Opinion Number. 1566

Subject

Passports PASSPORTS: NATURE OF A PASSPORT: ISSUE OF PASSPORTS: AUTHORITY OF MINISTER TO WITHHOLD PASSPORT: EXERCISE OF DISCRETION: grounds for declining to ask the assistance of another Government in connexion with the journey contemplated

Key Legislation

Passports Act 1920 ss 2, 3(1), 4, 6, 10

Date
Client
The Secretary, Department of the Interior

The Secretary, Department of the Interior has forwarded the following memorandum for advice:

The Collector of Customs, Fremantle, reports that the Minister’s authority to withhold a passport has been challenged recently in two instances by persons who wished to leave Australia before the usual enquiries had been completed and who threatened legal proceedings to test the Minister’s authority.

Sub-section 1 of section 3 of the Passports Act 1920 reads —

Subject to this Act, no person who is, or appears to an officer to be, more than sixteen years of age, shall embark at any place in the Commonwealth for a journey to any place beyond the Commonwealth unless—

  1. he is the holder of a passport or other document authorizing his departure; and
  2. his passport has been visaed or endorsed in the prescribed manner for that journey, and the visa or endorsement has not been cancelled.
  3. Penalty: Fifty pounds, or imprisonment for three months.

The Minister is specially empowered by the Act to—

  1. exempt any person from the provisions of the above quoted sub-section.
  2. cancel any passport or permit or pass to leave the Commonwealth issued by or under the authority of the Government of the Commonwealth.
  3. cancel the visa or endorsement on any passport.

but he is not specifically empowered to withhold a passport.

The Passport Regulations provide that passports may be issued only to British subjects located in the Commonwealth at the date of application, and prescribe the form or application to be completed by the applicants.

They also provide that any applicant for a passport who is a British subject by naturalization should produce his certificate for inspection and that an applicant who already holds a passport or who has lost a passport should account for the old document before being granted a fresh passport. Apart from these provisions, the Regulations do not limit the issue of passports except that in the case of applicants under sixteen years of age they are required to furnish letters of consent from their parents or guardians.

From time to time passports have been refused for various reasons such as are indicated below:

  1. Single girl wanting to accompany man on trip abroad.
  2. Insufficiency of funds and possibility of becoming stranded abroad.
  3. Persons wishing to go to USA to join certain religious organisations.
  4. Single girl desiring to proceed abroad for purpose of being married against wishes of her parents.
  5. Persons wishing to proceed abroad without consent of husband or wife.
  6. Persons wanted by police or concerned in legal proceedings.
  7. Persons of weak mentality.

In 1915 the Passport Regulations then in operation were amended by adding a Regulation reading as under—

The issue of a passport is a matter within the discretion of the Minister for External Affairs, who may require applicants to furnish evidence on any subject regarding which he deems it necessary to be informed, and may require such evidence to be furnished by statutory declaration or otherwise, and may authorise or withhold the issue of a passport without assigning any reason therefor.

Those Regulations have since been cancelled and others made under the Passports Act 1920, but a paragraph to the same effect is still included in the Notes printed on the back of the passport application forms, a specimen of which is submitted herewith.

In view of the query which has been raised, will you kindly advise whether, in cases where the prescribed form of application for a passport has been properly completed and the fee paid, the Minister for the Interior has the powers set out in paragraph 8 of the Notes on the back of the application form and, if not, whether it would be in order to amend the existing Regulations by inserting a new Regulation in the terms of paragraph 8 of the Notes on the back of the application form.

The Passports Act 1920 does not contain any provisions specifically conferring power on any authority to issue or withhold the issue of passports. In the definition of ‘passport’ in section 2 reference is made to a passport which was issued or renewed by, or on behalf of, the Government of the country of which the person to whom it relates is a citizen or subject. Again in section 6, reference is made to the cancellation by the Minister of the Department controlling the issue of passports of a passport or permit or pass to leave the Commonwealth, issued by or under the authority of the Government of the Commonwealth. Section 10 authorises the making of regulations prescribing, inter alia, the fees to be charged in respect of the issue of passports. The Passports Regulations prescribe the forms of application to be filled in by applicants for passports and the form of passports but express provision is not made for any person either to grant or to withhold passports. It would seem that, according to Form K, a passport is signed by the Governor-General. The practice, however, is to have the signature of the Governor-General printed on the passport and the question of the issue or refusal of a passport is not, in fact, considered by the Governor-General.

But, although there is no express provision with regard to the issue of a passport, I think that the whole scheme of the Act contemplates an issuing authority whether already constituted or to be constituted by administrative act or in virtue of an appropriate regulation made under section 10 of the Act. Further, I think that, notwithstanding that the signature of the Governor-General appears upon a passport, the issuing authority is, in fact, the Minister for the Interior or an officer acting on his behalf.

The question has arisen whether the Minister has a discretion in the matter of the issue of passports.

Before answering this question, it is necessary to consider whether the purpose of the Act is to prohibit free intercourse between the Commonwealth and other countries or merely to insist on some evidence, namely, that contained in a passport, being in the possession of an intending traveller in order that his movements in countries outside the Commonwealth and his re-entry into the Commonwealth may be facilitated.

