O'Keefe v Calwell

High Court of Australia|1949-07-01|Before: Webb JJ

For the reasons I have given I think that the plaintiff falls within the intended operation of s. 4.

It is now necessary to turn to the constitutional power of the Commonwealth and consider whether such an operation in relation to the plaintiff is valid.

It was suggested that sub-s. (4) of s. 4 and perhaps sub-s. (5) amounted to an invasion of the judicial power which can only be conferred under Ch. III. of the Constitution. The basis of the suggestion is an interpretation of sub-s. (4) which I think is mistaken. The sub-section does not as was assumed contemplate a finding by the Minister that the party in fact fell within one or other of the categories of prohibited immigrant formulated by other sections of the Act. It is concerned only with the grant of a certificate of exemption to persons falling under the description contained in s. 4 (1) and with its expiration or cancellation. On none of these matters is the Minister's declaration conclusive. Indeed his authority to make a declaration that the party is a prohibited immigrant depends on the existence of those facts.

But the ground upon which most reliance was placed was that owing to the circumstances in which the plaintiff came to Australia s. 4 could not validly apply to her. It was also maintained that if at some time during her history, that is on her arrival in Australia or during her residence here, she may have been amenable to the provision, she had now passed into the Australian community and was no longer subject to s. 4.

Without the guidance of decided cases I should have regarded the legislative power with respect to immigration contained in s. 51 (xxvii.) of the Constitution as ample justification for s. 4 in its application to such a case as that of the plaintiff. Its valid operation upon her does not appear to me to depend upon the question whether the manner of her entry and the reasons for her continued presence here warrant the application to her of the word immigrant. The purpose of s. 4 is to provide a means of ensuring that persons who come here ostensibly or actually for a temporary stay do not make Australia their permanent home. Whether or not a person who comes here for a temporary purpose may be said to have done anything which comes within some allowable meaning of the word "immigration" itself, it must, as I think, be within the power with respect to immigration to take measures to see that he does not remain here. It is a constitutional power carrying with it everything necessary or proper for the fulfilment of its purpose and it must be incidental to the power to provide for the admission of strangers on terms that they leave after a specified period and do not so to speak turn themselves into settlers. In the same way similar terms may be imposed on those whose entry has been allowed designedly or inadvertently but who have not any title to stay. We are not here concerned with persons who belong to the Australian community and who re-enter Australia after an absence.

Once the plaintiff came under s. 4 and received an exemption certificate no attempt on her part to make Australia her permanent home could prevent the operation of the provision. The legislation adopts the machinery of an exemption certificate to prevent persons entering or remaining except by consent and then so long only as the consent continues. If that is within the legislative power with respect to immigration, as I think it is, it is difficult to understand how a person holding an exemption could by nevertheless resolving to make Australia her permanent home and by identifying herself with this country pass from the operation the Constitution allows to the provision. Had she become by lapse of time and long continued acceptance a member of the community before receiving her exemption it might have been otherwise. However, those are not the facts. But a construction has been given to the constitutional power with respect to immigration by a series of cases. After what was said about the power and the Act by Cussen J. in Ah Sheung v. Lindberg [1] and by this Court in Chia Gee v. Martin [2] , Potter v. Minahan [3] and R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly [4] , it seems impossible to do other than treat the power over immigration as relating to all movement of strangers into the Commonwealth independently of the intention of the persons who enter. So long as the new arrival is a stranger and not one of the people of Australia the legislature may deal with the question whether he enters and on what terms he enters or remains. See particularly per Starke J. in R. v. Macfarlane [5] . The Act is construed accordingly. See per McMillan J. in Mann v. Ah On [6] . The chief point of distinction relied upon for the plaintiff was that when the plaintiff reached Australia she came involuntarily. She exercised no choice but was brought by a naval vessel as an evacuee from a scene of Japanese invasion. It is no doubt a distinction in fact. But I cannot see how it takes the case outside the principle. If the principle is that the intention of the person entering is irrelevant, it cannot matter that the plaintiff had no intention except to do what she was told and to escape from the Japanese. If the principle is that it is incidental to the immigration power to control the entry and presence in Australia of all strangers lest they settle here, then the circumstances of the entry and the intention or want of intention of the visitor are equally irrelevant.

