R v Wilson [1934] HCA 63

R v Wilson [1934] HCA 63 - HCA 1934 case summary — Zoe

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Piddington K.C. The history of the legislation dealing with immigration is shown in the Australian Encyclopedia (1926), vol. t., pp. 653 et segg. The expression "an European language " in sec. 3 (a) of the Immigration Restriction Act 1901 does not mean a pan- European language, nor does it mean "any" language that is spoken in any part of Europe. The forms of speech are many and varied, e.g., standard dialect, patois, jargon, argot, and " pidgin" English. The difference between languages and dialects is univer- sally recognized. A dialect is a form of speech used, usually, by the people of a comparatively small district as opposed to that used by the nation as a whole, or by the people of a country defined by political boundaries. In any country, using the word country in its ordinary sense, there is, usually, only one language, but many dialects (Maa Miiller on the Science of Language, 9th ed. (1877), vol. 1., pp. 52, 53; Chambers Encyclopedia, (1908), vol. 3, p. 786 ; (1924), vol. 3, p. 792). The expression "an European language " means a standard or received national language of any country in Europe however small or however large; the language which in any such country is used in its commercial, diplomatic, political and governmental activities. In any country there is only one standard language (Encyclopedia Britannica, 11th ed. (1911), vol. xvr., p. 179). The standard language of the United Kingdom, of which Scotland forms part, is the English language. What constitutes a language is shown in Graff on Language and Languages (1932), pp. 321 et seqg. Scottish Gaelic is a dialect only of the Gaelic language, and is itself composed of various dialects (Encyclopedia Britannica, Ith ed. (1910), vol. v., p. 617). Scottish Gaelic differs from the Gaelic spoken and used in Ireland. In the Irish Free State official recognition is given to the English language. Gaelic, whether Scottish or Irish, is not a language; it is a form of speech used slightly in undefined districts of the United Kingdom. Gaelic is not a "living" language, therefore it is not " an European language "

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gested that Scottish Gaelic is not an "European" language. In construing the expression "an European language" the Court is not required to examine the matter philologically or lexicographic- ally. It is a matter in relation to the immigration power of the Commonwealth, and it is by the language only that the Court should be guided. The function of the Court in examining a matter of this nature is as shown in R. v. Macfarlane; Ex parte O' Flanagan and O'Kelly (1). The question whether the test was administered in a language which is "an European language" is largely one of degree. This position stands out: (@ Scottish Gaelic is a language of European origin ; (b) it has a locality, that is, in Scotland ; (c) that it is in existence and has been continually in existence from the time it was first spoken until now ; (d) that it is spoken by a substantial number of people ; (e) itisa language which forms part of the curriculum of the Edinburgh University ; and (f) statutory recognition as a language was accorded to it in England in 1931. There is not any essential difference between a dialect and a language (Chambers Encyclopaedia, (1924), vol. 3, p. 792). The words " language " and " dialect " as used in philological works are interchangeable terms, because at some stage in historical times all languages were more or less dialects (see Encyclopedia Britannica, 11th ed. (1910), vol. v., p. 612; Skene's Celtic Scotland, (1877), vol. 11., pp. 463, 464 ; Chambers Encyclopedia (1908), vol. 5, p. 50). By not defining the expression " an European language " the Legislature retained the right to apply an arbitrary test. The statutory provision was designed, primarily, for the exclusion from the Commonwealth of Asiatics, the underlying motive being the preservation of a " white" Australia. The question whether Scottish Gaelic is " an European language " must be deter- mined as at the date of the passing of the Act. Its more restricted use since that date is not disproportionate to the decrease in the population of the districts where it was, and is, in use. Having regard to the large number of persons who have, during many years

