Pochi v Macphee

Two main questions are raised by the demurrer. The first is whether, in the circumstances alleged in the statement of claim, the Minister had power under s. 12 of the Migration Act to order that the plaintiff be deported from Australia. The second is whether the defendants were bound to give effect to the recommendation of the Administrative Appeals Tribunal that the deportation order in respect of the plaintiff be revoked. The latter question has, however, already been decided adversely to the plaintiff. In Minister for Immigration v. Pochi [1] , the Minister had been granted special leave to appeal to this Court from the decision of the Federal Court dismissing the appeal against the decision of the Administrative Appeals Tribunal recommending the revocation of the deportation order made against the plaintiff. It was held by four of the five members of the Court who heard the matter that the effect of the provisions which empowered the Administrative Appeals Tribunal to review a decision under s. 12 of the Migration Act was that the Minister was not bound, when he reconsidered the matter, to give effect to any recommendations made by the Tribunal; a recommendation of the Tribunal in such a case is not tantamount to a direction, and the Minister is bound only to reconsider the matter in the light of the recommendation. Murphy J., who took a different view, held that the Minister must reconsider in accordance with the recommendation. The fact that the majority considered that the Minister was not bound to adopt the recommendation of the Tribunal was one of the reasons which led the Court to rescind the grant of special leave to appeal. It was submitted on behalf of the plaintiff in the present case that this decision was interlocutory and creates no estoppel. However, the decision is a very recent one and there is no reason to permit the question to be reargued. The submission that the Minister was bound to give effect to the recommendation of the Administrative Appeals Tribunal must accordingly fail.

The provisions of s. 12 of the Migration Act, under which the deportation order was made, are as follows:

Where (whether before or after the commencement of this Part) an alien has been convicted in Australia of a crime of violence against the person or of extorting any money or thing by force or threat, or of an attempt to commit such a crime, or has been convicted in Australia of any other offence for which he has been sentenced to imprisonment for one year or longer, the Minister may, upon the expiration of, or during, any term of imprisonment served or being served by that alien in respect of the crime, order the deportation of that alien. It is obvious that if this section is valid, and if the plaintiff is an alien, the deportation order will be effective. However, in argument it was submitted by counsel for the plaintiff that the section was not a valid provision at the date on which the deportation order was made, and moreover that by that time the plaintiff had ceased to be an alien.

By s. 51(xix) of the Constitution the Parliament has power to make laws for the peace, order and good government of the Commonwealth with respect to "Naturalization and aliens". There is in my opinion no room to doubt that under this power the Parliament can validly enact a law for the deportation of aliens. This was decided in Robtelmes v. Brenan [2] , and since that case it has been regarded as settled law that the Parliament has power to make laws providing for the deportation of aliens for whatever reasons it thinks fit: see Ah Yin v. Christie [3] ; Ferrando v. Pearce [4] ; R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly [5] ; Ex parte Walsh and Johnson; In re Yates [6] ; Koon Wing Lau v. Calwell [7] . One would expect any sovereign legislature to have such a power, which is essential to national security. Power to enact laws for the deportation of persons other than aliens is conferred by other paragraphs of s. 51, particularly pars (vi) and (xxvii), and possibly par. (xxix), but it is unnecessary to invoke those powers in the present case.

1. (1906) 4 C.L.R. 395, at pp. 404, 415, 418-419. 2. (1907) 4 C.L.R. 1428, at p. 1431. 3. (1918) 25 C.L.R. 241, at p. 270. 4. (1923) 32 C.L.R. 518, at p. 577. 5. (1925) 37 C.L.R. 36, at pp. 132-133. 6. (1949) 80 C.L.R. 533.

