Opinion Number. 1861



Key Legislation

CONSTITUTION s 51(vi), (xix), (xxvii): IMMIGRATION ACT 1901 ss 4, 5(2)


As to those two draft Bills, I am asked to advise—

(a)  Whether the Immigration Bill is valid.

(b)  Whether the War-Time Refugees Removal Bill is valid as to both classes of persons, and, if it is considered to be valid as to only one class, whether the Bill is severable.

(c)  On both Bills generally.

The prints of the draft Bills given to me are those of 3rd June.

Both Bills have been prepared to meet the position created by the interpretation placed by the High Court on certain provisions of the Immigration Act 1901–1940 in the case of O’Keefe v. Calwell, 1949 Argus L.R. 381.1


In the O’Keefe case the plaintiff, a Dutch subject, had escaped from the Japanese forces in the East Indies, and with her husband was brought to Australia in 1942. Her husband returned to the East Indies and was killed. The plaintiff remained in Australia, and in January 1947 (within five years of her entry) obtained a certificate of exemption under the Immigration Act, the operation of which certificate was extended to December, 1948. She married a British subject, and in February 1949 the Minister, purporting to act under sec. 4 of the Immigration Act, declared her a prohibited immigrant, and notice was given her to leave the Commonwealth. She brought action to restrain proceedings under the order and notice.

The defendant relied solely on subsecs. (1) and (4) of sec. 4 and subsec. (2.) of sec. 5 of the Immigration Act, contending that the plaintiff at the time of obtaining the certificate, was a person liable to be prohibited under this Act from … remaining in the Commonwealth’, within the meaning of sec. 4(1) of the Act, inasmuch as she was still exposed to the risk of being required to pass the dictation test.

For the plaintiff, it was contended that she was not so liable, as she had not been required to pass the dictation test. It was also contended—

(1)  that she never was an ‘immigrant’ within the meaning of the Act, and that her entry was not ‘Immigration’ within the meaning of the Act or the Constitution; on the ground mainly that her entry was involuntary, or at least independent of her will;

(2)   that, assuming she had originally been an immigrant, she was no longer one, having become a member of the Australian community, to whom the restrictions of the Act no longer applied; and

(3)  that sec. 4 (4) of the Act was ultra vires, because the declaration of the Minister was an exercise of the judicial power.

The Court (Rich, McTiernan, Williams & Webb JJ., Latham, C.J. and Dixon J. dissenting), gave judgment for the plaintiff, and granted an injunction restraining the Minister and his officers from taking the threatened action to deport the plaintiff.

The reported reasons of the Justices show that the decision turned wholly on the interpretation of the words ‘Liable to be prohibited’ in sec. 4(1) of the Act; the opinion of the majority on this point making it unnecessary for them to decide the other points raised on behalf of the plaintiff—though three of the four Justices forming the majority did express opinions on some of these points.

Follows a short analysis of the judgments:

Latham C.J. thought that the action should be dismissed. He held that the plaintiff, up to the time of obtaining the certificate of exception, was ‘a person liable to be prohibited’ from remaining in the Commonwealth. He also held:

That the fact of her becoming a British subject after entry did not remove her from the operation of the Immigration Act, and that she would have been subject to that Act even if she had been a British subject at the time of entry;

That even assuming that she had become an ‘Australian citizen’ under the Nationality and Citizenship Act 1949, that would not affect the operation of the Immigration Act;

That there was no ground for holding that the plaintiff at the time of entry was not an immigrant, or that the constitutional power to make laws with respect to immigration did not extend to such action after immigration as was prescribed by the sections in question;

That, having been permitted to remain in Australia only under a temporary permit, she could not become a member of the community and so cease to be an immigrant, or cease to be subject to control after the immigration power;

That the declaration of the Minister was not an exercise of the judicial power.

Dixon J. also thought that the action should be dismissed. He agreed with the Chief Justice’s interpretation of sec. 4(1), and that the section so construed empowered the Minister to make the declaration enabling steps to be taken for her deportation failing her voluntary departure. He also held that the Minister’s declaration was not an exercise of the judicial power, and said—

That even without the guidance of decided cases, he would have regarded the constitutional power as ample justification for sec. 4 in its application to the plaintiff;

That in view of the series of decided cases as to the constitutional power, it was impossible to do other than treat the power as extending to all movements of strangers into the Commonwealth, irrespective of their intention or state of mind; and

That the distinction contended or, that plaintiff came to Australia involuntarily, did not take the case out of the principle, and that the objection that sec. 4 was constitutionally incapable of operating on the plaintiff, failed.

