possibility of extending the period of a certificate of exemption after it has expired and, further, the possibility of extending the period to a date already past at the date of the extension. In considering whether such an extension is competent, the nature of the exemption as well as its effect must be taken into account. The purpose of the exemption is to except the immigrant from the provisions of the law which exclude him or require his deportation and would expose him to deportation, arrest and perhaps punishment. Its effect is to so except him and also to place him at the end of the period of immunity under an immediate liability, at the discretion of the Minister, to deportation. All this points to something which has a prospective operation. A retrospective certificate can produce only the effect of a remission of past sins. If a certificate has been allowed to expire there is no difficulty in issuing a fresh one for a prospective period. While the fresh one is in force, in the words of sub-s. (1), "the person named in the certificate shall not be subject to any of the provisions of this Act restricting entry into or stay in the Commonwealth." Further to extend a certificate for a retrospective period would operate to advance the date of its expiry, one of the events "upon" which the Minister may proceed to make a deportation order. If the lapse of time after the occurrence of that event affects the power to make a deportation order, a matter which raises a separate question, the result would be to make a retrospective extension a means of reviving a lost power. Finally, as a matter of words, when you speak of "extending a period" you naturally mean that without a break in continuity the termination of the period shall be deferred to another fixed point of time. In my opinion sub-s. (2) of s. 4 does not authorize the extension of a period that has expired to a date already past or at all.

[95]

There is a serious question about so much of s. 4 of Act No. 31 of 1949 as appears to seek to include persons named in a certificate that, according to its purport, has been in force at some time within two years notwithstanding that the person has ceased to be an "immigrant." But otherwise that section and s. 4 of the Immigration Act 1901-1949 are, in my opinion, clearly within the power to make laws with respect to immigration. Sub-section (1) of the latter provision does no more than authorize the authorities to grant a licence to a person who chooses to accept it to enter or remain in Australia notwithstanding that he is an immigrant who otherwise is either prohibited or liable to the dictation test. It is undeniable that that is a law with respect to immigration. Sub-section (2) of s. 4 is not open to any constitutional objection, unless it be on the ground that, contrary to the interpretation I have placed upon the sub-section, it authorized the Minister or his officers to extend the period of a certificate of exemption without the assent and against the will of the person named therein with a view to postponing the date upon which the powers conferred by sub-s. (4) would arise and thus holding its future exercise in reserve. It is sufficient to say that upon the proper interpretation of the sub-section I do not think that it does authorize such a course. But I am by no means satisfied that the provision would be invalid even if it did authorize the authorities to extend the period of a certificate of exemption against the will of the person exempted. No doubt it would be true that, combined with sub-s. (4), sub-s. (2) would then operate to enable the authorities to hold deportation in reserve and by extending the period as often as it expired to do so indefinitely. It is contended that this would mean that if an immigrant, by making his permanent home in Australia and identifying himself with the community, had withdrawn himself from the application of the legislative power with respect to immigration, he would nevertheless fall within the operation which this construction would give to sub-s. (2) and sub-s. (4) in combination. The foundation of this argument is to be found in the views expressed in Ah Sheung v. Lindberg [1] , Potter v. Minahan [2] , and Ex parte Walsh and Johnson; In re Yates [3] , concerning the position of those who belong to the Australian community. It seems to be acknowledged that in so far as a law purports to prevent the entry into the Commonwealth of such a person or to authorize his expulsion, it is not a law with respect to immigration. But there does not appear to be any general agreement as to the tests for the application of this very vague conception. Whatever may be the tests for ascertaining whethe a man belongs to the Australian community, I see no reason for saying that a law which denies to an immigrant liberty to enter or remain in the country unless he obtains a permit is not a law with respect to immigration because it gives to the authorities power to extend the permit from time to time if no limit upon the number or period of the extensions is imposed. It is a law with respect to immigration because it takes the immigrant before he has settled in the country and provides that he shall enter or remain conditionally. The condition it imposes is in effect that he shall go out when the authorities withdraw their consent to his remaining. Sub-section (4) of s. 4 is not in my opinion invalid. If it left the person named in an expired or cancelled certificate of exemption liable for the rest of his life to expulsion it might perhaps conflict with the principle for which reliance is placed upon the decisions mentioned, the principle that the immigration power will not support a law for the deportation of persons who have settled in Australia so as to have become members of the Australian community. But sub-section (4) of s. 4 does not leave a person mentioned in an expired or cancelled certificate liable to deportation longer than a reasonable time after the expiry or cancellation of the certificate.