To better understand this purpose, it is desirable to consider what a passport, as contemplated in the Act, really is. Section 2 of the Act does not help in this regard. In Rex v. Brailsford [1905] 2 K.B. 730 at p. 745, Lord Alverstone C.J. referred to the nature of a British passport in the following terms:

It is a document issued in the name of the Sovereign, on the responsibility of a Minister of the Crown, to a named individual, intended to be presented to the Governments of foreign nations, and to be used for that individual’s protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office, in an official document, vouches the respectability of the person named.

It will be noticed that, according to this description, a British passport is primarily intended for use in countries other than Great Britain and is not in the nature of a permit to leave England.

The material part of a passport issued by the Commonwealth reads as follows:

I, the Governor-General of the Commonwealth of Australia, request, in the name of His Britannic Majesty, all those whom it may concern, to allow the bearer to pass freely without let or hindrance, and to afford him every assistance and protection of which he may stand in need.

(Seal of Department of the Interior)       (Isaac A. Isaacs, Governor-General)

Prima facie, a Commonwealth passport is not a licence to leave the Commonwealth but a document of safe-conduct in countries outside the Commonwealth. Section 4 of the Passports Act lends some support to the view that the object of a passport is to facilitate travel in foreign countries. Under that section, the necessity for passports is waived in the case of persons travelling to any country which does not require British or its own subjects to be in possession of passports when proceeding from the Commonwealth to that country.

Having regard to those considerations as to the nature of a passport, it would seem that the purpose of the Act is not to prohibit intercourse with countries overseas but to insist on, as a prerequisite to embarkation, the possession of a passport. In other words, the Act, in the absence of clear and unmistakable language to the contrary, does not take away the freedom of a resident of the Commonwealth to depart therefrom. This is in conformity with what Starke J. said in The King v. Mahony, 46 C.L.R. 131, with reference to another right of the subject, namely, the right to work. On page 140, Starke J. said:

The Courts do not attribute an intention in the Legislature to interfere with the rights and liberties of the citizens of this country to work when, where and for whom they please unless that intention is expressed in clear and unmistakable language. The Acts make it penal to work without a licence, and therefore they contemplate a duty in the licensing officer to grant licences. It is, no doubt, a discretionary duty; but to say that it is an arbitrary power, not to be exercised ‘on any definite principle, but haphazard, on the theory, presumably, that such matters are better kept outside the control of the Courts, and left to the uncontrolled discretion of the Executive and its servants,’ is far to extravagant an intention to attribute to the Legislature.

Applying this reasoning to the present case, there is no intention expressed in the Act to interfere with the free movement of the subject; the Act merely penalises persons embarking for a journey to any place beyond the Commonwealth without a passport or other document authorizing the departure and, therefore, the Act contemplates a duty in the authority charged with the function of issuing passports or permits to grant a passport or permit. It is a discretionary duty, but it is a discretion which, in the case of a passport, should only be exercised adversely to the applicant in accordance with some principles determinable from the scope of the Act or from the very nature of the passport itself. Thus, it would be in order for the issuing authority to refuse to issue a passport in those cases in which the issue thereof to the particular person concerned would be inconsistent with the request to another Government to afford him every assistance, etc. (as in the terms of the passport) e.g. where the applicant was a known criminal. But, although it is within that authority’s discretion to refuse a passport in certain cases, I think that the proper authority would be required to issue a permit or other document authorizing departure from the Commonwealth except in those cases where the refusal could be justified on legal grounds as, for instance, in the case of a person for whose arrest a warrant has been issued.

With regard to paragraph 8 of the Notes on the back of the application form, it is stated that the Minister ‘may authorise or withhold the issue of a passport without assigning any reason therefore’. If the words underlined are intended to convey that the Minister has an unfettered discretion to issue or withhold the issue of a passport just as he pleases, then I think that it is necessary for some variation to be made of the terms of such paragraph. Because of the fact that the words are capable of the inference that the Minister’s discretion is unfettered, it would be preferable, in my view, if the words ‘may authorise or withhold the issue of a passport without assigning any reason therefore’ were omitted altogether.

Subject to the omission of the words just mentioned, the powers of the issuing authority, that is to say, of the Minister are, in my opinion, as stated in paragraph 8 of the Notes but it is to be understood that the discretion to issue or withhold the issue of a passport does not entitle the Minister to refuse to issue a passport except in cases where there are in fact grounds for declining to ask the assistance of another Government in connexion with the journey contemplated. In the absence of any specification of such grounds in the relevant legislation, it is not possible to state what grounds would probably be held to be sufficient by a Court. It is only possible to say that, in my opinion, they must consist in matters of fact relating to the character of the person who seeks the support of the Commonwealth Government in order to obtain assistance and protection abroad, or relating to the object of the journey or possibly relating to the countries which it is proposed to visit. It is conceivable that the Government might not be prepared to invite the assistance of a certain other Government—but this question does not normally arise in time of peace.

[Vol. 27, p. 494]