Opinion Number. 520



Key Legislation

CONSTITUTION, ss. 51 (xxvii), (xxviii), 107,108,109

The Minister for External Affairs

On 19 March 1913 the Premier of Queensland forwarded to the Prime Minister copy of a communication which had been received from the Commissioner of Police, Brisbane, relative to the character of certain Russians who had arrived in Queensland apparently without passports, and asked that the Commonwealth Government should in future exclude such immigrants.

Enquiry from the Russian Consulate disclosed the fact that by Russian law every Russian subject leaving Russia for a foreign country has to provide himself with a foreign passport.

On 7 May the Prime Minister informed the Premier that the Customs authorities had been instructed to ascertain from Russian emigrants from the East whether they were provided with passports, and, in all cases where a passport was not produced, to advise the senior officer of police at the port of landing to that effect.

On 18 July the Premier advised the Prime Minister that consequent on the latter's intimation contained in the above letter of 7 May, he had after satisfying himself as to the legality of his action, instructed the Commissioner of Police to prevent the landing in Queensland of any Russian passenger arriving, without a passport, after 1 August, by any steamer from an Eastern'Asiatic seaport.

The Minister for External Affairs desires my advice-

  1. as to the power of the State to prevent the landing of those who are not prohibited immigrants under Commonwealth legislation; and

  2. whether any amendment of that legislation is necessary, and would be effec-tive, to enable the Commonwealth to prevent the State from excluding the immigrants.

Prior to the inception of federation, the Privy Council laid it down, in the case of Musgrovev. Toy [1891] A.C. 272, that, apart from legislation, an alien has not a legal right, enforceable by action, to enter British territory. In delivering the judgment of the Board in that case, the Lord Chancellor added (p. 282) that-

Circumstances may occur in which the refusal to permit an alien to land might be such an interference with international comity as would properly give rise to diplomatic re-monstrance from the country of which he was a native, but it is quite another thing to assert that an alien excluded from any part of Her Majesty's dominions by the executive government there, can maintain an action in a British Court, and raise such questions as were argued before their Lordships on the present appeal-whether the proper officer for giving or refusing access to the country has been duly authorised by his own colonial government, whether the colonial government has received sufficient delegated authority from the Crown to exercise the authority which the Crown had a right to exercise through the colonial government if properly communicated to it, and whether the Crown has the right without Parliamentary authority to exclude an alien. Their Lordships cannot assent to the proposition that an alien refused permission to enter British territory can, in an action in a British Court, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Par-liament, and the relations of this country to her self-governing colonies.

Such being the state of the law on the subject at the inception of federation the question arises whether either the mere fact of federation, or the fact that the Consti-tution has conferred upon the Commonwealth certain powers respecting immigration and the influx of criminals, and that the Parliament of the Commonwealth has legislated in pursuance of the powers so conferred, has modified, and if so to what extent, the 'police power' of the States.

In the recent case of R. v. Smithers; Ex parte Benson 19 A.L.R. 209, it was pointed out by Griffith C.J., at p. 211, that the continuance of the police power to its full extent, after federation, is inconsistent with the elementary notion of a Commonwealth, and that the former power of the States to exclude any persons whom they might think un-desirable inhabitants is cut down to some extent by the mere fact of federation. His Honour proceeded:

The extent to which it is cut down, and the line of demarcation which should be held to separate a justifiable from an unjustifiable exclusion, may be hard to determine, and yet it may be possible to say on which side of it a particular case lies. The basis of the dis-crimination, so far as it does not depend upon positive enactment, must be the necessity of the continuance of the power . . . to make laws'designed for the promotion of pub-lic order, safety, or morals'.

These remarks of His Honour were particularly directed, in the case under notice, to the question of the power of one of the States of the Commonwealth to exclude a per-son from another State of the Commonwealth. In my opinion, however, the reasoning of the learned Chief Justice would cover also the case of the exclusion by a State of per-sons coming to Australia from abroad.

I am therefore of opinion that the mere fact of federation has had the effect of cut-ting down the police power of the States to what is necessary for the promotion of public order, safety or morals.

Dealing now with the powers conferred on the Commonwealth by the Constitution, and the exercise which the Commonwealth Parliament has made of such powers, it may be pointed out that by the Constitution, section 51, the Commonwealth Parlia-ment has power to legislate for the peace, order, and good government of the Common-wealth with respect to:

  1. Immigration and emigration; and

  2. The influx of criminals.

In my opinion neither of these powers is necessarily exclusive; and therefore, unless Commonwealth legislation has covered the whole field-and in my opinion it has not in fact covered the whole field-it is still open to the States by virtue of their police powers-either by legislation, or, possibly, by executive act-to prohibit the immi-gration to their respective States, of persons whose entry into the Commonwealth is not prohibited by Commonwealth law.

As to whether the Commonwealth Parliament can by legislation prevent the States, or any of them, from excluding immigrants, I am of opinion that the Commonwealth Parliament can do so. In the United States it was held, in the case of Gibbons v. Ogden 9 Wheat. 1, at p. 210, that when a law of a State, passed in pursuance of its police power, comes into collision with an Act of Congress, passed in pursuance of the Consti-tution, the law of the State must yield. In my opinion the decision in that case would be followed in the construction of the Commonwealth Constitution. If, therefore, the Par-liament of the Commonwealth legislates exhaustively upon the subject of the ad-mission of aliens to the Commonwealth or their exclusion from the Commonwealth any legislation of the State inconsistent with such Commonwealth legislation would be overridden by the latter.

I am therefore of opinion-

  1. that in the absence of Commonwealth legislation, covering the whole field of im-migration, the State has power to prevent the landing of those who are not prohibited immigrants under Commonwealth legislation, but that such power is limited by the existence of some necessity for the exercise of defensive pre-cautions; and

  2. that the Commonwealth Parliament has power by legislation to prevent the States from imposing additional restrictions upon immigrants.

[Vol. 11, p. 437]