High Court of Australia|1975-12-22

R v Director-General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; (1975) 133 CLR 369 (22 December 1975)

THE QUEEN v. DIRECTOR-GENERAL OF SOCIAL WELFARE (VICT.); Ex parte HENRY [1975] HCA 62; (1975) 133 CLR 369

Barwick C.J.(1), McTiernan(2), Gibbs(3), Stephen(4), Mason(5), Jacobs(6) and Murphy(7) JJ.

CAUSE removed pursuant to s. 40A of the Judiciary Act 1903-1973 (Cth).

BARWICK C.J. The particular facts of this matter appear in the reasons for for habeas corpus should be discharged unless s. 6 of the Immigration (Guardianship of Children) Act 1946-1973 (Cth) ("the Act") is invalid as being beyond the legislative power of the Parliament. (at p371)

"6. The Minister shall be the guardian of the person, and

of the estate in Australia, of every immigrant child who

arrives in Australia after the commencement of this Act to

the exclusion of the father and mother and every other guardian

of the child, and shall have, as guardian, the same

rights, powers, duties, obligations and liabilities as a natural

guardian of the child would have, until the child reaches the

age of twenty-one years or leaves Australia permanently, or

until the provisions of this Act cease to apply to and in relation

to the child, whichever first happens."

By s. 4 of the Act, an "immigrant child" is defined as meaning "a person under the age of twenty-one years who enters Australia as an immigrant, not being a person who enters Australia in the charge of, or for the purpose of living in Australia under the care of, a parent of that person, or a relative of that person not less than twenty-one years of age". (at p372)

3. The only power which is put forward as supporting these provisions is s. 51(xxvii.), "Immigration and emigration". (at p372)

4. The first matter to be resolved is, in my opinion, the true meaning of s. 6 read with the definition of "immigrant child". Clearly the section operates at the point of entry into Australia, the initial step in the process of immigration. Further, the section applies only to a child, in the traditional sense of a person under the age of twenty-one years, who at the point of entry is not in the charge of or under the care of a parent or adult relative. Such a child may well be regarded as in need of guardianship. The section provides that guardianship. With the wisdom or unwisdom of making a Minister of State the guardian of the immigrant child I have no concern, for the choice of the guardian does not affect the validity of the section. The section thus operates upon and because of the situation of the immigrant at the time of entry into Australia. (at p372)

5. The guardianship is expressed to endure until the first to occur of three events: attainment of the age of twenty-one, permanent removal from Australia or the cessation of the application of the Act to the child: "until the provisions of this Act cease to apply to and in relation to the child" is the expression used in the section. (at p372)

6. Section 11 of the Act contains provisions enabling a child to be exempted from the provisions of the Act by order of the Minister. It was submitted that the words of s. 6 which I have quoted refer only to such an exemption. However, notwithstanding the history of ss. 6 and 11, I do not read the third of the above events as a reference exclusively to the exempting provisions. It is implicit in a law made under s. 51(xxvii.) that, in default of express provisions to the contrary, it does not reach to control a person who has entered as an immigrant beyond the time at which that person ceases to be an immigrant, e.g. by absorption into the Australian community as a member thereof. It is thus quite proper to read the words quoted from the provisions of s. 6 as embracing, as well as the operation of the exempting order, any other circumstance upon or by virtue of which the child ceases to be an immigrant. It is evident that a person under the age of twenty-one may not choose to join the Australian community till he or she is twenty-one: or, having intended at an earlier age to join the community, may not effectively do so till attaining the age of twenty-one. Thus, it seems to me that, so read, the section provides only for guardianship during the period the immigrant child remains an immigrant, with, in any case, an upward limit of the attainment of twenty-one years of age. Having concluded that the section, properly construed, does not purport to maintain the guardianship beyond the time during which the immigrant child remains an immigrant, there is no need for me to consider whether the same result might be obtained by restraining the operation of the section by the use of the Acts Interpretation Act. (at p373)

7. Such a law as s. 6, as I construe it, is, in my opinion, clearly a law with respect to immigration. It operates at the time of entry and because of that entry: it operates because of the need of guardianship pending absorption into the Australian community: and continues the guardianship only so long as the child is an immigrant or remains under twenty-one years of age. The sections which have been challenged are, in my opinion, valid. The order nisi should be discharged. (at p373)

McTIERNAN J. I agree for the reasons of Mason and Jacobs JJ. that the order nisi be discharged. (at p373)