(1906) V.L.R. 323. 2. (1905) 3 C.L.R. 649. 3. (1908) 7 C.L.R. 277. 4. (1923) 32 C.L.R. 518. 5. (1923) 32 C.L.R., at p. 580. 6. (1905) 7 W.A.L.R. 182.

In my opinion the objection that s. 4 is constitutionally incapable of operating with reference to the plaintiff fails. The suit should be dismissed.

I am of the opinion that the declaration that the plaintiff is a prohibited immigrant and the notice to leave the Commonwealth which has been given to her are both void. This declaration and notice depend upon the certificate of exemption issued to the plaintiff. I am of the opinion that the plaintiff was not a person to whom it was lawful under s. 4 of the Immigration Act 1901-1940 to issue the certificate, and it is a nullity. It follows that neither the declaration nor the notice can stand. Section 4 provides that a certificate of exemption may be issued to a person who "is liable to be prohibited under this Act from entering or remaining in the Commonwealth." The person is described by reference to the liability which he may suffer unless a certificate is issued to him: if he has not the certificate he may suffer the casualty of being prohibited from entering or remaining in Australia. I think that to say that a person is liable to be prohibited under the Act from entering or remaining in Australia is equivalent to saying that the person is in the class which s. 3 calls "prohibited immigrants." This section provides that the "immigration into the Commonwealth of the persons described in "pars. (a) to (gh) inclusive" is prohibited." This prohibition means that those persons are prohibited from entering or remaining in the Commonwealth. After defining the classes of persons whom s. 3 calls prohibited immigrants, the section goes on to say: "But the following are excepted: - (h) Any person possessed of a certificate of exemption as prescribed in force for the time being." Section 4 provides for the issue of such a certificate. The section gives power to the Minister to make the exceptions for which s. 3 (h) provides. The subjects of such exceptions or exemptions are persons who would otherwise be prohibited immigrants: not persons outside the classes described as prohibited immigrants but exposed to the risk of being brought within one of such classes. The words which I have quoted from s. 4 may be read as meaning a person answerable in law or subject to the liability of being prohibited from entering or remaining in the Commonwealth or a person who is exposed to or may suffer the application to him of some test or condition in the Act which if not satisfied by him would result in his falling within the description of a prohibited immigrant. This ambiguity is resolved by referring to s. 3 (h) and reading it with s. 4 (1). The plaintiff was never within any one of the categories of persons described as prohibited immigrants. The provision of s. 3, which says: "But the following are excepted: (h) Any person possessed of a certificate of exemption as prescribed in force for the time being," has no application to the plaintiff. She was not a prohibited immigrant, because she did not come within any of the paragraphs from (a) to (gh) of s. 3. It should be added that no certificate has been prescribed under s. 3 (b). There was therefore no need, and in my opinion, no lawful authority to issue to her a certificate of exemption. It is otiose to exempt a person from a prohibition to which he is not subject or to except him from a category to which he does not belong. Section 4 (4) provides that upon the expiration or cancellation of such certificate, the person named therein may, if found within the Commonwealth, be declared by the Minister to be a prohibited immigrant. It is not to be presumed, in the absence of clear words, that Parliament gave the Minister power to declare persons to be prohibited immigrants who are not within any of the extensive categories which are contained in s. 3. This consideration lends support to the view that s. 4 confers power to give a certificate of exemption to a person who, if not possessed of the certificate, would be a prohibited immigrant. I think that the words "a person who is liable to be prohibited under the Act from entering or remaining in the Commonwealth" are a description of a person who is really a prohibited immigrant. Section 4 applies to a person who is a prohibited immigrant and a fit subject for a certificate of exemption, not to a person who is not yet in that condition. The plaintiff would have been within s. 4 if, for example, a dictation test had been duly given to her and she failed to pass it: or if some other provision of s. 3 had been lawfully brought into play to deal with her and her entry or stay in Australia thereby became obnoxious to the Act.

I entertain no doubt that the "immigration power" of the Commonwealth would extend to the making of a law to expel the plaintiff from this country.

