Williamson v Ah On [1926] HCA 46

Williamson v Ah On [1926] HCA 46 | Case summary | Zoe

Tsaacs J. The importance of this case is not easily measurable, and the issues need to be plainly stated. On its decision, as the position presents itself to me, depends the power of the National Parliament to give any effective force to what is known as the White Australia policy, or to any policy of controlling undesirable immigration. Indeed, the main principle contended for as the reason for annulling the relevant legislation would equally apply to seriously weaken other legislative powers, as, for instance, the customs, commerce and aliens. As to immigration, experience and well-known circumstances have compelled, not only America, but also the self-governing communities of the Empire, as Canada, South Africa, New Zealand, as well as Australia, both before and since Federation, to enact stringent substantive laws in order to safeguard the ethnic, social and industrial conditions of the people of the land and maintain their standards of living. In most cases, and in late years invariably, special evidentiary provisions have been included without which the main substantive provisions would be of little use. These evidentiary provisions have been found necessary to prevent or counteract the surreptitious or fraudulent evasion of the actual immigration laws by persons who in truth are smuggled into the country and are only discovered, if ever, with difficulty. This is the class of persons with which this case is concerned, and, broadly speaking, the only class of persons intended to be reached by the legislation impeached by the respondent. Responsible Government is the constitutional check on arbitrary administration. In my opinion, no mere length of time and no apparent assimilation with the general population, if secured by successful evasion of law, can confer on the offender any moral or legal right to claim this country as his patria. An intruder he was from the first, and an intruder he remains. There may, in the Walsh and Johnson Case (1), be found some expressions to the contrary, but they are not the opinions of a majority of the Court. That case decides nothing which would

How, then, can this nefarious and dangerous practice be nullified - where it escapes detection at the time of entry? The only method so far found effective in which a legislature can provide for such a case and secure obedience to its enactments on immigration is to throw the burden of proof as to membership of the community on the suspected person. A nation has the strongest right to trust its executive officers who are administering the law to be both vigilant and careful to form, wherever necessary, a fair and honest prima facie opinion - as to the citizenship of any person within the territory, and to'accuse_ no one of intrusion except upon strong moral grounds for believing the fact. If such an opinion, however, exists, the public have a right where the nature of the case requires it, to call on the suspected person by such procedure as the legislature makes lawful to satisfy a judicial tribunal as to the actual fact. That seems to me only elementary self-protection and to be inseparable from any self governing constitution. I must confess to some surprise that it is necessary to justify it. For, otherwise, persons who are criminals, anarchists, public enemies, or loathsome hotbeds of disease, may, - by secret or fraudulent entry into the country and being sheltered for a time by their associates, defy and injure the entire people of a continent. There is nothing in the Constitution, and nothing in natural justice, which requires this Court to sanction such an absurd and almost fatal situation. The Constitution was not made for a static Commonwealth. It was made - as I have repeatedly said before, sometimes with more and sometimes with less effect - as a practical working instrument for a growing nation, and there may be stability of legal principles and fidelity to the words of the Constitution quite consistently with adaptation of those principles and words to the new circumstances of a progressive people. And certainly the fullest protection to the constitutional rights of the individual is not inconsistent with his public obligation in ease of doubt to prove his right to share the privileges of the Australian community.

world possessing autonomy, the Commonwealth of Australia alone lacks the means of effective self-protection. And it may be added that if this capacity be denied to the Commonwealth Parliament _it now exists nowhere in Australia, because, in face of the Common- wealth legislation on the subject, the States are powerless to interfere.

The Facts. - The facts of this case deserve stating with some approach to precision, because they present the question very sharply. If the respondent could succeed in being declared an Australian, it would be hard to imagine a more striking instance of national helplessness before a proved Chinese immigrant, who in all moral probability - he alone being able to confirm or dispel it - surreptitiously foisted himself on this community, successfully eluded 'observation for some years, and eventually has unquestionably perjured himself wholesale in the witness-box to. escape the -consequences. Much of his fraud has been detected, but, if the ssections now attacked had not been in existence, he probably would never have offered himself as a witness and so would never have been exposed at all. As it is, a material link in the legal chain is missing, despite moral certainty, without the challenged statutory provisions, and so, without them, the respondent must succeed. 'The material facts are these : - Ah On, in May 1926, was found in Australia by the appellant Williamson, a Customs House officer, who administered a dictation test. Naturally the respondent failed 'to answer the test. A complaint was laid against him at Perth as being a prohibited immigrant, found within the Commonwealth, in 'contravention of the Immigration Act 1901-1925. The complaint 'contained the following averments: (1) Ah On is an immigrant ((2) he evaded an officer, (3) he was found within the Commonwealth on 14th May 1926, (4) he failed to pass the dictation test. If those averments were proved according to law, there in no doubt Ah On was a prohibited immigrant and had contravened sub-sec. 1 of sec. 5 of the Act. Now, it is material to observe that, quite apart from any statutory rule as to evidence and basing his conclusions tin the ordinary course on evidence actually given, as, in my opinion,