GIBBS J. The question that falls directly for decision in the present case is whether s. 6 of the Immigration (Guardianship of Children) Act 1946-1973 (Cth) ("the Act") is a valid law of the Commonwealth. If s. 6 is invalid other provisions of the Act will be also bad. (at p373)

2. The facts of the case and the terms of the relevant sections of the Act appear in other judgments and need not be restated. (at p373)

3. The only power under which s. 6 can validly be enacted is that conferred by s. 51(xxvii.) - the power to make laws with respect to immigration. In Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at p 137 , Starke J. said that "conditions may be attached to persons immigrating into Australia, upon entry, and so long as they remain within the range of the power". In my respectful opinion that is a correct statement. I consider that a person who has immigrated into Australia will pass beyond the range of the power when the act of immigration is at an end - that is when that person has become a full member of the Australian community. It follows, in my opinion, that the Parliament can attach to the entry of an immigrant who is a child the condition that the child have a suitable guardian and can ensure that the guardianship subsists until the child has been fully absorbed into the Australian community, but cannot validly make a law providing for the guardianship of a child who has become a member of the Australian community. (at p374)

4. Section 6 provides that the Minister shall be the guardian of every "immigrant child". The expression "immigrant child" is defined in s. 4 and if that definition is read without restriction it would include a person under twenty-one, notwithstanding that he had lived in Australia for most of his life and had been fully absorbed into the Australian community. Section 6 could not validly apply to such a person. It is provided by s. 6 that the Minister's rights and powers as guardian continue until (inter alia) "the provisions of this Act cease to apply to and in relation to the child". Those words, in my opinion, refer to s. 11 which states that the provisions of the Act "do not apply to or in relation to" a child in respect of whom, or a child who is a member of a class in respect of which, the Minister has made an order under that section. The concluding words of s. 6 do not have the effect that the Minister's powers cease when the child ceases to be an immigrant. (at p374)

5. In Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR, at p 127 , Rich J. said: "An Act of Parliament must always be read as within the Constitution unless its language makes that impossible." That of course is merely a particular application of the general principle that an instrument should, if possible, be construed so as to render it valid rather than to make it void. Conformably with that principle, Knox C.J. and Starke J. in Ex parte Walsh and Johnson; In re Yates construed the section under consideration in that case as not extending to persons who had made their homes in Australia and become part of its people (1925) 37 CLR, at pp 61-62, 138 . In my opinion the provisions in s. 6 also should, if possible, be given a construction that will preserve their validity. This can be done, if necessary with the aid of s. 15A of the Acts Interpretation Act 1901 (Cth), as amended, because the whole tenor of the Act shows that it is intended to refer to immigrants. In my opinion s. 6 on its proper construction does not extend to children who have become a part of the people of Australia, and so construed the section is valid. It is true that it may be difficult in an individual case to determine when the section ceases to apply, but there is no doubt that it applies in the present case where the child is a Vietnamese orphan who has recently entered Australia. (at p375)

6. I should add that when the Act was passed the status of infancy continued until the age of twenty-one. The fact that it has been reduced by legislation to eighteen may provide a good reason for amending the Act but it does not in my opinion result in its invalidity. (at p375)

STEPHEN J. This is the return of an order nisi for habeas corpus, removed to this Court pursuant to s. 40A of the Judiciary Act. (at p375)

2. The applicants, husband and wife, seek custody of a child, a four year old Vietnamese girl named Nguyen Thi Nhung. She is at present, it seems, with temporary foster parents with a view to adoption procedures being undertaken for her adoption by a couple, other than the applicants, approved of by the Commonwealth Director-General of Social Welfare. (at p375)

3. The applicants first established their connexion with the child when they arranged, through an appropriate society, for the transfer of her custody from a Catholic orphanage in South Vietnam to themselves in April 1975. The steps which they took are conceded by the Director-General to have been effective to confer upon them de facto custody of the child; it was as a result of those steps that an exit visa was granted in respect of the child which enabled her to leave South Vietnam and to be transported by the Australian Government to Australia, where she arrived on 18th April 1975. On her arrival she was taken to the Infectious Diseases Hospital at Fairfield where she stayed for some days under the control of the Director-General before being placed with temporary foster parents. (at p375)

4. In answer to the applicant's present application the Director-General points to the guardianship conferred upon the Minister by s. 6 of the Immigration (Guardianship of Children) Act 1946-1973 (Cth) and to the delegation by the Minister to him of powers in relation to this child which the Minister acquires as its guardian. Section 6 reads:

