Opinion Number. 1852

Subject

IMMIGRATIONWHETHER CERTAIN PERSONS MAY BE DEPORTED TO PAPUA OR NEW GUINEA: MEANING OF ‘THE COMMONWEALTH’: WHETHER AN ORDER DEPORTING A PERSON TO PAPUA OR NEW GUINEA IS AN ORDER DEPORTING THE PERSON FROM COMMONWEALTH

Key Legislation

CONSTITUTION covering cll 3, 6: ACTS INTERPRETATION ACT 1901 s 17: IMMIGRATION ACT 1901 s 4

Date
Client
The Secretary, Department of Immigration

I refer to your memorandum dated 4th February, 1947, requesting advice whether persons whose certificates of exemption under section 4 of the Immigration Act have expired could, with the agreement of the Department of External Territories, be deported to New Guinea or Papua pursuant to an order under sub-section (5) of that section. In furnishing advice, I shall assume that in any particular case a certificate of exemption has been validly issued and I shall, of course, confine myself to the consideration of the legal interpretation of the sub-section mentioned.

(2)  Sub-section (5) does not refer to the country to which a person may be deported and the advice is sought, in effect, whether an order deporting a person to New Guinea or Papua would be an order deporting the persons from the Commonwealth.

(3)  The meaning of the word ‘Commonwealth’ has not been authoritatively determined for all purposes of Commonwealth law and in ascertaining its meaning much would depend on the Act in which it is used. By section 17 of the Acts Interpretation Act, ‘the Commonwealth’ means in any Act (unless the contrary intention appears) the Commonwealth of Australia. In ascertaining the meaning of Commonwealth of Australia reference should be made to covering clauses 3 and 6 of the Commonwealth of Australia Constitution Act. The word has, under long standing practice, been usually taken to refer only to the States and those mainland Territories which formerly were part of the States but not to the external Territories under the authority of the Commonwealth. In accordance with this view, I think that, in the absence of any statutory definition, the word ‘Commonwealth’ in the Immigration Act does not include New Guinea or Papua. But there have always been different views on this question and I have to admit both that the point is arguable and that the established view of the Government is therefore not free from doubt.

(4)  I may add that the immigration laws of New Guinea and Papua seem to have been enacted on the assumption that these Territories are not part of the Commonwealth, and that those laws, together with the Commonwealth Act, form a legislative scheme to cover immigration into the Commonwealth and the Territories mentioned.

[Vol. 38, p. 262]