I base my conclusion in the present case upon the view that the plaintiff was not a person to whom a certificate of exemption could be lawfully issued. It follows that the administrative action which has been taken to exclude her from the Commonwealth lacks any legal foundation. She is entitled to a declaration to that effect, and an injunction protecting her against deportation pursuant to the departmental notice of 10th February 1949.

The plaintiff has received a notice in writing, purporting to be given under the provisions of s. 4 (4) of the Immigration Act 1901-1940, directing her to leave the Commonwealth within the period ending on 23rd February 1949, and the purpose of this action is to impeach the validity of the notice and to obtain an injunction restraining the defendant A. A. Calwell the Minister of State for Immigration from making an order under s. 4 (5) of the Act that she be deported from the Commonwealth. There is ample evidence that unless restrained by such an injunction the defendant Minister intends to proceed with her deportation.

The Immigration Act 1901-1940 has been amended by the Immigration Act No. 86 of 1948, but the latter Act will not come into force until it is proclaimed and no proclamation has been made. Other Acts were mentioned in the course of the argument, particularly the Nationality and Citizenship Act 1948, which came into force on 26th January 1949, but in the end it was, I think, common ground, and it certainly appeared to me, that the only relevant Act was the Immigration Act 1901-1940 (hereinafter called the Act).

The plaintiff with her first husband, both of whom were then Dutch subjects, and seven of their eight children, first entered the Commonwealth on 18th September 1942 by disembarking from an Australian warship at Darwin. They had been evacuated by this ship, together with about forty Dutch soldiers, from one of the islands of the Netherlands East Indies to save them from capture by the Japanese. The plaintiff and her family subsequently proceeded to Melbourne where they have since lived. She was registered as an alien under the National Security (Aliens Control) Regulations on 28th October 1942. These regulations were continued in force by the Defence (Transitional Provisions) Act 1946 until 31st December 1947 but were discontinued from that date by the Defence (Transitional Provisions) Act 1947. In August 1943 a ninth child of the marriage was born in Melbourne. On 7th September 1944 the plaintiff's husband was killed when a Dutch transport plane crashed on a flight to Cairns.

On 16th January 1947 a certificate of exemption under s. 4 of the Act was issued to the plaintiff. It was for a period of three months from 10th January 1947. This period was subsequently extended until 31st December 1947, and later until 31st December 1948. On 14th June 1947 the plaintiff was married in Melbourne to her present husband, an Australian named John William O'Keefe. She thereby became a British subject under the Nationality Act 1920-1946, s. 18. The plaintiff applied for but was refused a further period of exemption beyond 31st December 1948. On 9th February 1949 the defendant Minister made a declaration that the plaintiff was a prohibited immigrant and directed that she be required by notice in writing given by an authorized officer to leave the Commonwealth within the period specified in such notice. The next day the defendant A. H. Priest, an authorized officer, gave the plaintiff notice in writing requiring her to leave the Commonwealth within the period already mentioned.

The first question that arises is whether the intended deportation of the plaintiff is authorized by the provisions of the Act. If this question is answered in favour of the plaintiff, that is to say in the negative, it will be unnecessary to discuss the other contentions raised by her counsel. The defendants contend that the deportation of the plaintiff is authorized by s. 4 (4) and (5) of the Act. Section 4 (4) provides that upon the expiration or cancellation of a certificate of exemption, the person named therein may, if found within the Commonwealth, be declared by the Minister to be a prohibited immigrant, and may thereupon be required by notice in writing given by an authorized officer, in accordance with the directions of the Minister, to leave the Commonwealth within the period to be specified in the notice. Section 4 (5) provides that if the person fails to leave the Commonwealth within this period, he may be deported from the Commonwealth pursuant to an order of the Minister. Section 4 (1) provides that a person to whom the Minister or an authorized officer is authorized to issue a certificate of exemption is any person who, unless he possesses such a certificate, is liable to be prohibited under the Act from entering or remaining in the Commonwealth. As these are the only persons to whom certificates of exemption may lawfully be issued under the section, it appears to me necessarily to follow that they must also be the only persons whom the Minister can lawfully declare to be prohibited immigrants upon the expiration or cancellation of the certificate and require them to leave the Commonwealth.