"6. The Minister shall be the guardian of the person, and

of the estate in Australia, of every immigrant child who arrives

in Australia after the commencement of this Act to the

exclusion of the father and mother and every other guardian

of the child, and shall have, as guardian, the same rights,

powers, duties, obligations and liabilities as a natural guardian

of the child would have, until the child reaches the age

of twenty-one years or leaves Australia permanently, or until

the provisions of this Act cease to apply to and in relation to

the child, whichever first happens." (at p376)

5. With this section must be read the definition in s. 4 of the Act of "immigrant child"; it is defined to mean:

"a person under the age of 21 years who enters Australia

as an immigrant, not being a person who enters Australia in

the charge of, or for the purpose of living in Australia under

the care of, a parent of that person, or a relative of that person

not less than 21 years of age".(at p376)

6. The question for this Court is whether these two provisions of the Act, together with certain associated provisions, are valid laws of the Commonwealth or whether, on the contrary, they go beyond the powers conferred by s. 51 of the Constitution. The Solicitor General for the Commonwealth relies, in support of their validity, upon the terms of s. 51(xxvii.), contending that this is a law on the subject matter of immigration. (at p376)

7. Although certain aspects of the extent of the immigration power remain undetermined it is now well established that the concept of immigration extends beyond the actual act of entry into Australia to the process of absorption into the Australian community and that s. 51(xxvii.) confers legislative power in respect of both (Reg. v. Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168 ). A law which is concerned with the guardianship of immigrant children upon their arrival in Australia is clearly within the ambit of that legislative power. As to this I feel no doubt but what has occasioned me some difficulty is not the general subject matter of this legislation and, in particular, of s. 6, but rather the manner in which that subject matter is dealt with. (at p376)

8. To exercise control and supervision over children who arrive in a new land and an unfamiliar environment and who find themselves without parents or adult relatives in Australia appears to me to be very much a part of the aspect of immigration which is concerned with the process of absorption into the Australian community. But the guardianship which s. 6 establishes is not confined to children newly arrived in the country; it persists until they attain the age of twenty-one and may therefore apply to a person who has spent all his school days in this country and who has, on leaving school, become a member of the Australian work force. Such a person, particularly if, for example, a British child encountering no obstacles to absorption such as may be thought to arise from differences in language, cultural background or colour, cannot readily be conceived of as still in the process of absorption into the Australian community after what may be his twentieth year of residence in this country. How then can the immigration power still reach him? (at p377)

9. I derive no comfort from the reference, in s. 6, to guardianship determining when "the provisions of this Act cease to apply to and in relation to the child". This is in my view no more than a reference to s. 11, which provides for the exemption of any child from the provisions of the Act by order of the Minister. Both s. 6 and s. 11 use the same language to refer to the cessation of application of the Act and each traces its ancestry back through the original legislation of 1946 to the National Security (Overseas Children) Regulations, in which their predecessors were regs 3 and 22 respectively and in which the reference in reg. 3 to cessation of application is quite clearly a reference to the making of an order under reg. 22. (at p377)

10. I am unable to read the concluding words of s. 6 as referring to the case of the Act ceasing to apply because, by absorption into the Australian community, the child has ceased to be within the reach of the constitutional power which justifies the enacting of s. 6. I am equally unable to read s. 6 as applicable only to children not yet absorbed into the community and this for the reasons given, in reference to a somewhat analogous situation, by Higgins J., in Ex parte Walsh & Johnson; In re Yates (1925) 37 CLR, at pp 111, 112 - see and contrast per Knox C.J. (1925) 37 CLR, at pp 61-62 and per Rich J. (1925) 37 CLR, at pp 126-127 . (at p377)

11. The reason why I have ultimately concluded that s. 6 does not exceed the bounds set by the immigration power lies in the fact that the section is concerned with children and, moreover, with children over whom, on their first arrival in Australia, the Minister has undoubted constitutional power. These children arrive as immigrants and, being children, lack full capacity. Hence their domicile, whether original or of choice, will, so long as they remain under disability, be determined by that of their father (Udny v. Udny (1869) 1 LR 1 Sc & Div 441, at p 457 ). For them no change of domicile by the exercise of their own volition is possible and this because a child "could not in the eye of the law have any mind; he was not capable of forming an intention on the subject" (In re Macreight; Paxton v. Macreight (1885) 30 Ch D 165, at p 168 ). (at p377)

