IMMIGRATION DEPORATION OF PERSON convicted of criminal offence punishable by imprisonment for one year or longer: OFFENCE PUNISHABLE BY TWO YEARS’ IMPRISONMENT: PERSON CONVICTED BY JUSTICE OF THE PEACE HAVING JURISDICTION TO IMPOSE SENTENCE NOT EXCEEDING SIX MONTHS: CONSTRUCTION OF PENAL STATUTE
IMMIGRATION ACT 1901 s 8A: VagranTs Act 1851 (Qld) s 2
The Secretary, Department of Home and Territories, has forwarded the following memorandum to me for advice:
J.A.—QUESTION OF DEPORTATION UNDER SECTION 8A OF THE IMMIGRATION ACT 1901–1925
This youth arrived in Australia as an assisted migrant in December, 1923. He was convicted at Brisbane during October, 1924, on a charge of vagrancy and sentenced at the City Police Court to two months’ imprisonment. This would appear to indicate that he was dealt with summarily, and, therefore, liable to a maximum penalty of six months’ imprisonment.
In February, 1927, A. was again sentenced at Toowoomba to four years’ imprisonment for breaking, entering and stealing.
The Premier of Queensland has requested that steps be taken to deport this youth back to England, but as the second conviction took place after three years from the date of his arrival in Australia, no action can be taken under section 8A of the Act in respect of that conviction, and the question has been raised as to whether, notwithstanding that the case in October, 1924 was dealt with summarily, it can be held that A. was convicted of a criminal offence punishable by imprisonment for one year or longer.
Will you kindly furnish me with an Opinion on this question at your earliest convenience.
Under section 8A of the Immigration Act 1901—1925 the Minister may make an order for the deportation of any person, not born in Australia, who has been convicted, within three years of his arrival in Australia, of a criminal offence punishable by imprisonment for one year or longer.
Under section 2 of the Queensland Vagrants Act 1851, any person convicted of having no visible means of support may be committed by any Justice of the Peace to gaol for any time not exceeding two years.
By the amending Vagrants Act of 1861, however, a Justice of the Peace may not, by summary conviction or order, commit any person under the Vagrants Act 1851 to imprisonment for any term exceeding six months.
It appears therefore that A. might have been indicted in another court, and when on conviction would have been punishable by imprisonment for one year or longer; but the court before which he was summarily convicted had no power to impose a longer sentence than 6 months.
Section 8 of the Immigration Act, being a penal section, should be construed strictly; and in my opinion ‘punishable’, in the context relating to conviction for an offence, means punishable by the court which convicted.
I am therefore of opinion that, on the facts stated, A. is not liable to deportation under section 8A of the Immigration Act.
[Vol. 23, p. 579]