The four Justices forming the majority all based their decision on their interpretation of sec. 4(1), holding that the plaintiff was not a person ‘Liable to be prohibited’ under sec. 4(1) and therefore that the certificate of exemption was not authorised by law, and could not be the foundation of deportation proceedings.

Rich J. expressed no opinion as to any other points.

McTiernan J. entertained no doubt that the immigration power would extend to making a law to expel the plaintiff from the country.

William J. said that it was within the immigration power to fix a reasonable probation period during which immigrants should continue to be subject to the risk of becoming prohibited immigrants and not be allowed to acquire immunity as members of the community; and that the period of five years fixed by sec. 5(2) could not be said to be unreasonable.

Webb, J. expressed the opinion that the plaintiff’s entry into the Commonwealth made her subject to the Immigration Act, and that she might lawfully have been required to pass the dictation test before the grant of the certificate of exemption.

From the above analysis of the judgments in the O’Keefe case, it is clear that that case does not affect the authority of any of the series of cases as to the constitutional power of the Commonwealth Parliament with respect to immigration.

Coming now to the question of the validity of the Immigration Bill; there can be no question of invalidity as regards clause 3(a), embodying a new form of sec. 4(1) of the Act. In itself, it merely authorises the issue of a certificate of exemption, and exempts the person named in the certificate from the restrictions of the Act during the currency of the certificate.

The critical part of clause 3 is (b), embodying new sec. 4(4). This refers back to sec. 4(1), so that the ‘person named’ is either a prohibited immigrant or an immigrant (of less than five years’ standing) who may be required to pass the dictation test. In either case he is an ‘immigrant’, and therefore a person within the class connoted by that term, whatever the limits of that class may be. This is unavoidable, however the section may be framed; to be valid, it must, either by its express terms or by a ‘reading down’ construction, be kept within the limits of the constitutional power.

According to the authorities, one limitation of the words ‘immigration’ and ‘immigrant’ is that they exclude a person whose entry is a ‘home-coming.’ Att.-Gen. v. Sheung, 4 C.L.R. 949; Potter v. Hinshen, 7 C.L.R. 277. The exact scope of this limitation is not yet settled, but it need not trouble us; these cases are only occasional.

Another limitation is that the entry must be since the establishment of the Commonwealth. That need not trouble us either.

The only other limitation that I know of is found in the answer to the question: ‘When, if ever, does an immigrant cease to be an immigrant?’ Isaacs J., in R. v. Macfarlane, 32 C.L.R. 518, and again in Exp. Walsh & Johnson, 37 C.L.R. 36, enunciated the maximum ‘Once an immigrant, always an immigrant’. He elaborated the case for this very thoroughly, and it is certainly arguable; but I think it is very unlikely to be accepted by the High Court. It has, so far, received no support from any other Justice. And Exp. Walsh & Johnson is a direct authority to the contrary. That was in 1925. Walsh had come to Australia in 1893—and so was excepted in any case. Johnson, who entered as an alien in 1910, was naturalised in 1913—unchallenged for 15 years after entry. Both were held to be members of the community.

It is likely that a large number of war-time immigrants will be able to put up strong cases for having become members of the community, unless it can be established:

(1)  that there is power to legislate for a reasonable period of ‘probation’ before an immigrant can claim to have become a member of the community;

(2)  that five years from entry is not an unreasonable time;

(3)  that this power extends to cases where the immigrant was not a prohibited immigrant ab initio, but was still (within five years from entry) exposed to the risk of being declared a prohibited immigrant; and

(4)  that an immigrant cannot attain the metamorphosis into an ex-immigrant whilst he is under a certificate of exemption—even where the certificate was, under the O’Keefe decision, invalid when issued, and validated later as provided for in this Bill.

Proposition (1) is the simplest, and in my opinion it should be answered in the affirmative. There is no suggestion in any of the cases that membership of the community can be acquired otherwise than by original membership or by identification with the community over a considerable length of time. And in my opinion the view put forward by the Chief Justice in O’Keefe’s case is sound: that acquiring membership is not a unilateral affair—that it involves acceptance by the community. I think it follows that the community, which controls the right of immigration, has at least some power, under the heading of ‘immigration’, to control acceptance of the immigrant as a member. That, I think, was in the mind of Isaacs J. as the logical basis of his maxim ‘Once an immigrant always an immigrant’; and whilst I do not think that the Court (judging from its decisions and various dicta) will accept that extreme application of the principle I think that the principle of ‘bilaterality’ is sound.