12. No doubt the concept of domicile is in some respects quite distinct from that of absorption into, and resultant membership of, the Australian community; yet each involves the capacity to form an intention (Potter v. Minahan, per Barton J. [1908] HCA 63; (1908) 7 CLR 277, at pp 298-299 ). Without legal capacity I would doubt the ability to be absorbed, at least in the case of an "immigrant child" as defined who does not arrive in Australia to live with his parents or an adult relative and for whom the opportunity, which may perhaps be open to others, of acquiring membership of the community as part of a family unit is thus foreclosed. Such a child is rather in the position of the orphan minor who, for want of parents, cannot, during minority, effect a change in what was his domicile at his parents' death - Dicey & Morris, Conflict of Laws, 9th ed. (1973), p. 119 - whereas it may be that in other cases the absorption of the parents will result in the child's absorption. (at p378)

13. It is for this reason that I have concluded that the manner in which s. 6 treats of the guardianship of immigrant children, imposing upon them a state of guardianship until they attain the age of twenty-one, does not involve any overreaching of the immigration power. The fact that in most respects in most, if not all, States the age of majority is now attained at eighteen I regard as not detracting from the foregoing; the cases are replete with references to the gradual nature of the process by which membership of the community is attained and a period of three years after attaining full capacity may readily be regarded as providing no more than an appropriate trial period during which the immigration power is still operative. (at p378)

14. Since I would hold s. 6 to be valid it follows that it provides a defence to the present application, I would discharge the order nisi. (at p378)

MASON J. Raymond Maxwell Henry and his wife Joan Olive Henry obtained an order nisi for habeas corpus in the Supreme Court of Victoria against the respondent Director-General of Social Welfare for Victoria, a State officer acting as delegate of the Minister for Immigration (Cth) pursuant to s. 5 of the Immigration (Guardianship of Children) Act 1946-1973 (Cth) ("the Act"). The order related to a South Vietnamese child Nguyen Thi Nhung who was brought to Victoria by aircraft on or about 18th April 1973 and then placed in the Infectious Diseases Hospital at Fairfield where she remained under the direction and control of the respondent. (at p378)

2. The applicants claim custodial rights in respect of the child deriving from a document dated 8th April 1975 signed under seal by the Director of an orphanage in South Vietnam known as "Notre Dame des Missions", the Director then having the custody and control of the child. On the other hand the respondent claims that the Minister is the guardian of the child under s. 6 of the Act and threatens that in the exercise of powers duly delegated to him under s. 5 of the Act he will place the child with other persons who have been approved by him as adopting parents with a view to their adopting the child. (at p379)

3. On the return of the order nisi it became apparent that the respondent was relying on the powers conferred upon him as delegate of the Minister by the statute. By way of answer, counsel for the applicants indicated that their case was that the relevant provisions of the Act were ultra vires the Commonwealth Parliament, not being authorized by s. 51 (xxvii.). The learned primary judge then held that an inter se question had arisen and that the cause was automatically removed to this Court. (at p379)

4. The issue for determination is whether s. 6 of the Act is a valid exercise of the power to make laws with respect to immigration. (at p379)

5. According to its long title the Act is "An Act to make provision for and in connexion with the Guardianship of certain Children from outside Australia". Section 6 provides:

"The Minister shall be the guardian of the person, and of

the estate in Australia, of every immigrant child who arrives

in Australia after the commencement of this Act to the exclusion

of the father and mother and every other guardian of

the child, and shall have, as guardian, the same rights, powers,

duties, obligations and liabilities as a natural guardian of the

child would have, until the child reaches the age of twenty-one

years or leaves Australia permanently, or until the provisions

of this Act cease to apply to and in relation to the

child, whichever first happens." (at p379)

6. The expression "immigrant child" is defined by s. 4 to mean

"a person under the age of 21 years who enters Australia

as an immigrant, not being a person who enters Australia in

the charge of, or for the purpose of living in Australia under

the care of, a parent of that person, or a relative of that person

not less than 21 years of age." (at p379)