It is therefore crucial to determine what is meant by the expression in s. 4 (1) "any person who, unless he possesses such a certificate, is liable to be prohibited under this Act from entering or remaining in the Commonwealth," and in particular what is meant by the word "liable" in this expression. The Act contains provisions prohibiting immigrants entering the Commonwealth and provisions prohibiting immigrants who have entered the Commonwealth from remaining in the Commonwealth. Some of the latter provisions relate to immigrants who have entered the Commonwealth by evading an officer or at some place where no officer is stationed or by means of forged permits or passports or other dishonest conduct. Section 5 (1) provides that such an immigrant may, if at any time thereafter he is found within the Commonwealth, be required to pass the dictation test and shall, if he fails to do so, be deemed to be a prohibited immigrant offending against the Act. The plaintiff is not an immigrant who falls within these provisions. She entered the Commonwealth openly and whilst under the control of the Naval authorities of the Commonwealth. The sections which may throw light upon the meaning of the expression under discussion include ss. 3, 4 (6), 5 (2), 7 and 17.

The opening words of s. 3 are that the immigration into the Commonwealth of the persons described in any of the following paragraphs of this section (hereinafter called prohibited immigrants) is prohibited. Prima facie the words of a statute must be given their ordinary natural grammatical meaning, and the ordinary meaning of immigration into the Commonwealth is entry into the Commonwealth as an immigrant.

The section contains fifteen paragraphs denoted by the letters (a) to (gh) defining persons whose immigration into the Commonwealth is prohibited. In my opinion at least pars. (a), (b), (ge), (gf) and (gh) apply to the time when an immigrant is seeking to be admitted into the Commonwealth. The definitions contained in pars. (c) to (gd) describe the personal characteristics of immigrants which cause them to be persons whose immigration into the Commonwealth is prohibited. It may be that these characteristics cause such immigrants to continue to be prohibited immigrants after entry into the Commonwealth but there is no evidence that the plaintiff is a prohibited immigrant on any of these grounds. These prohibitions are, as counsel for the plaintiff said, of a subjective character. A person who possesses such characteristics is a prohibited immigrant on personal grounds. On the other hand pars. (a), (b), (ge), (gf) and (gh) are of an objective character and define events upon the happening of which a person, who is not a prohibited immigrant on personal grounds, becomes a prohibited immigrant.

An immigrant only becomes a prohibited immigrant under s. 3 (a) if he is given a dictation test and fails to pass it. It was contended by counsel for the defendants that under this paragraph an immigrant, whilst he still remained an immigrant and had not become a member of the Australian community, could be given a dictation test at any time even after an officer had allowed him to enter the Commonwealth without a test. But this construction overlooks the presence in the Act of s. 5 (2) which provides that any immigrant may at any time within five years after he has entered the Commonwealth be required to pass the dictation test, and shall, if he fails to do so, be deemed to be a prohibited immigrant offending against this Act. If an immigrant who has been admitted to the Commonwealth could subsequently be required to pass a dictation test under s. 3 (a), s. 5 (2) would be unnecessary, and the limited period which s. 5 (2) prescribes would be inconsistent with the unlimited operation of s. 3 (a). To provide some limit of time counsel for the defendants sought to imply in both provisions a limitation to the period prior to an immigrant becoming a member of the Australian community. It is within the constitutional powers of the Commonwealth Parliament under the immigration power, s. 51, pl. (xxvii.), to fix a reasonable period of probation during which immigran's who have been admitted into Australia should continue to be subject to the risk of becoming prohibited immigrants and not be allowed to acquire the rights and privileges and immunity from deportation of members of the Australian community: R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly [1] . The period of five years fixed by s. 5 (2) and other provisions of the Act after an immigrant has been admitted into the Commonwealth as a period of probation could not be said to be unreasonable, and the Commonwealth Parliament could therefore lawfully enact that immigrants might be required to pass the dictation test not only under s. 3 (a) prior to being admitted to the Commonwealth, but under s. 5 (2) at any time during the subsequent period of five years. But I can find no justification for placing such an implied limitation on the operation of either section and particularly upon s. 5 (2) which contains an express limitation. In my opinion therefore s. 3 (a) applies to the time when the immigrant is seeking to be admitted into the Commonwealth and not subsequently, and the right to require an immigrant to pass a dictation test after admission depends solely upon s. 5 (2).