Counsel for the plaintiff did not assert that the Parliament lacked power to provide for the deportation of aliens. He submitted that s. 12 of the Migration Act is - or rather was at the time when the deportation order was made - invalid because it applies to some classes of persons who are not aliens within the meaning of s. 51(xix) of the Constitution. Section 12 is expressed to apply only to aliens, but "alien" is defined in s. 5(1) of the Migration Act to mean "a person who is not - (a) a British subject; (b) an Irish citizen; or (c) a protected person". To determine the meaning of the expression "British subject" in this definition it is necessary to turn to the provisions of the Australian Citizenship Act 1948 Cth, as amended. Section 51(1) of that Act provides as follows:

A reference in any other law of the Commonwealth to a British subject shall be read as including a reference to an Australian citizen and to any other person who, under this Act, has the status of a British subject or has the status of a British subject without citizenship. By s. 7(1) of that Act it is provided as follows: A person who, under this Act, is an Australian citizen or, by a law for the time being in force in a country to which this section applies, is a citizen of that country has, by virtue of his Australian citizenship or his citizenship of that country, as the case may be, the status of a British subject. Sub-section (2) of s. 7 commences as follows: The countries to which this section applies are the following countries and any other country declared by the sregulations to be a country to which this section applies: - Then follows a list of countries. It is necessary also to refer to s. 26 of that Act, which, so far as is material, provides as follows:

(a) was a British subject immediately before 26th January, 1949; and

(b) was not at that date an Australian citizen, a citizen of a country to which section 7 applies or an Irish citizen,

has the status of a British subject without citizenship.

(5) Subject to the next succeeding sub-section, where a person who, on or after 26th January, 1949, was or is born in a country outside Australia has acquired or acquires the status of a British subject by virtue of the law in force in a country to which section 7 applies but has not or does not, under this Act or the law in force in such a country, become an Australian citizen or a citizen of such a country, that person has the status of a British subject without citizenship.

The argument submitted for the plaintiff was that the Australian Citizenship Act had the effect that at various times (including the date of the deportation order) some persons who were in truth British subjects did not have the status of British subjects under that Act, and were therefore aliens within the meaning of the Migration Act. It was not suggested that the plaintiff was within that class, but it was said that at the date of the deportation order s. 12 of the Migration Act extended to some persons who were not aliens within the meaning of s. 51(xix), that its provisions were incapable of severance, and that it was therefore totally invalid.

To enable this highly technical argument to be understood it is necessary to refer to the manner in which the status of a British subject is acquired under the Australian Citizenship Act. At the time of federation, the status of British subjects was governed mainly by the common law, which applied in both England and the Australian colonies with some immaterial statutory modifications. The rule of the common law was stated by Blackstone in his Commentaries , 8th ed., vol. 1, p. 366, as follows:

Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. (See also Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 599.) It is unnecessary to trace the history of the statutory amendments of the common law before 1948, when laws giving effect to a new concept of the status of a British subject were enacted in the United Kingdom, Australia and other Commonwealth countries. The Australian statute was the Nationality and Citizenship Act 1948 Cth, which took effect on 26 January 1949, and in its amended form has been renamed the Australian Citizenship Act. The English statute was the British Nationality Act 1948 U.K.. The principles to which this legislation gave effect were that the peoples of each of the countries of the Commonwealth should have separate citizenship, but that all citizens of Commonwealth countries should have the common status of British subjects. Section 7 of the Australian Citizenship Act gave effect to this common status, which was, of course, derivative, being dependent on the possession of citizenship. The argument put on behalf of the appellant in the present case depends on the fact that s. 7(2) in its original form did not list all the Commonwealth countries whose citizens became British subjects under the British Nationality Act 1948. The names of various countries were added, either by amendment to the section or by regulation, but the addition of the name of a particular country was usually not made until some time after the citizens of that country had become British subjects under the British Nationality Act 1948 by virtue of their citizenship. During the interval, it was said, the citizens of that country, although British subjects by virtue of their local citizenship, were not British subjects within s. 7, and were therefore aliens within s. 12 of the Migration Act. Two examples may suffice to illustrate this argument. It was said that as from 5 June 1959 the citizens of Singapore became British subjects by virtue of their citizenship of that country, but that no reference to Singapore appeared in s. 7 until 1 December 1959 when that section was amended by the Nationality and Citizenship Act 1959, and that from 5 June 1959 until 1 December 1959 there were therefore persons in Singapore who had the status of British subjects under the law of the United Kingdom, but who did not fall within s. 7. Of course this defect, if it was a defect, had been cured before 7 August 1978 when the deportation order was made against the plaintiff. A more pertinent example is the case of the Solomon Islands. We were told that as from 7 July 1978, when the Solmon Islands became independent, persons who were citizens of the Solomon Islands became citizens of the Solomon Islands and British subjects under the British Nationality Act 1948, but s. 7 has not been amended to refer to the Solomon Islands, and the regulations were not amended to declare that the Solomon Islands is a country to which s. 7 applies until 13 July 1979: see reg. 5a of the Australian Citizenship Regulations, substituted by No. 143 of 1979. Therefore, it was said, at 7 August 1978 citizens of some countries to which s. 7 did not apply were British subjects, but were aliens for the purpose of Australian law. It was pointed out that the provisions of s. 26 of the Australian Citizenship Act did not fill this gap. Sub-section (1) applies only to persons who had acquired the status of British subjects before 26 January 1949, and sub-s. (5) applies only to persons who have acquired the status of a British subject by virtue of a law in force in a country to which s. 7 applies.