he must do, as to certain of the averments, the Police Magisti found certain important facts. He found: (1) that Ah On immigrated to Australia about 1911 and not in 1897, as Ah On swore; (2) that his age is from twenty-five to twenty-seven at most, and not forty-two or forty-three as the respondents evidence would make it; (3) that the respondent's statement that he had been engaged in gardening in Australia for twenty-eight years was. untrue, and that even now his hands - which he declined to submit to medical examination - present the appearance of little if any hard work; (4) that he untruly stated the name of the vessel by which he arrived and the date and place of his arri in the Commonwealth; (5) that, although the Magistrate is. " convinced of the fact " that Ah On evaded an officer on his arrival, the positive evidence was insufficient to enable the Magistrate to. find the fact definitely - he, however, did not believe the respon- dent's story that he had not evaded an officer; (6) that Ah On was found within the Commonwealth and was required to pass and failed to pass a dictation test. These conclusions of fact have not been challenged, and, on recognized principles applicable to appeals, could not be successfully challenged. This Court is obviously altogether unable to supply by any finding of its own the missing link, namely, that the respondent on his arrival in 1911 evaded an officer. Of course, in the circumstances, which are notoriously typical, the Crown could never hope to give - for it is a moral impossibility that it should be ina position to give - positive evidence, either that the respondent arrived in 1911 or where he arrived, or what he did when he arrived. That is all within his knowledge exclusively so far as the Crown is concerned. Unless, therefore, the challenged statutory provisions of sub-secs. 3 and 3a are available the respondent must succeed and, in effect, go forth an Australian. 2. Retrospectivity. - Before the Police Magistrate the only objection _ taken to applying those sub-sections was that, having been passed since 1911, the date of Ah On's arrival in Australia, they did not- operate in relation to him. This was on the ground of retrospectivity. The Magistrate very properly followed the decision on this point: of the Supreme Court of Western Australia. The answer, however, as to retrospectivity is obvious. If, on the true construction, they

applied to this case the argument is that it cannot lawfully " deem aa person an immigrant if that person in fact is for any reason not subject to the immigration power, and as such a case may be included the provision is illegal. To that principle, baldly stated, no one could for a moment refuse assent. The plain answer is: Parliament has not on any reasonable construction of the words done so or attempted to do so. It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly. The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence ; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain pre-appointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter. But for the contrary opinion of those of my learned brethren who hold the opposite view, my answer to the contention of learned counsel in - this case would be summary. Ishould have thought that sec. 51, by sub-sec. xxvu. ("immigration and emigration") and sub-see. XXXIX. (incidental powers), read by the light of our constitutional and legal history, fully justifies without elaborate exposition every word of the challenged legislation. It seems to me very like burning daylight to substantiate the parliamentary power by reference to authority and practice. It is trite law, since Hodge v. The Queen (1), that within the prescribed limits of the Constitution the Parliament of a self-governing Dominion has "authority as plenary and as ample . . . as the Imperial Parliament in the plenitude of its power possessed and could bestow." In Robtelmes v. Brenan (2)

of making it effective." Now, as to the substantive portions of the Immigration Act, that is, those regulating immigration, it is already firmly decided in previous cases that the Act is valid and operative, and is, therefore, within the prescribed limits set by the Constitution. The only question remaining is whether the ancillary or incidental provisions enacted with reference to procedure in a Court of justice go outside the limits, or whether they, however drastic, are anything more than evidentiary sections - not in any way enlarging or attempt- ing to enlarge the powers of the Parliament, but securing the effective enforcement of an otherwise admittedly lawful exercise of a power expressly granted. In my opinion, when we have regard both to principle and to precedent, it is clear the sections are within the competency of Parliament, and are nothing more than a necessarily strict requirement as to burden of proof to be satisfied by the best evidence. 'English lawyers," say Dicey and Keith in the Conflict of Laws, 3rd ed., at p. 762, " give the widest possible extension to the meaning of the term ' procedure.' The expression, as interpreted. by our Judges, includes all legal remedies, and everything connected with the enforcement of a right. It covers, therefore, the whole field of practice ; it includes the whole law of evidence," &c. At p. 763 it is pointed out that a rule of law, so far as it affects, not the enforcement of a right, but the nature of the right itself, does not come under the head of procedure. That distinction is, I venture to think, the touchstone for determining this case. In which category do the assailed sub-sections fall? Little, if any, objection would, T apprehend, be taken to them if they were confined to the matters included in the subdivided paragraphs of sub-sec. 3. But, as already shown, those paragraphs are inseparably connected with the previous words of the sub-section. The crucial question resolves itself, then, into this: Is it within the competency of Parliament or not to cast the burden of proof as to whether a person is an "immigrant " on that person, or must that burden always, by the Constitution, rest on the Crown? It is not out of place to point out that this Court, as recently as 1924, constituted by three Justices (my brothers

