Opinion Number. 1888



Key Legislation

IMMIGRATION ACT 1901 s 4: WAR-TIME REFUGEES REMOVAL ACT 1949 ss 5, 6, 7, 9, 10

The Secretary, Department of Immigration

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

Pursuant to section 5 of the abovementioned Act, the Minister has power to issue deportation orders at any time within twelve months from the twelfth day of July, 1949.

(2)  As it is intended to give individual consideration to all the cases which come within the scope of the Act, it is unlikely that they will all be dealt with before the last day upon which deportation orders can be made.

(3)  It is desired to retain the power to deport any persons who come within the scope of the Act if, on consideration of their cases, they should prove to be undesirable residents of Australia, or if, at some time in the future they should be found to manifest undesirable tendencies.

(4)  Having regard to the position as set out above, this Department proposes to adopt the following course, namely:

(a)  To consider as many cases as possible before the 12th of July, 1950;

(b)  To issue deportation orders in respect of all those who, it is considered, should not be permitted to remain in Australia;

(c)  To invite all those who, it is considered, should be permitted to remain to apply for Certificates of Exemption under Section 4 of the Immigration Act 1901–1949, and to issue Certificates, probably for a period of five years, to all who make application therefor;

(d)  In the event of there being any cases concerning which it has not been possible to reach any firm decision by the 11th of July 1950, or of there being any cases in which the invitation to apply for a Certificate of Exemption has not been accepted, to issue deportation orders in every such case, together with a direction that the deportee be not kept in custody (under section 7(2) of the War-time Refugees Removal Act). Consideration of all cases not dealt with by the 11th of July will be proceeded with, and the deportation orders will be enforced in the case of undesirables, while those who are to be allowed to remain will be given the opportunity of applying for Certificates of Exemption within a specified time, and in default of such application will be forthwith deported.

(5)  An opinion is requested as to whether there are any and what legal objections to the proposed procedure outlined above; and in particular an opinion upon the following points, namely:

(a)  Does Section 7(2) mean that if the Minister makes a deportation order and directs that the deportee be not kept in custody, the Minister may require that security be given for the departure of such person, or does the provision as to the giving of security apply only in the case of deportees who have been taken into custody?

(b)  If a deportation order is issued under Section 5 and the Minister directs under Section 7(2) that the deportee be not kept in custody, will such order remain in force indefinitely, or will it lapse or become inoperative if not enforced within a reasonable time?

(c)  If it is considered that a deportation order will remain in force indefinitely, can the deportee named therein apply to the Court to have the same set aside, quashed or declared to be inoperative on the ground that there has been unreasonable delay in enforcing it?

(d)  Is it necessary or tactically desirable that the fact that a deportation order has been made should be communicated to the deportee?

(e)  If a deportation order is made, and that fact is not communicated to the deportee, will the existence of the order operate so as to debar the deportee from becoming a member of the Australian community, and thus passing beyond the immigration power under the supposed rule in Ex parte Walsh & Johnson (1925, 37 C.L.R. 36)?

(f)  If a deportation order is made and the fact that it has been made is communicated to the deportee, will such order then operate as a bar against absorption into the community?.

2.  My answers to the specific questions asked, categorically stated, are—

(a)  The provision in section 7(2) as to security applies to deportees in respect of whom the Minister has directed that they be not kept in custody, as well as to deportees who have been taken into custody.

(b)  It must be assumed that a deportation order will not remain in force indefinitely, but will become inoperative if not carried out within a reasonable time.

(c)  Yes. In circumstances set out a deportee could test by habeas corpus at the point of deportation the Minister’s power to deport.

(d)  Yes. The question scarcely arises under this Act because—

(i)  if instructions be given for his apprehension, a deportee will naturally get notice as soon as he is located;

(ii)  if a direction be given that he is not to be kept in custody, the arrangements for giving security necessarily involve notice to the deportee.

(e)  Having regard to the answers given to (c) and (d), this question scarcely arises.

(f)  Subject to the answers given to (b) and (d), a deportee could not cease to be liable to deportation by reason of any action on his part during the currency of a valid deportation order—

(i)  while being sought for apprehension under the Act; or

(ii)  while remaining at liberty, but under security for departure.

(3)  The basis for these views will become apparent after a brief consideration of the purpose of the Act. In general, the Act is a short-term measure, giving to the Minister a specifically limited time to decide whether or not a war-time refugee is to be deported, and then requiring his deportation, not indeed within a specified but within a reasonable time. The Act, as a defence measure, is to be regarded as winding-up certain war-time matters.