I am also of opinion that an alien only becomes a prohibited immigrant under par. (ge) if an officer makes the demand authorized by the paragraph and he fails to satisfy the officer upon the matters therein mentioned, and that a person only becomes a prohibited immigrant under par. (gf) if an officer makes the demand authorized by the paragraph and he fails to prove that he is the holder of the prescribed permit. Accordingly if an officer admits an immigrant into the Commonwealth without requiring him to pass a dictation test, or without making the demands authorized by pars. (ge) and (gf), the immigrant is no longer an immigrant whose entry into the Commonwealth can be prohibited under these paragraphs. There is no evidence that any of the events happened which could cause the plaintiff to become a prohibited immigrant under these paragraphs. The remaining paragraphs are pars. (b) and (gh). The plaintiff did not become a prohibited immigrant under these paragraphs because no certificate of health had been prescribed and the plaintiff had not been declared by the Minister undesirable as an inhabitant of or visitor to the Commonwealth before she entered the Commonwealth. It appears to me that the requirements of s. 17 and in particular, in regard to s. 3 (a), the requirement that the return should show the number of persons admitted to the Commonwealth without being asked to pass the dictation test support the view that at least the operation of the objective paragraphs of s. 3 is limited to the time the immigrant is seeking to enter the Commonwealth.

The plaintiff is not therefore an immigrant whose immigration into the Commonwealth was prohibited on any of the grounds mentioned in s. 3. Accordingly she could only become a prohibited immigrant under the provisions of the Act applicable to an immigrant who has been allowed to enter the Commonwealth. There is no evidence that the plaintiff falls within the provisions of s. 5 (1) or s. 8A, so that the only provisions of the Act that could convert the plaintiff into a prohibited immigrant are the provisions of s. 5 (2). There is no evidence that the plaintiff has ever been required to pass a dictation test under this sub-section, so that she was not on 16th January 1947 on any ground a prohibited immigrant or a person deemed to be a prohibited immigrant offending against the provisions of the Act. But she was still exposed to the risk that she might be required to pass this test and fail to do so, and the question is whether this exposure made her a person who was liable to be prohibited from remaining in the Commonwealth within the meaning of s. 4 (1). The ordinary natural grammatical meaning of a person being liable to some penalty or prohibition is that the event has occurred which will enable the penalty or prohibition to be enforced, but that it still lies within the discretion of some authorized person to decide whether or not to proceed with the enforcement. Cf. James v. Young [1] ; In re Loftus-Otway; Otway v. Otway [2] . The word "liable" is sometimes used in the sense of exposure to liability, but this is not the ordinary natural grammatical meaning of the word. It would require a context to give the word this meaning.

It was contended by counsel for the defendants that, at least in relation to the first limb of the expression "liable to be prohibited from entering the Commonwealth," the context did require this meaning and that "liable" should be given the same meaning in both limbs. For the reasons already given, in January 1947 the plaintiff was no longer exposed to the risk of becoming a prohibited immigrant under s. 3. But I agree that if "liable" in relation to liability to be prohibited from entering the Commonwealth means exposed to liability, this would tend to show that "liable" in relation to liability to be prohibited from remaining in the Commonwealth has the same meaning, although it is not unknown for a word to have different meanings in different sections of an Act or even in the same section: Halsbury's Laws of England, 2nd ed., vol. 31, p. 482. But in my opinion there is no sufficient context to indicate that "liable" in either limb of the expression has the wider meaning. The context seems to tend to the contrary. There is, for instance, s. 4 (6) which provides that where a person enters the Commonwealth from any vessel in pursuance of the section a penalty shall not attach to the vessel or its master, owners, agents or charterers in respect of such entry. The master, owners, agents or charterers of a vessel could only be prosecuted under s. 9 where a prohibited immigrant entered the Commonwealth from the vessel such as an immigrant who had been required to pass a dictation test and had failed to do so or had failed to produce a landing permit or a passport upon demand by an officer. The vessel, its master, owners or charterers would therefore only require to be protected by a certificate of exemption from the entry into the Commonwealth of such a person and not from the entry into the Commonwealth of a person who had not been required to pass a dictation test or to produce a landing permit or passport. There is also s. 7 which provides that every immigrant entering the Commonwealth in contravention or evasion of the Act and every person who, by virtue of the Act, is deemed to be a prohibited immigrant offending against the Act (for instance, a person who is required to pass a dictation test under s. 5 (2) and fails to do so) shall be liable upon summary conviction to imprisonment for not more than six months and shall be liable pursuant to any order of the Minister to be deported from the Commonwealth. There can be no doubt that in s. 7 "liable" means liable as a person who is a prohibited immigrant or a person who is deemed to be a prohibited immigrant offending against the Act, and I can see no reason why "liable" in this section should have a different meaning to liable in s. 4 (1). The words used in s. 4 are "is liable" and not "would be liable" and the use of the present tense points strongly to an actual accrued liability. A person does not require a certificate of exemption unless he is a prohibited immigrant or person deemed to be a prohibited immigrant offending against the provisions of the Act and this indicates that the word "liable" in the expression is used in its ordinary natural grammatical sense and refers to a person who is, at the time he applies for a certificate, a prohibited immigrant or deemed to be a prohibited immigrant offending against the provisions of the Act and as such liable to be prohibited from entering or remaining in the Commonwealth without a certificate.