[105]

The state of facts upon which the provision will operate is well known. Numbers of fugitives entered Australia as the Japanese advanced in South-East Asia and the Pacific. They were of course let in wherever they arrived and the situation made this inevitable. They were harboured as refugees and they were fugitives from the enemy who was menacing our shores. The paragraph covers such persons, but it is drawn so as to cover persons who came in at an earlier date as refugees from the Germans and Italians and others who came in at a later date, if any there were, when the Japanese advance had ceased and the tide had turned. The immigration laws were, however, relaxed or abandoned in both cases and the reason was that, because of the character of the conflict, the behaviour of our enemies, our duties to our allies, and the practical exigencies of the war, no other course could be pursued. A situation was thus caused in the course of the war and as part of its conduct which had to be dealt with as policy might dictate at the end of the war, and this we may assume was generally recognized at the time. Litigation before the Court has shown that for some time the Department of Immigration has sought to deal with the situation under the existing laws relating to immigration. Repatriation of many of the refugees was not practicable immediately after hostilities closed, not only because of lack of transport but also because of the state of the countries concerned. The failure later to find in the Immigration Act a sufficient means of dealing with the refugees who remained led to the passing of the Immigration Act 1949 and the War-time Refugees Removal Act 1949. In the meantime a considerable time had elapsed but the delay is explained by the facts I have stated. In these circumstances I think that the inclusion of the persons mentioned in par. (b) of s. 4 (1) of the latter Act is within the defence power. It is a piece of legislation dealing with the present residual form of a situation arising in the course of the war by reason of the exigencies of the war, a situation which has not been earlier dealt with owing for a time to causes directly associated with the war and afterwards owing to a mistaken reliance upon the sufficiency of the existing law. I think this comes within the principles we have attempted to lay down with respect to the use of the defence power in the period after hostilities have closed.

[130]

I shall now proceed to discuss the constitutional validity of the Act and of the sections under challenge. The Act applies to three classes of persons who entered Australia during the period of hostilities, that is between 3rd September 1939 and 2nd September 1945, not being persons excepted by s. 4 (1) (d), (e), (f) or (g). Section 4 has no operative effect in itself. It simply defines the classes of persons all or any of whom may be deported if the Minister at any time within twelve months after the commencement of the Act makes an order for their deportation. They are plainly, I think, three severable classes, so that the invalidity of the Act with respect to any class would not affect its validity with respect to the other classes. In my opinion legislation with respect to persons in class 1 (a), that is to say with respect to every person who entered Australia during the period of hostilities and is an alien at the commencement of the Act other than aliens excepted by pars. (d), (e), (f) and (g), is legislation with respect to aliens and is therefore authorized by s. 51, par. (xix.) of the Constitution. The provisions of ss. 4 (1) (b) and 4 (1) (c) are wide enough to include British subjects. The defendants contend that the Act in its application to these classes is authorized by the defence power, s. 51, par. (vi.) of the Constitution, or alternatively by the immigration power, s. 51, par. (xxvii.) of the Constitution. The defence power is a very wide power during hostilities but contracts rapidly after hostilities have ceased. The inclusion of these classes in the Act could only be justified under the defence power if such legislation fell within the ambit of that power on 12th July 1949. In my opinion this depends upon whether the continued presence in Australia after 12th July 1949 of persons who entered Australia during the period of hostilities could reasonably be considered to be a threat to the safety of Australia in the event of some future war. Class 4 (1) (a) deals with aliens, so that, as I have said, classes 4 (1) (b) and 4 (1) (c) are aimed at British subjects. The persons included in these classes have been allowed to reside here unmolested for nearly four years after hostilities have ceased, and may have acquired a domicile of choice in Australia and severed their connection with any other community. But it is submitted that, in spite of any intervening circumstances, they are still within the range of the defence power simply because they entered Australia during the period of hostilities as a place of refuge by reason of the occupation or threatened occupation of any place by an enemy, or by reason of any other circumstances attributable to the existence of hostilities. Possibly such legislation might have been enacted under the defence power immediately after the conclusion of hostilities, but its initiation four years later could not, in my opinion, be justified as an exercise of the defence power. Further, I am of opinion, for reasons which I shall state later, that such legislation could not be justified as an exercise of the immigration power since the classes defined in ss. 4 (1) (b) and 4 (1) (c) could include persons who were beyond the reach of this power on 12th July 1949. I am therefore of opinion that the War-time Refugees Removal Act is only valid in its application to the class defined in s. 4 (1) (a) of the Act.