7. The immigration power is not confined to regulation of the physical entry of an immigrant into Australia; it may be exercised so as to apply to him at least until he becomes a member of the Australian community (R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly (the Irish Envoy's Case) [1923] HCA 39; (1923) 32 CLR 518, at pp 533,582-583 ). In that case Isaacs J. (with whom on this point Rich J. concurred) went further and said, "Once an immigrant, always an immigrant", a view which they reiterated in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR, at pp 83-89,127 . Their Honours were speaking not of a condition attached to an immigrant's permit to remain in Australia whilst still an immigrant before he becomes a member of the Australian community, but of the scope of the legislative power and its capacity to touch a person, formerly an immigrant, after he becomes a member of the Australian community. (at p380)

8. This wider view of the power was rejected by a majority of the Court in Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 . Of the majority, Higgins J. thought that the power was confined substantially to regulation and control of entry into Australia. However, his view of the power did not commend itself to the other members of the Court. (at p380)

9. In O'Keefe v. Calwell [1949] HCA 6; (1949) 77 CLR 261, at pp 276-277 , Latham C.J. said that the power

"is a power to make laws with respect to the whole subject

of immigration - with respect to each and every element

in immigration ... 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 ...

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."

Dixon J. did not express an opinion as to the limits of the power and contented himself with saying that the adoption of the machinery of an exemption certificate to prevent persons entering or remaining except by consent, and then so long as the consent continues, was within power (1949) 77 CLR, at p 288 . (at p380)

10. Subsequently in Koon Wing Lau v. Calwell, Latham C.J. said [1949] HCA 65; (1949) 80 CLR 533, at p 560 :

"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." (at p380)

Again, in Reg. v. Forbes; Ex parte Kwok Kwan Lee, in a judgement in which the other members of the Court agreed, Barwick C.J. said (1971) 124 CLR, at p 172 :

"It was said in O'Keefe v. Calwell [1949] HCA 6; (1949) 77 CLR 261 that immigration

as a concept involves two elements (a) entry into the country

and (b) absorption into the community of the country. Parliament

clearly has authority to legislate with respect to both

elements and laws which control those elements can be

made under s. 51 (xxvii.)."

These statements must now be accepted as authoritatively establishing that the power is not confined to the control of entry and that it extends to control of the absorption of immigrants into the country. (at p381)

11. It was submitted that, despite these observations, the subject matter of the power is immigration, not immigrants - the opinion voiced by Higgins J. in Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR, at p 110 . Although the distinction is well taken, it cannot be pushed too far. A law about immigrants may be, and very often will be, a law about immigration. The question in every case must be: Is it a law about immigration? The fact that it can also be described as a law about immigrants is by the way. It is, I think, generally accepted that Parliament can in the exercise of the power, if it is so minded, pass laws requiring immigrants to undertake prescribed educational courses and tests to fit them for admission into the Australian community. Indeed, it can prescribe such qualifications as it selects as conditions of eligibility for admission into that community. Such laws relate directly to the second of the two elements which are said to be central to the constitutional conception of immigration. However, it does not follow that what is prescribed, whether by way of qualification or otherwise, must be seen as something which necessarily facilitates admission into the community. (at p381)

12. In my view the power extends to the making of laws for the general welfare and protection of immigrant children so long at any rate as they continue to possess the character of immigrants. Laws of this kind are correctly characterized not only as laws about immigrants, but also as laws about immigration. They may be justified as laws which tend to facilitate the admission of immigrant children into the Australian community. But, quite apart from this consideration, they fall within the ambit of the power because the general welfare and protection of immigrant children falls fairly and squarely within the subject matter described as "immigration". There is no occasion to dwell on the problems and difficulties which migrants have in acclimatizing and adjusting themselves to Australian conditions and customs in order to demonstrate the nexus between laws of this character and the subject matter of the power. (at p381)

13. Section 6 is a general provision applying to every immigrant child, constituting the Minister as the guardian of his person and estate to the exclusion of his father and mother and every other guardian of the child. The far-reaching effect it would otherwise have is diminished by the statutory definition of "immigrant child" which excludes the application of s. 6 to a child who enters Australia in the charge of, or for the purpose of living in this country under the care of, a parent or a relative who is not less than twenty-one years of age. The wisdom of vesting guardianship exclusively in a Minister of the Crown or public servant may be doubted but to my mind this is not a matter which has any bearing on the question of validity. Nor for that matter is it relevant that State laws of general application might be thought to be adequate to deal with questions of guardianship and custody affecting immigrant children. The fact remains that s. 6 is a law dealing with the general welfare and protection of immigrant children. (at p382)