recognized limits of evidentiary law, or is on proper construction an attempt to extend the frontiers of substantive power. "' Jurisdic- tional fact," in other words, is not and cannot be the decisive criterion as to burden of proof when legislative action is under consideration. The American cases do not employ the expression " jurisdictional fact" to deny legislative power. The position is well put by Warrington J. for the Circuit Court of Appeals, in Ng You Nuey v. United States (1), in these words: " Citizenship is a fact, as well as a right, and to exact proof of the fact is not an attempt to destroy the right but is to apply a rule of evidence to ascertain the truth or not of its existence." It is not, however, unimportant to observe that, if the proposition contended for is sound, it is equally applicable to State Constitutions. There is always - unless specially enlarged by Imperial law - one " jurisdictional fact " limiting State legislative powers. Those powers are to make laws "in and for" the State ; and the grand jurisdictional fact is that the crime, for instance, penalized was committed within the territory. Macleod v. Attorney- General for New South Wales (2) illustrates this. But, if a State Evidence Act said that in all prosecutions for bigamy the second marriage averred shall be deemed to have taken place in the State, unless the accused shall truly state where it took place, would that be invalid as an attempt to enlarge the State legislative power ? 'The answer must, in my opinion, be unhesitatingly in the negative. We must, therefore, look further than the suggested criterion. For this purpose it is proper to ask what is the recognized legitimate basis in English law for casting on a party the burden of proof without in any way attempting to alter the substantive law of rights and duties that is assumedly being enforced? As already said, this concerns many of the legislative powers of the Commonwealth, and so, in view of the circumstances, calls for careful examination. 6. Construction. - Much stress was placed on the word " deemed " as carrying the legislation too far. "Deemed" there, I think, means "adjudged," but though, as I have said, stopping there would be fatal, as closing the judicial door, the following words keep that door open to an extent which enables the defendant to give all the evidence in his power by way of defence, as fully as if

majority of cases probably decisive. The reason for requiring the H- ©. oF A- proof of these facts is based on experience. The enforcement of the ee Immigration Acts is "attended with great embarrassment, from Wui1amson the suspicious nature, in many instances, of the testimony offered" as om in immigration cases " nich Je the witnesses of the obligation of an oath" (cf. Fong Yue Ting vy. "tke! United States (4) ). It is said that some persons may not know the facts or may have forgotten them, but that is challenging the wisdom, fairness and justice of the law and not its competency. With the wisdom, fairness and justice of the law this Court has nothing to do, and cannot express any opinion upon the matter. It is unnecessary to deal at length with the contention that the respondent has already been acquitted of the matters charged against him in this case. He was not charged in the former proceed- ings under sec. 5, sub-sec. 1 (a), but under sec. 5, sub-sec. 2. It is plain, we think, from sec. 5, sub-sec. 3, that sub-secs. 1 and 2 of sec. 5 constitute separate and distinct offences and are not instances of a general offence constituted by the provisions of secs. 3 and 7. The ground upon which the Magistrate decided the case, namely, that sec. 5 of the Immigration Act is not retrospective, disappears when the relevant Acts and facts are examined. The defendant entered the Commonwealth in 1911, but at that time sec. 5, sub-sec. 1 (a), under which he was charged was in force. We agree that the section only applies to immigrants who enter Australia after the date of its enactment, but the defendant did so enter, and therefore fell within its terms. Further, the complaint in this case was made on 15th May 1926 and at that time the provisions in sec. 5, sub-secs. 3 and 3a, were in force. Now these sub-sections refer to prosecutions

legal proceedings - and not to the entry of persons into the Commonwealth. In this case it is therefore needless to discuss the rule that enactments dealing with procedure apply to all proceedings whether commenced before or after the passing of the Act. The proceedings here in question were in fact commenced after the passing of sec. 5, sub-secs. 3 and 3a, and necessarily fall within their terms. So far as this case is concerned, these provisions have no retroactive operation at all.

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