[131]

Section 3 of the War-time Refugees Removal Act provides that a deportee means a person for whose deportation the Minister has made an order under the Act. Section 5 provides that the Minister may, at any time within twelve months after the commencement of this Act, make an order for the deportation of a person to whom this Act applies and that person shall be deported in accordance with this Act. This section imposes a duty on the Minister to see that a person for whose deportation the Minister has made an order shall be deported in accordance with the Act. The words "in accordance with the Act" refer to the sections of the Act which follow. Section 7 (1) (a) provides that a deportee may, pending his deportation and until he is placed on board a vessel for deportation from Australia, be kept in such custody as the Minister or an officer directs. The Act does not provide that a deportee shall be deported from Australia within a specified period. It was submitted that under this provision a deportee could be kept in custody indefinitely and never deported, so that it is not a law with respect to the deportation of aliens at all but a law which in substance and effect authorizes the indefinite incarceration of the members of a certain class of persons. But a deportee may only be kept in custody pending his deportation and until he is placed on board a vessel for deportation from Australia, so that, if it appeared that a deportee was being kept in custody not with a view to his deportation but simply with a view to his imprisonment for an indefinite period, the custody would be illegal. This fact might be difficult to prove but the omission to fix a period within which the deportee must be placed on board a vessel for deportation from Australia is not sufficient, in my opinion, to prevent s. 7 (1) (a) being a law with respect to aliens. It would obviously be difficult to fix such a period. Each case must depend on its own facts. A court is loath to see any person committed to gaol without trial, and would be on the alert to see that the power conferred on the Minister or an officer to keep a deportee in custody pending deportation was used for that purpose and no other purpose. Section 7 (1) (a) is, in my opinion, a valid exercise of the power conferred on the Commonwealth Parliament by s. 51, par. (xix.) or alternatively by s. 51, par. (xxxix.) of the Constitution.

[132]

I pass now to the questions asked in the Sydney actions as varied and added to during the argument. These questions are as follows: (1) whether the Immigration Act 1901-1949, or alternatively s. 4 or alternatively sub-s. 4 thereof, is beyond the powers of the Commonwealth Parliament and invalid. But no argument was, and I should think that no argument could be, submitted that the whole of this Act is invalid. The real attack was made on s. 4. This section has been amended since O'Keefe v. Calwell [1] , by s. 3 of the Immigration Act 1949. Sub-section (1) now provides that "The Minister or an authorized officer may issue a certificate of exemption in the prescribed form authorizing the person named in the certificate (being a prohibited immigrant or an immigrant who may be required to pass the dictation test) to enter or remain in the Commonwealth, and the person named in the certificate shall not, while the certificate is in force, be subject to any of the provisions of this Act restricting entry into or stay in the Commonwealth." Sub-sections (2) and (3) are the same as before. Sub-section (4) now provides that "Upon the expiration or cancellation of any such certificate, the Minister may declare the person named in the certificate to be a prohibited immigrant and that person may thereupon be deported from the Commonwealth in pursuance of an order of the Minister." Sub-sections (5) and (6) are the same as before. Mr. Barwick relied upon the decision of the Supreme Court of New South Wales in Ex parte Lesiputty; Re Murphy [2] , to found an argument that the word "upon" in s. 4 (4) in its context means "after," so that sub-s. (4) enables the Minister at any length of time after the expiration or cancellation of a certificate to declare a person to be a prohibited immigrant and order his deportation from the Commonwealth. The result would be that a person to whom a certificate of exemption was once issued would be a person who upon its expiration would remain for all time liable to be declared a prohibited immigrant and deported from the Commonwealth. I agree with Mr. Barwick that if this is the true construction of sub-s. (4), it is not legislation authorized by s. 51, par. (xxvii.) of the Constitution. The immigration power is not, in my opinion, a power which authorizes the Commonwealth Parliament to legislate on the basis that because a person is once an immigrant he is always an immigrant in the sense that he remains forever subject to the power.