Proposition (2), that a period of five years is not unreasonable, is one not of principle but of degree. When we consider the importance of the status of membership, and the difficulty of ascertaining promptly the fitness of a candidate, in all physical, mental, moral, sanitary and economic aspects, a realistic view must be that such a length of time is not unreasonable. It is significant that this view is implicit in the dictum of McTiernan J. (obiter of course, but quite definite) that the immigration power would extend to the making of a law to expel Mrs. O’Keefe from the country. It is explicit in the dicta of Williams J. quoted above (again obiter but definite and obviously carefully considered) that the Commonwealth Parliament could fix a reasonable period of probation, and that the period provided in the Bill was not unreasonable. And of course it is explicit in the judgments of Latham C.J. and Dixon J.—which on this point are not dissenting judgments. I may add that in the comparable case of naturalization of aliens, a probationary term of two or three or even I think five years is not infrequent. Proposition (2) therefore, I should answer in the affirmative, as a matter of my own opinion, and also as one that appears to have support of at least four Justices of the High Court, as well as the authority of decisions of the Court—e.g. R. v. Macfarlane.2

Proposition (3) seems to be sustained by the reasoning upon Propositions (1) and (2), and I would answer it also in the affirmative.

The second part of Proposition (4) is the only one as to which I find some difficulty. Where the certificate is valid ab initio, I agree with Latham C.J. that it is hard to see how an immigrant can acquire membership of the community when he is here under a temporary exemption only—is really under a deferred sentence of deportation. But where what purports to be a certificate of exemption had at the time of issue no legal effect, it does at first sight seem plausible that the person named in it might before its validation have acquired a status that would render him immune from the immigration power, and incapable of being reached by legislation, retrospective or prospective. But I think there are flaws in this conclusion. The Act, in sec. 5(2) and elsewhere, contains clear indication of intention to keep an immigrant on probation, though the procedure for giving effect to this turns out, on examination, to be defective. The Minister has taken the steps that appeared to be indicated by the Act to preserve that status of probation. Though this certificate is found to have been ineffective to confer exemption or to be the foundation of proceedings for deportation, it was a clear motive that she was unwelcome. The plenary power of the Commonwealth Parliament, within the scope of the subject-matter, extends to making retrospective laws—even ex post facto laws making that an offence which was not an offence when committed; R. v. Kidman, 20 C.L.R. 423; and if the Parliament can retrospectively impose criminal liability, even where the consequence is to affect, retrospectively, civil status. I incline strongly to that opinion, though not without some doubt. If I am right, then the validity of the subsection is complete. If I am wrong, then the defect is one of constitutional power, and nothing that the draftsman can do will cure it. There is nothing for it but to go ahead and take the risk.

As to the form of subsec. (1), I prefer the form as it stands in the Bill to that suggested by Melbourne counsel in their first memorandum. I think the emphasis is rightly on the power of the Minister to issue the certificate—which is what the O’Keefe decision denies. And the exempting effect of the certificate does not seem to me to be left to inference; it is sufficiently expressed in the concluding words of the section. There also seem to be some tautology in saying ‘may enter into and remain in the Commonwealth without being subject to any of the provisions of this Act restraining entry into and stay in the Commonwealth’. (By the way, the copy of the memorandum given to me omits, in the draft, the words ‘while the certificate remains in force’.) 


I have no doubt as to the validity of the provisions of the Bill relating to aliens. They are clearly covered by the constitutional power relating to naturalization and aliens. Robtelmes v. Brenan, 4 C.L.R. 395, cited with approval in several subsequent cases.

I also think that the provision as to persons who during the period of hostilities entered Australia as a place of refuge is sufficiently covered by the defence power. It seems to come within the class of cases mentioned in the judgment of the Court in the Petrol Rationing case (as reported in the press) as particular consequences of war which fall within the defence power.3

But I have the gravest doubt as to the validity of the ‘dragnet’ provision as to the persons who entered the Commonwealth during hostilities ‘by reason of any other circumstances attributable to the existence of hostilities’. Those vague and general words would certainly include many cases where the connection with defence would be remote and even undiscernible. My doubts are increased by the decision in the Petrol Rationing case.

I have no doubt however that all three provisions are severable; and I understand that (b)(i) and (ii) are to be separated into (b) and (c) to mark the severability more emphatically.

I think however that the ‘dragnet’ provision as it stands will be of little or no use. The only way I can think of to help its chances of having some validity is to add, after the words ‘attributable to the existence of hostilities’, the words ‘and related’ (or, ? ‘directly related’) ‘to the defence of the Commonwealth’. This would give the Court an excuse to ‘read it down’ to the extent necessary.

1 (1949) 77 CLR 261.

2 [1923] HCA 39; (1923) 32 CLR 518.

3 R v Foster [1949] HCA 16; (1949) 79 CLR 43.