14. Section 6 is expressed to apply until the child reaches the age of twenty-one, leaves Australia permanently or until the provisions of the Act cease to apply to and in relation to the child, whichever first happens. Although the section makes no explicit reference to a child ceasing to possess the character of an immigrant, the reference to the provisions of the Act ceasing to apply should, I think, be understood as embracing any situation in which a child, formerly an immigrant, passes beyond the reach of the constitional power. Thus, if a child, on becoming absorbed into the Australian community, passes beyond the reach of the power, the Act would cease to apply to or in relation to the child. Quite apart from this express limitation which is to be found in the statutory definition I should have thought that s. 6 would require to be read as having an application to children only so long as they are immigrant children. (at p382)

15. Admittedly there will be difficulties in determining when it is that the Minister's guardianship in a particular case terminates. But this is not a matter which goes to the question of validity. Nor is it material to that question that the guardianship is so expressed that it may endure until a child attains the age of twenty-one years, rather than eighteen years. (at p382)

16. In my opinion, therefore, s. 6 of the Act is within power. It provides a defence to the application and accordingly I would discharge the order nisi. (at p382)

JACOBS J. The question which arises in this case is whether and to what extent it is an incident of the power to make laws in respect of immigration to legislate in respect of immigrants on matters not directly related either to the act of entering or to the duration of their residence in this country. The cases previously decided in this Court have dealt only with the act of immigrating and the extent of the rights of immigrants to remain in this country. After a sharp division of opinion on the Court it is established that under the immigration power persons not born in Australia can only be deported therefrom if they have not "made their homes in Australia and become part of its people", if such a person has not become "a member of the Australian community": Ex parte Walsh and Johnson; In re Yates, per Knox C.J. Knox C.J. there said (1925) 37 CLR, at pp 62-63 :

"On any given day any person either is or is not a member

of the Australian community. If on a given day a person

seeking to enter Australia be exempt from the operation of a

law made under this power purporting to prohibit his admission,

he cannot, in my opinion, be on that day subject to the

operation of a law made under the same power purporting

to authorize his expulsion. The liability of any person to inclusion

within the ambit of this power so that he may be subject

to the operation of a law made under it, must, in my

opinion, be determined on the same considerations whether

the law made under the power be directed to restricting his

right to enter the Commonwealth or destroying his right

to remain there."

A law providing for the deportation in certain conditions of persons not born in Australia was held valid because on its true construction it applied not to all such persons but only to such of them as had not made their homes in Australia and become part of its people. (at p383)

2. Later decisions of the Court have affirmed and elaborated this principle. In particular Latham C.J. in O'Keefe v. Calwell [1949] HCA 6; (1949) 77 CLR 261 pointed out that immigration involved not only entry but also absorption into the community and that both these elements can be controlled under the power to make laws with respect to immigration. This was stated in the context of the question whether an immigrant could be deported when she had been allowed to remain in Australia under a temporary permit but had by her acts done all that needed to be done to become a member of the Australian community. Latham C.J. observed that a person could not become a member of the Australian community by his own act when he has been admitted and allowed to remain only under a temporary permit. He said (1949) 77 CLR, at p 277 :

"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.

It is unnecessary and somewhat unconvincing to

seek to justify legislation as immigration legislation upon the

basis of a contention that any entry into a country is 'immigration',

even though the entry is obviously only temporary.

Such legislation is justified as legislation upon the subject of

immigration because without control of the entry of all persons

not already members of the community there cannot be

control of the second element - possible absorption into the

community. Thus laws with respect to immigration may impose

conditions of entry upon such persons and may provide

for the limitation of the period during which they are to be

permitted to remain in Australia, and may lawfully provide

for their deportation upon the expiry of that period." (at p384)

3. Latham C.J., with Dixon J., dissented from the majority but his analysis of the two elements has been accepted: Reg. v. Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14; (1971) 124 CLR 168 . (at p384)