This argument proceeds on the assumption that any person who is a British subject under the law of the United Kingdom cannot be an alien within s. 51(xix). That assumption is incorrect. The scope of the legislative power conferred on the Parliament by s. 51(xix) is not determined by the British Nationality Acts of the United Kingdom. In recent times the status of a British subject has lost much of its former significance to Australian citizens. It has ceased to carry with it practical advantages, such as the unrestricted right to enter the United Kingdom or other Commonwealth countries, or the right to a British passport. The allegiance which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia. Now, once the British Nationality Act 1981 U.K. has come into force, the principle that every Commonwealth citizen is a British subject will have finally been abandoned, and the status of British subject will be restricted to a narrow group. If English law governed the question who are aliens within s. 51(xix), almost all Australian citizens, born in Australia, would in future be aliens within that provision. The absurdity of such a result would be manifest. The meaning of "aliens" in the Constitution cannot depend on the law of England. It must depend on the law of Australia. It is true that s. 51(xix) presents some difficulties. Clearly the Parliament cannot, simply by giving its own definition of "alien", expand the power under s. 51(xix) to include persons who could not possibly answer the description of "aliens" in the ordinary understanding of the word. This question was not fully explored in the present case, and it is unnecessary to deal with it. However, the Parliament can in my opinion treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalized as an Australian. The plaintiff's argument is based on a false assumption and must fail.

Even if the words an alien in s. 12 of the Migration Act did include some persons who were not aliens, that would not result in the invalidity of the section. If s. 12 applies to too wide a class, s. 15A of the Acts Interpretation Act 1901 Cth, as amended, requires us to construe the section, if possible, so as to render it valid, i.e., to give it a distributive operation, so that it applies to all the persons within the class to whom it can validly apply. The nature of the subject matter with which s. 12 deals indicates the criterion according to which the section can be read down - it should have an operation limited to persons who are aliens. There is not the slightest indication that the Parliament intended that the section should apply to no aliens if it could not apply to all aliens as defined by the Australian Citizenship Act. If the section is read down in this way, its operation with respect to the aliens to whom it applies will be exactly the same as if it applied to the wider class. The discussion in such cases as R. v. Poole; Ex parte Henry [No. 2] [8] and Pidoto v. Victoria [9] shows that this is a clear case for the application of s. 15A.

1. (1939) 61 C.L.R. 634, at p. 652. 2. (1943) 68 C.L.R. 87, at pp. 110-111.

The next submission made on behalf of the plaintiff was that the plaintiff was not liable to deportation because he had been absorbed into the Australian community. This argument took as its starting point some words of Stephen J. in Salemi v. Mackellar [No. 2] [10] . His Honour, who was there outlining the scheme of the Migration Act, said:

It will be seen that an immigrant (not being an alien or prohibited immigrant) who has resided for more than five years in Australia without conviction for the abovementioned offences becomes immume from deportation. In this sense, by the effluxion of time, he attains a status secure from deportation.