(4)  The Title to the Act declares that it is an Act ‘to provide for the Removal from Australia of certain Persons who entered Australia during the Period of Hostilities’. Section 5 empowers the Minister, at any time within twelve months after the commencement of the Act (i.e. after 12th July, 1949), to make an order for the deportation of a person to whom the Act applies, and that person is to be deported in accordance with the Act. The persons to whom the Act applies are defined—the period of hostilities (as defined) being a necessary element in the description of these persons; and a person for whose deportation the Minister has made an order under section 5 becomes a ‘deportee’ within the meaning of sections 6 to 10. These latter sections may be taken to be the provisions in accordance with which, as required by section 5, a deportee is to be deported.

(5)  Section 6 requires the masters of vessels and the commanders of aircraft to receive deportees for conveyance to the port or airport specified in a notice given by the Minister or an authorized officer. Section 7, which relates to the custody of a deportee pending deportation, is of particular relevance to the question of the action to be taken by the Minister following on the making of an order for deportation. Under sub-section (1) of that section, a deportee may, pending his deportation, be kept in such custody as the Minister or an officer directs. Under sub-section (2) the Minister may direct that a deportee be not kept in custody, or be released from custody, if the prescribed security is given that the deportee will leave Australia within such time as is specified in the memorandum of security.

(6)  It might be argued that as the provisions of section 7 are expressed in terms enabling the Minister to do certain things, the Minister is not obliged to adopt any one of the alternative courses of action open to him under that section. My strong view however is that, upon the making of a deportation order, the Act requires that the deportee shall be deported; and it is inconsistent with the scheme of the Act as a whole to suppose that, despite the making of a deportation order, the deportee can merely be left free to remain at large in Australia.

(7)  Under section 9 a deportee may be arrested without warrant; and under section 10 a deportee may not be concealed, received or harboured by any person. An arrest will not take place automatically upon the making of a deportation order. Presumably, however, an instruction for the apprehension of a deportee will be given either by the Minister or his Department. But no warrant will be required to authorize the carrying out of the administrative decision. The point I make therefore is that, in my opinion, the Act impliedly contemplates action on the making of a deportation order, either to arrest the deportee or to direct that he be not kept in custody if security is given.

(8)  Accordingly, the Minister cannot validly issue a deportation order, take no steps either to apprehend the deportee or to require security as a condition of leaving him at liberty, and then at some unspecified future time put the order into operation against him.

(9)  On the other hand, if the Minister should decide to issue a deportation order now in respect of a person who, he is satisfied, should be deported, the fact that, because the deportee cannot immediately be located or apprehended, the order cannot be communicated to him immediately would not, in my view, affect the validity of the order. Some action to apprehend the deportee would, however, be necessary on the part of your Department, such as giving immediate instructions to the police to apprehend him, in order to displace any possible inference that the order was not issued for the purposes of the Act.

(10)  In the light of these general considerations, the reasons for my answers in paragraph 2 will have become apparent and it is, perhaps, unnecessary for me to elaborate these answers further. There remains to be considered the question whether there are any objections to the procedure which it is proposed to adopt in relation, in particular, to war-time refugees who are not deported before 12th July next.

(11)  The courses indicated in sub-paragraphs (a), (b) and (c) of paragraph 4 of the memorandum for advice appear to be legally unobjectionable, assuming of course that the persons referred to in sub-paragraph (c) are persons to whom section 4 of the Immigration Act 1901–1949 applies.

(12)  The course proposed in sub-paragraph (d) is directed towards those cases in which it will not be possible to reach a final decision before 12th July, 1950, or in which the invitation to apply for a certificate of exemption has not been acted on. In all these cases the proposal is, as I understand it, to issue a deportation order, together with a direction that the deportee be not kept in custody, the Minister thus gaining the necessary time to make a final decision.

(13)  There are, I think, legal dangers in course (d), arising from the very fact that the purpose is to enable the Minister to have further time within which to consider whether a deportee should in truth be deported or not. The danger is that a deportation order made in these circumstances might be held on challenge not to have been made for the purposes contemplated by the Act at all. I would think for instance that even one or two instances in which a person in respect of whom a deportation order was made in the circumstances mentioned in sub-paragraph (d) was nevertheless subsequently allowed to remain under a certificate of exemption might well suggest to some other deportee the possibility of challenging on these grounds an order which the Minister was proposing to carry out against him. The mere invitation to a ‘deportee’ to apply for a certificate of exemption would give colour to a suggestion that deportation orders were being issued, not for the purpose of dealing with persons under the Act, but for the general purpose of retaining control over them. How real would be the danger of successful challenge would perhaps depend largely on the number of cases involved, and the length of time required in order to dispose of them finally.

(14)  Accordingly, if it be not practicable to make a final decision before 12th July next as to whether a particular person should be deported under the War-time Refugees Removal Act, it seems to me that if the person is not otherwise covered by the Immigration Act, and it is desired that the Minister should have an opportunity to consider whether he should be deported or not, the only really safe course would be legislative action to extend for a limited period the time within which action may be taken under the War-time Refugees Removal Act. I do not think a short extension of time would be in any way open to doubt on the score of constitutional validity.

[Vol. 39, p. 167]