[134]

I regard Ex parte Walsh and Johnson; In re Yates [1] , as a definite decision of this Court that the immigration power does not authorize Parliament to legislate with respect to persons who originally immigrated to Australia but have since become members of the Australian community. Knox C.J. [2] , said: "If the question be whether he is entitled to remain in Australia, or, stated otherwise, whether he may be lawfully expelled from Australia under a law made under the authority of this power (that is the immigration power) and of this power only, the question for decision is whether he is, at the time when it is sought to expel him, a person who is not a member of the Australian community and who is therefore subject to the immigration power." Higgins J. [3] , said: "If this view is right - if this is not a law with respect to immigration at all, but a law for the deportation of residents who have been immigrants - sec. 8AA cannot be valid by virtue of the power conferred by sec. 51 (xxvii.)." Starke J. [4] , said: "Now here, I think, is foreshadowed a clear principle, namely that those who "originally associated themselves together to form" the Commonwealth and those who are "afterwards admitted to membership" cannot thereafter, upon entering, or crossing the boundary of Australia, from abroad, be regarded as immigrating into it unless in the meantime they have in fact abandoned their membership. They have never been within, or else have passed beyond, the range of the power: it has never operated, or else has become exhausted. Of course, conditions may be attached to persons immigrating into Australia, upon entry, and so long as they remain within the range of the power. But the undoubted power of Parliament to pass retroactive laws was pressed upon us. It may, no doubt, provide that immigration laws shall operate from a time past, but how can it make them operate over persons who are beyond the range of the power before the retroactive law is made? The law is not then, in my opinion, a law with respect to immigration, but a law for bringing again within the field of immigration persons who have passed, and were allowed by law to pass, beyond its borders."

[140]

Section 4 (1) of the Immigration Act 1901-1949 authorizes the Minister or an authorized officer to issue a certificate of exemption authorizing the person named in the certificate (being a prohibited immigrant or an immigrant who may be required to pass the dictation test) to enter or remain in the Commonwealth. The person named in the certificate whilst it is in force is not subject to any of the provisions of the Act relating to entry into or stay in the Commonwealth. I can see no reason why an immigration law should not provide that a person who applies for and accepts such a certificate should during its currency either original or extended remain an immigrant. But I do not see how such a law could provide that after its expiration he should be kept indefinitely in a different position to any other immigrant with respect to the right to become a member of the Australian community, and thereby progress beyond the reach of the immigration power. Accordingly I agree with Mr. Barwick that if s. 4 (4) means that just because a person has been issued with a certificate of exemption the Minister may at any length of time after its expiration declare him to be a prohibited immigrant and order that he be deported from the Commonwealth, the section could apply to persons who had become members of the Australian community between the date of the expiration of the certificate and the date of the declaration and that such a law would be beyond the immigration power. I agree with the Supreme Court in Lesiputty's Case [1] that "upon" means "after" but it does not, in my opinion, mean an indefinite time afterwards but within a reasonable time afterwards: Folkhard v. Metropolitan Railway Co. [2] . The Minister may make the declaration upon either the expiration or cancellation of the certificate. Presumably a certificate would not be cancelled except for good cause and with a view to a declaration being made. I think that the sub-section means that the declaration must be made immediately or within a reasonable time after the expiration or cancellation of the certificate.

[143]

But the word "issue" in s. 4 connotes to my mind that the Act intends that the certificate is to be a document which is delivered to a person. It is a document which a person is to possess. Section 16 of the principal Act provides that the Governor General may make regulations, not inconsistent with the Act for, inter alia, imposing and regulating charges for certificates granted under this Act or the regulations and prescribing the forms of certificates to be granted under this Act or the regulations. The Act therefore contemplates that a certificate will be a document for which a charge may be made. A person who is to be charged for a document is usually a person who applies for and is entitled to delivery of the document upon payment of the charge. Regulation 39 of the Immigration Regulations (S.R. 1932 No. 103) provided that the certificate of exemption referred to in s. 4 of the Act might be in accordance with form D. The form of certificate in these regulations had a note that it must be retained by the person to whom it is issued while he or she remains in Australia, but must be returned to the Customs authorities at the expiration of the stated period of exemption or on the holder's departure from the Commonwealth. Regulation 39 was amended by S.R. 1940 No. 144. The following sub-regulation was added to it: "(2) Every person to whom a certificate of exemption is issued shall retain such certificate while he remains in the Commonwealth, but shall return it to an officer forthwith when it expires or is cancelled or immediately prior to his departure from the Commonwealth whichever is the earliest." Form D in the earlier regulations was omitted and a new form inserted in its stead. The new form requires that reg. 39 (2) shall be printed on the back. The regulations therefore require that a person shall retain the certificate in his possession and shall return it to an officer forthwith when it expires. Unless a certificate which is extended is returned to the applicant, he would not be able to retain it or return it on its expiry. For these reasons I am of opinion that the certificates of exemption referred to in s. 4 of the principal Act are certificates which have been applied for and delivered to persons who have applied for them, and that the extensions of certificates referred to in the section are extensions which have been applied for by the holders of certificates and which have been noted on the certificates and returned to the holders.