Not so the alien, who, so long as the immigration power reaches him, always remains liable to deportation in accordance with ss. 12 and 14(1).

There is, however, nothing in s. 12 of the Migration Act that affords any support for the view that an alien is liable to deportation only so long as he is reached by the immigration power. The words of Stephen J. may be explained by the fact that he apparently assumed (as it was assumed in Minister for Immigration v. Pochi [11] ) that the power to enact s. 12 was to be found in s. 51(xxvii) of theConstitution. It was not necessary in those cases to give consideration to the source of power to enact s. 12 and the correctness of the assumption was not examined. In truth it will not stand examination. Clearly, for the reasons I have given, s. 51(xix) provides ample power to enact legislation providing for the deportation of aliens. The question whether the immigration power would extend to the case of an immigrant who has become absorbed into the community - a question on which opinions in this Court have in the past been divided - does not arise when the immigrant is an alien. 1. (1977) 137 C.L.R. 396, at p. 430. 2. (1981) 149 C.L.R., at p. 144.

The argument was put in another way by submitting that the fact that the plaintiff has become totally absorbed into the Australian community meant that he is no longer an alien. This argument is impossible to maintain. It was well settled at common law that naturalization could only be achieved by Act of Parliament - even action by the Crown under the prerogative could not give an alien the status of a British subject: Blackstone , op. cit., p. 374; Chitty, Prerogatives of the Crown, pp. 14-15; Holdsworth, History of English Law, vol. IX, p. 76. The common law rules as to alienage were no doubt feudal in origin, but there is nothing antiquated in the notion that a person's nationality is not changed by length of residence or by an intention permanently to remain in a country of which he is not a national. There are strong reasons why the acquisition by an alien of Australian citizenship should be marked by a formal act, and by an acknowledgement of allegiance to the sovereign of Australia. The Australian Citizenship Act validly so provides.

The next submission of the plaintiff seizes upon a few words which are found in a passage from the judgment of the Supreme Court of the United States in Fong Yue Ting v. United States [12] , which was cited with apparent approval in Robtelmes v. Brenan by Griffith C.J. [13] and by Barton J. [14] :

"The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country." It was argued that this meant that there is no right to deport an alien who has taken some steps towards becoming a citizen of the country. There is nothing in principle to support that view and the judgments of the United States Supreme Court inFong Yue Ting v. United States and the decision of this Court in Robtelmes v. Brenan do not support it. 1. (1893) 149 U.S. 698, at p. 707 [37 Law. Ed. 905, at p. 911]. 2. (1906) 4 C.L.R., at p. 403. 3. (1906) 4 C.L.R., at p. 413.

Finally it was argued that if it had not been for the wrongful neglect of an officer of the Commonwealth, the plaintiff would have been notified that his application for the grant of a certificate had been successful, he would have become an Australian citizen, and there would then have been no power to deport him. It was submitted that the deportation order should not be regarded as being within power, because the plaintiff's position had been adversely affected in this way by the neglect of an officer of the Commonwealth. There is no authority to support this argument and there is no substance in it. The power of the Parliament does not depend on the way in which officers of the Commonwealth carry out their duties. Legislative power conferred by the Constitution is not lost by administrative neglect.

The deportation order was valid and the demurrer should be allowed.

I would allow the demurrer for the reasons given by the Chief Justice.

The plaintiff challenges the constitutionality of s. 12 of the Migration Act 1958 Cth under which if an alien is convicted of personal violence or extortion (or an attempt) or any other offence for which he has been sentenced to imprisonment for a year or longer, the Minister may during or upon the expiration of the term of imprisonment, order his deportation. The Minister and the Commonwealth assert that the law is authorized by the Constitution, s. 51, which empowers the Parliament to make laws "for the peace, order, and good government of the Commonwealth with respect to (xix) Naturalization and aliens". The extent of this legislative power is of the utmost importance to the millions of people now living in Australia who came as aliens, most of whom have become naturalized under the Australian Citizenship Act 1948-1973 Cth.