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northern Scotland but had not used it in adult life, had apparently a very poor vocabulary and a fading recollection of the manner in which it was spoken. The appellant who knew little or nothing of Gaelic, after making some attempt to write what was read, declined to go on. The first question raised upon this appeal is whether Scottish Gaelic is a language authorized by sec. 3 (a) of the Immigra- tion Act 1901. In that provision it is noticeable that a " passage " is to be read in the European language for the immigrant to write out. It is apparent that the language must be one in which written expression is usual or common. Further, the provision seems to be intended to present the appearance of imposing a standard of education in some language of a kind which desirable immigrants into this country should know. Beyond this the context gives little help. If the provision were addressed to philologists, the expression "European language" might be taken to include any systematic form of utterance for the communication of ideas habitually used by people who in historical times have dwelt in Europe. If it possessed this meaning, it would include all the innumerable variations of speech which occur in recognizable forms going by gradations from anything which could be distinguished as a definite dialect up to completely separate languages. But the provision is not addressed to philologists. It is dealing with the practical subject of immigration from abroad, particularly from other nations. It ostensibly provides a test against illiteracy and against ignorance of European speech. I think it would be unreasonable to hold that every distinguishable form of speech which has a home in Europe can be resorted to for the purpose of asking the immigrant to write at dictation a passage of fifty words in length in an European language. The expression "an European language" means a standard form of speech recognized as the received and ordinary means of com- munication among the inhabitants in an European community for all the purposes of the social body. Scottish Gaelic is not such a language. Census figures show that it is the speech of a rapidly diminishing number of people dwelling in the remoter highlands of Scotland, and the western islands. It is not the recognized speech of a community organized politically, socially or on any other basis, There are very few indeed who now use it as their only tongue and

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familiar with the extraordinary diversity of closely related forms of speech. The problem whether a differentiation between two such forms of speech is so great as to constitute separate languages must be one of degree. Does every identifiable form of speech prevalent in any locality of Europe constitute a European language within the meaning of the provision ? Iam very much alive to the difficulty of attaching a definite meaning to these words which will be satis- factory and which will accord with the probable intention of the Legislature. No doubt the Legislature did not itself sufficiently advert to the many uncertainties involved in the expression it used. I have come to the conclusion, although not without some hesitation and doubt, that Scotch Gaelic does not fulfil the requirements of the definition which I would attach to the words. It appears to me that the objects which the Legislature had in view would not be furthered by attaching to that expression a meaning which is arrived at by disintegrating the phrase into its component words and asking oneself, first - is it a language? and then, is it European? Indeed each of these questions by itself has difficulties of its own. For instance, when a form of speech ceases to be a dialect and becomes a language is a question only of degree. It depends more on the proper use of the terms "dialect"? and "language" than on any - logical distinction. Again, whether a language is European probably : depends upon the place of its origin, but what is the place of origin of a language involves a question of the history of language, as well as a question of the meaning with which the term " origin" is used. The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the : subject matter with which the instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them. To ascertain this meaning the compound

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of people. The provision means to supply that test as one whicl might properly be laid down by the Legislature for intending immi- grants, however afterwards it might be applied in administration. Adopting such a test, it appears to me that the Gaelic language has been shown to be at the present time an ancient form of speech spoken by a remnant of people inhabiting the remoter portion of the British Isles. Scottish Gaelic has also been shown to be quite a distinct form of speech from Irish Gaelic and other Celtic forms, and to have a separate identity which would make it not proper to treat it as merely a dialectical form of a general speech which is spoken on both sides of the Irish Sea. The remnant of people who speak this language is fast diminishing. If it were relevant to ascer- tain what the Legislature would have thought about Scotch Gaelic, if, in 1901, it had adverted to the question we have to decide, it might be right to look at the figures of the census of 1901 showing how many spoke it. But I do not think the date of 1901 is the period to be looked to for the purpose of inquiring whether Scotch Gaelic is now a language which properly answers the meaning we have assigned to the expression " an European language " in the Immigra- tion Restriction Act. What are the attributes which the expression connotes, depends upon the general meaning which, of course, it possessed in 1901. But whether a particular form of speech possesses those attributes depends upon the facts and circumstances now affecting that form of speech. The figures show that, whilst it may be true that the areas of the country in which it is spoken have not been diminished so that it cannot be said that English, as an invader of the territory, has driven it back into narrower confines, yet within those areas there are very few people indeed who use that speech as their sole means of communication with their fellows. The inference appears to me to be very strong that in a modern community it has not been found a practicable medium for carrying on the affairs of daily life. People, who might otherwise have been able to preserve it, are called upon to mix in a society which either will not or cannot use it as a common means of communication. It is a speech which probably contains a vocabulary ill-fitted to deal with modern con- ditions. It is spoken by a people who appear to lead somewhat special lives, and do not move about and mix in the general life of

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)