IMMIGRATION; HOUSINGWHETHER CONSTRUCTION OF HOSTELS IN PORT KEMBLA – WOLLONGONG AREA FOR CERTAIN DISPLACED PERSONS WOULD BE FOR A ‘PURPOSE OF THE COMMONWEALTH’: APPROPRIATION FOR HOUSING FOR DISPLACED PERSONS ADMITTED TO AUSTRALIA: AUSTRALIA’S OBLIGATIONS UNDER AGREEMENT WITH THE PREPARATORY COMMISSION OF THE INTERNATIONAL REFUGEE ORGANIZATION MADE 21 JULY 1947: SCOPE OF THE COMMONWEALTH PARLIAMENT’S POWER TO LEGISLATE WITH RESPECT TO IMMIGRATION: MEANING OF ‘PURPOSES OF THE COMMONWEALTH’ IN s 81 OF CONSTITUTION
CONSTITUTION ss 51(xxvii), 81, 83: Agreement between the Commonwealth and the Preparatory Commission of the International Refugee Organization made 21 July 1947 cll 5, 8
I refer to Mr. Welch’s recent telephone enquiry from this Department as to the power of the Commonwealth to construct hostels for certain displaced persons from Europe, to be employed in heavy industries in the Port Kembla – Wollongong Area.
(2) In the light of information from your own Department and from the Departments of Immigration and the Treasury as to the circumstances generally under which the displaced persons would be employed at Port Kembla, I am of opinion that the erection of the proposed hostels would be for a purpose of the Commonwealth, and that the funds therefor could be validly appropriated under sections 81 and 83 of the Constitution.
(3) I understand from the Department of Immigration that the displaced persons in question were brought to Australia under an Agreement between the Commonwealth and the Preparatory Commission of the International Refugee Organization, dated 21st July, 1947. Under clause 5 of the Agreement the Commonwealth accepts ‘full responsibility for receiving, forwarding and the settling or placing of immigrants in employment in Australia’. Under clause 8 the Commonwealth undertakes to provide ‘regular employment for all persons coming under this Agreement’. It (the Commonwealth) requires that workers agree to remain for at least one year in the employment accepted. These displaced persons have been admitted to Australia under certificates of exemption for two years under the Immigration Act.
(4) With regard to the ‘immigration’ power, the following views of Mr. Justice Starke in The King v. Macfarlane, 32 C.L.R. 518 at 582 are particularly in point:
I cannot subscribe to the view that a law with respect to immigration either ends when the person immigrating has entered Australia, or, for the matter of that, begins when he sets out on his voyage to Australia. On the contrary, many laws could, I should think, be supported under the power, which have no direct concern with the act of immigrating. Thus Acts for the purposes of encouraging immigration might make provision for the suitable housing or settlement of immigrants in advance of the acts of immigrating, or for the assistance, in various forms, of persons who had completed the act of immigrating.
(5) What Starke J. says in this passage may, I think, be taken as fairly representative of the extent of the ‘immigration’ power, and as really decisive on the present matter. In these circumstances it is not necessary to consider whether, and how far, support could be obtained also from other powers such as those with respect to aliens and external affairs.
(6) If Parliament could (as I think) expressly make general provision for the erection of these hostels, there can be no doubt that the necessary appropriation of moneys would be for ‘a purpose of the Commonwealth’ within the meaning of sections 81 and 83. Pending an express appropriation by law, the funds could, I assume, be met from the Treasurer’s Advance.
[Vol. 38, p. 49]