The concept of alien was not fully explored in the presentation of this case, at least not to my satisfaction. The simple concept advanced in argument was that all persons who were born inside the sovereign's dominions are British subjects, and all who were born outside are aliens but the course of argument revealed that this presented certain difficulties. However it is sufficient for this case to accept that (subject to the argument about absorption) the plaintiff who was born in Italy, of Italian parents and has not been naturalized in Australia, is an alien. The concept of alien is applicable to republics; and under our Constitution the status of and the relinquishing of alienage have no necessary relationship to allegiance to a personal sovereign.

The plaintiff's principal argument was that gaps in the coverage of the Australian Citizenship Act meant that s. 12 of the Migration Act was totally invalid because it purported to apply to a few persons who were not aliens. This has no legal merit. Even if the premise were accepted, the conclusion contended for is avoided by the operation of s. 15A of the Acts Interpretation Act 1901 Cth.

The plaintiff's counsel also contended that the plaintiff fell outside the legislative power because he had been absorbed into the Australian community. Mr. Pochi made this country his home and but for the Department's misplacing of papers recommending his naturalization, he would be an Australian citizen. Apart from his lack of citizenship he is in every way an Australian. In Minister for Immigration v. Pochi [15] the majority assumed that the power to enact s. 12 of the Migration Act was the immigration power (Constitution, s. 51(xxvii)). In earlier cases it was held that the power to provide for deportation under the paragraph was exhausted when the person had become absorbed into the Australian community. (See Ex parte Walsh and Johnson; In re Yates [16] ; O'Keefe v. Calwell [17] .) But these cases concerned British subjects, not aliens, and the legislative power over aliens was not relevant. The applicant did not present any persuasive support for the proposition that the doctrine of absorption should be applied to aliens. A further point on administrative neglect to notify the plaintiff that his application for naturalization had been approved, had no legal merit. Whatever the position might be if a certificate had been granted but not issued (see Marbury v. Madison [18] ) no certificate ever came into existence. Section 12 of the Act is presumed valid and the presumption has not been displaced. The challenge fails and the statutory power to deport must be treated as valid.

1. (1981) 149 C.L.R. 139. 2. (1925) 37 C.L.R. 36. 3. (1949) 77 C.L.R. 261. 4. (1803) 1 Cranch 137 [2 Law. Ed. 60].

When the s. 12 conditions (of conviction and sentence) exist, the bare words appear to authorize deportation in any circumstances whatever, that is, arbitrarily. An administrative appeal may result in an order for reconsideration but because of the interpretation given to the legislative scheme by this Court in Pochi's Case, it does not limit the Minister's power. Nevertheless in the absence of unmistakable language to the contrary, every statutory power although not expressly qualified, is subject to unexpressed qualifications. Powers must be exercised not only in good faith and for the purposes for which they are granted, but also with due regard to those affected. (I referred to this in other contexts in Federal Commissioner of Taxation v. Australia and New Zealand Banking Group Ltd. [19] and Forbes v. New South Wales Trotting Club [20] .)

1. (1979) 143 C.L.R. 499, at pp. 544-545. 2. (1979) 143 C.L.R. 242, at pp. 273-276.

In relation to the power to deport, "due regard" must be had not only to the person who may be deported, but also to others who by family relationship or other association may be affected. Due regard means that the power must be exercised not cruelly, but humanely according to the standards of civilized society. Although this qualification is applicable to powers generally, it applies particularly to the deportation powers. Australian laws including those for deportation of aliens are intended to express the standards of a civilized humane society. My view in Sillery v. The Queen [21] was that our legal heritage from the English Revolution of 1688 and the resulting Bill of Rights suggests a limitation on law making which prohibits cruel and unusual punishment. Even if Parliament has power to make laws which authorize cruelty, which may be doubted, all Acts should be construed (at least in the absence of unmistakable language to the contrary) as subject to an unexpressed qualification that the power be exercised humanely according to modern civilized standards.