4. It must however be borne in mind that in these cases the extent of the immigration power was being explored in the particular aspect of deportation. Useful as they are in determining the meaning of the word "immigration" and the general nature of the power it is important not to transpose concepts apposite to the aspect of deportation into other aspects of the power, in particular into that aspect of the power presented by the instant case. It does not follow that because a person has entered Australia and been permitted to remain here and to become a member of the Australian community, therefore no law of the Commonwealth whose validity depends upon the immigration power can validly apply to such a person. It is within the immigration power not only to control entry and absorption into the Australian community of persons not born in Australia but also, as an incident of the power, to make laws which so relate to the special needs or special characteristics of immigrants that the subject matter of a law dealing particularly with immigrants may be valid as a law with respect to immigration even where the subject matter generally is not one upon which the Commonwealth has power to legislate. There is truth in the aphorism that the power is in respect of immigration and not immigrants. But there is truth also in the aphorism "Once an immigrant, always an immigrant". Like most aphorisms in the law they are both no more than half-truths and they solve nothing. In relation to deportation a day comes, it has been held, when an immigrant is absorbed into the Australian community so that he cannot thereafter be deported under the immigration power. But the concept of absorption into the Australian community, though it is a useful consideration in all aspects of the power, has a different content in the context of deportation from that which it has in other contexts of the immigration power. So long as an immigrant has a special need or so long as Australia has a special need from him then so long may the Commonwealth legislate in respect of that special need of the immigrant or the country; and this may be so even if he has become a member of the Australian community in that he can no longer be deported. Of course it could be said that so long as an immigrant has a special need or Australia has a special need from him then he has not been absorbed into the Australian community. But it can only be correct provided that it is then kept clear that the words "absorption into the Australian community" are used in this context with different content and application from those in the context of deportation. Therefore, State laws discriminating against immigrants politically economically or socially could be avoided by a Commonwealth law prohibiting such discrimination. Likewise forms of discrimination by individuals could be prohibited in respect of all, or any particular class of, immigrants; and the law would be valid even though the particular immigrant had been so far absorbed into the community that he could no longer be deported. (at p385)

5. It is necessary to examine the instant law and to determine whether it is a law with respect to custody and guardianship limited in application, for no apparent reason related to its subject matter, to children who happen to be immigrants or whether the fact of immigration into Australia may be regarded by the Parliament as generating in a child so immigrating a speciality in his situation which requires legislative provision. The Parliament has taken the view that there is a speciality in the situation of persons under the age of twenty-one years who enter Australia as immigrants not in the charge of, or for the purpose of living in Australia under the care of, a parent or a relative not less than twenty-one years of age. The Minister is by s. 6 of the Act constituted the guardian of their persons. I do not doubt that there is a speciality in the case of such persons which requires or at least permits particular legislative provision. Why should Australia allow children to enter the country without any provision for their needs and their supervision? It is no answer that the States might provide for both. They could well decline and validity obviously does not depend on State legislative attitudes. (at p386)

6. It is outside the function of this Court to express any view on the desirability of this legislation either in subject matter or in its particular provisions. It is only necessary to consider whether it falls within that aspect of the immigration power which I have attempted to express. I have no doubt that it does so and that the rule nisi for habeas corpus should be discharged. (at p386)

MURPHY J. The question in this case is whether the Immigration (Guardianship of Children) Act 1946-1973 (Cth) validly makes the Minister guardian of the child Nguyen Thi Nhung, who is the subject of the habeas corpus proceedings. (at p386)

2. The applicants claim that the relevant parts of the Act are invalid because they are beyond the constitutional power of the Parliament. (at p386)

3. The power to make laws with respect to "immigration and emigration" has not been exhaustively defined. It is within the power to promote and facilitate absorption of immigrants into the community. For example, laws providing for acceptance of professional or trade qualifications gained in the migrant's homeland and prevailing over State laws which require qualifications gained in the State would be within the power. Discrimination against migrants by State law or administration or discrimination by other bodies or persons could be prohibited by an exercise of this legislative power. (at p386)

4. Assistance to migrants and former migrants in housing, employment, health and welfare services would fall within the power. (at p386)

5. The power also extends to laws preventing or discouraging absorption into the community. (at p386)

6. The legislation under consideration is of a protective type. It is "an Act to make provision for and in connection with the Guardianship of certain children from outside Australia". (at p386)

"The Minister shall be the guardian of the person, and of

the estate in Australia, of every immigrant child who arrives

in Australia after the commencement of this Act to the exclusion

of the father and mother and every other guardian of

the child, and shall have, as guardian, the same rights,

powers, duties, obligations and liabilities as a natural guardian

of the child would have, until the child reaches the age

of twenty-one years or leaves Australia permanently, or until

the provisions of this Act cease to apply to and in relation

to the child, whichever first happens." (at p387)

8. "Immigrant child" is defined as meaning, unless the contrary intention appears,

"a person under the age of 21 years who enters Australia

as an immigrant, not being a person who enters Australia in

the charge of, or for the purpose of living in Australia under

the care of, a parent of that person, or a relative of that

person not less than 21 years of age." (at p387)