I am of opinion that under s. 4 (1) the Minister can only lawfully declare a person to be a prohibited immigrant if he is made or deemed to be a prohibited immigrant by the express definitions of the Act, and if, as here, he declares a person to be a prohibited immigrant who is not so defined and attempts to deport him, the legality of the Minister's action can be challenged in the courts. In January 1947 the plaintiff was not such a person. Accordingly she was not a person to whom the Minister or an authorized officer was empowered to issue a certificate of exemption by s. 4 of the Act. The certificate was therefore a nullity, and its expiration could not authorize the defendant Minister to make a declaration that she was a prohibited immigrant and require her to leave the Commonwealth.

For these reasons I am of opinion that there should be judgment in the action for the plaintiff and that an injunction should be granted restraining the defendant Minister from taking any action pursuant to the notice in writing of 10th February 1949 to deport the plaintiff from the Commonwealth.

It was not necessary in order to make the plaintiff subject to the Immigration Act that she should have entered the Commonwealth with the intention of settling here, or even of remaining here for an indefinite time (R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly [1] and Ex parte Walsh and Johnson; In re Yates [2] ). But it was submitted for her that, as she was compelled to come here to escape from the Japanese, her entry into the Commonwealth was not immigration within the meaning of s. 3 of the Immigration Act 1901-1940, and that the Act never applied to her. However, although she was compelled by the Japanese to leave her home in North Borneo, she was not unwilling to enter Australia. In my opinion the plaintiff's entry into Australia made her subject to the Immigration Act and she could lawfully have been subjected to the dictation test before the issue to her in January 1947 of the certificate of exemption. At that time she had been four years and three months in the Commonwealth. If she failed to pass the test she would then have been deemed to be a prohibited immigrant offending against the Act, as provided by s. 5 (2). But when the certificate was issued the plaintiff was not a prohibited immigrant; nor was she a person who was "liable to be prohibited from remaining in the Commonwealth" within the ordinary meaning of those words, that is to say, she was not absolutely liable although she was contingently so liable in the event of her being subjected to and failing to pass the dictation test. Nor was she prohibited from remaining in the Commonwealth because she entered it without the prescribed certificate of health required by s. 3 (b), as no such certificate has been prescribed. In my opinion s. 3 (b) operates to render immigrants prohibited only as from the time the certificate of health is prescribed. The plaintiff was not a prohibited immigrant under any of the remaining provisions of s. 3 or under any other section of the Immigration Act. I am unable to find in the Act anything which indicates that the ordinary meaning should not be given to the words "is liable" in s. 4 (1).

(1923) 32 C.L.R. 518. 2. (1925) 37 C.L.R. 36.

I think there should be judgment for the plaintiff and an injunction restraining proceedings to deport her.

High Court of Australia Latham C.J. Rich, Dixon, McTiernan, Williams and Webb JJ. O'Keefe v Calwell [1949] HCA 6

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