In Reg. v. MacKellar; Ex parte Ratu [22] , I said that "The Migration Act was an attempt to abolish the procedures under which the deportation laws could be administered arbitrarily and inhumanely. It was primarily aimed at removing the mischief of the existing laws, in particular the much abused dictation test and at ensuring that deportation powers would be exercised not only in the national interest, but in a humanitarian way (with proper regard to the welfare of the persons affected)." Inhumanity towards persons affected by the operation of the previous law was widely recognized as a mischief which the Migration Act was designed to avoid. The Minister for Immigration in proposing the new law informed Parliament that it was the fruit of a long deliberation by the Executive government and a careful examination of the laws of other countries; and was intended to "place Australia in advance of any other country in the world" in its humanitarian and just approach to the individuals concerned. He stressed "the advances in social thinking throughout the world", and the reforms which had taken place. Without doubt one of the reforms to which the Minister referred had occurred the previous year in the United States of America, where amendments to the Immigration and Nationality Act mitigated the power to deport aliens by the humanitarian purpose of preventing the breaking-up of families comprised in part at least of American citizens (see Immigration and Naturalization Service v. Errico [23] ). The Minister treated as an important goal the preservation of families by the reunion of internationally separated families, parts of which were in Australia. He presented the law as one which "imparts justice, tolerance, and humanity in accord with liberal principles in their truest sense" (see Parliamentary Debates, House of Representatives, vol. 19, pp. 1396-1400).

1. (1977) 137 C.L.R. 461, at p. 482. 2. (1966) 385 U.S. 214 [17 Law.Ed. 2d 318].

Breaking-up families is generally regarded as inhumane and uncivilized. It was one of the worst aspects of slavery, and is a horrifying feature of literature about the American slave colonies and States, and the Queensland blackbirding and forced labour of "kanakas" (see Faith Bandler, Wacvie (1977)).

Migrant aliens are treated as persons who, in the normal course, will be naturalized as Australian citizens. By allowing them to live here, the Government encourages other persons to form associations and relationships with them. The Marriage Act 1961 allows aliens to marry in Australia. The children of such a marriage born here are Australian citizens, who grow up here as Australians, speaking our language and forming local friendships and associations; this is their home.

Where, as here, an alien migrant has a family (spouse and children) living with him in Australia, exercising the power so as to break-up the family would be inhumane and uncivilized. The plaintiff's wife and children face the awful dilemma of staying in Australia, so that the family is broken-up, or leaving Australia with Mr. Pochi to live in a foreign country. In Pochi v. Minister for Immigration and Ethnic Affairs [24] Brennan J. said of Mr. Pochi:

it is certain that [his] deportation would destroy or gravely damage a growing Australian family, and that would be a grave detriment not only to them but to Australia. His deportation, separating him from his Australian wife and children or requiring them to accompany him to a country that the children do not know, would be destructive of their prospects in life as well as his I am not persuaded that the applicant's deportation would be in the best interests of Australia. The breaking-up of a family (or forcing the spouse and children to leave their homeland) is incompatible with the way in which "a mature and civilized nation should act" as Deane J. said in Nevistic v. Minister for Immigration and Ethnic Affairs [25] . It disregards "the human aspects of deportation" (see Smithers J., Drake v. Minister for Immigration and Ethnic Affairs [26] ). 1. (1979) 36 F.L.R. 482, at p. 514; 26 A.L.R. 247, at p. 275. 2. (1981) 51 F.L.R. 325, at p. 335; 34 A.L.R. 639, at p. 647. 3. (1979) 46 F.L.R. 409, at pp. 430, 434-435; 24 A.L.R. 577, at pp. 599, 603-604.

In my opinion s. 12 of the Act is valid but does not permit the Minister to order the deportation of the plaintiff in circumstances which would either break-up his family or compel his wife and children, who are Australians, to leave Australia. To do so would be a misuse of the power, a breach of the implied conditions of its exercise. However as the matter was presented, the fate of this demurrer depends only on the validity of s. 12. Therefore the demurrer should be allowed.

I would allow the demurrer, for the reasons given by the Chief Justice.

[The Honourable Mr. Justice Aickin died before judgment was delivered in this case.]