9. Broadly, the law is intended for the protection of immigrant children who come to Australia in circumstances where they enter other than in charge of or to live with a parent or relative over twenty-one years of age. (at p387)

10. It is within the scope of the legislative power to provide for the supervision of such a child, to facilitate her absorption into the community, or perhaps to ensure that if, for some reason, absorption would not be in her best interests, it is prevented so that she may, for example, return to her birthplace. This protection of children is consistent with the Declaration of the Rights of the Child (Proclaimed by the General Assembly of the United Nations on 20th November 1959 (General Assembly resolution 1386 (XIV))). (at p387)

11. Subject to the consideration of one aspect, the legislation obviously falls within the power and is valid. This aspect is the application of the guardianship provisions to persons up to the age of twenty-one years. The definition of "immigrant child" in s. 4 extends the meaning to cover persons under the age of twenty-one years, and s. 6 continues the guardianship of the Minister until the child reaches twenty-one or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens. (at p387)

12. The references to the age of twenty-one have been in the legislation since 1946. In 1946, it was generally recognized and the laws of the Parliament and of the States were made on the assumption that adulthood was attained at twenty-one years (cf. King v. Jones [1972] HCA 44; (1972) 128 CLR 221 ). Since then, a profound social change has occurred in Australia and other similar countries. Eighteen has replaced twenty-one as the age of adulthood, not only in community acceptance, but in national and State laws generally. (at p387)

13. The fact that the age of twenty-one remains in the Act may be regarded as legislative oversight. It does, however, suggest some important questions, which may not strictly arise here as the child in the proceedings is very young and has not been absorbed into the Australian community. They have not been fully explored, and I will deal with them on that basis. (at p388)

14. Leaving aside justifications such as unsoundness of mind, quarantine, and administration of the criminal law, it would not be within the scope of the immigration power to permit migrants to be left in a state of guardianship indefinitely. On the face of it, a law to provide for guardianship of persons up to the age of thirty would be invalid. (at p388)

15. The reason lies in the nature of our Constitution. It is a Constitution for a free society. It would not be constitutionally permissible for the Parliament of Australia or any of the States to create or authorize slavery or serfdom. A law which (apart from justifications relating to infancy, unsoundness of mind, quarantine or administration of the criminal law) kept migrants or anyone else in a subordinate role inconsistent with the status of a free person, would be incompatible with a fundamental basis of our Constitution. (at p388)

16. In my view, this consideration now applies to persons who have reached the age of eighteen, which in our society is generally recognized as the age of full capacity. Subjection of a person of eighteen years or more (who may or may not be married) to guardianship, is incompatible with the implication of freedom in our Constitution, which by reason of the changes in our society now applies to persons aged eighteen as once it applied to those aged twenty-one. In my view, the Act would not operate validly to permit the continuance of guardianship of persons aged eighteen years and over. (at p388)

17. The continuance of guardianship during incapacity (that is, up to the age of eighteen years), even after absorption into the Australian community, may be regarded as incidental to the immigration power, and falling within the power conferred by either or both (xxvii.) and (xxxix.) of s. 51 of the Constitution. It is within the scope of such legislative power to provide that guardianship would continue after such absorption, for example, so that the benefits of the guardianship to the child would not end. Parliament may properly consider that the usefulness of such a method of guardianship depends on its continuance throughout incapacity (except where the Minister orders (s. 11)), and that its ending, especially by an indefinite process (such as absorption) would defeat the object of the main provision. (at p389)

18. It seems to be accepted by the parties that if the Act validly operates to make the Minister guardian of the child, then the application for habeas corpus should fail. The child is too young for any question of its choice to arise (see R. v. Greenhill (1836) 4 Ad & E 624, at p 643 [1836] EngR 373; (111 ER 922, at pp 928-929) , Wright v. Wright (1974) 4 ALR 251, at p 254 ). (at p389)

19. The application therefore fails. The order nisi should be discharged. (at p389)

Immigration (Guardianship of Children) Act 1946

Interpretation Act 1901

R v Director-General of Social Welfare

At a glance

Court

Decision date

Source

Judgment (89 paragraphs)

R v Director-General of Social Welfare (Vic); Ex parte Henry [1975] HCA 62; (1975) 133 CLR 369 (22 December 1975)

Parties

Legislation Cited (3)

Cases Cited (9)