[On 7 April 1920 the Secretary, Department of Home and Territories, addressed to the Secretary, Attorney-Gtneral's Department, a memorandum which, formal parts omitted, read]:

With regard to Mr A.B.C.D. referred to in the annexed file will you be so good as to say, for the information of the Minister, if the following is a correct statement of the law.

There are two laws dealing with the admission of persons to Australia, the Immigration Act 1901-1912 and the War Precautions (Passports) Regulations 1916, under the War Precautions Act 1914-1916.

Mr D. having been born in Australia is not an immigrant within the meaning of the Immigration Act, and consequently, were he to present himself at an Australian port, could not be debarred from admission by application of the provisions of that Act.

Under the Passports Regulations 1916 admission to Australia is refused to persons not in the possession of a passport. Such passport in the case of Mr D., he being a British subject now resident in the United States, would have to be issued by a British diplomatic authority in the United States authorising his travel to Australia. The issue of such passport is entirely within the discretion of the diplomatic consular authorities in the United States.

While the War Precautions Act remains in force the provisions of regulations issued under it are valid and binding on all persons who come to Australia irrespective of whether they are immigrants or not, but when the War Precautions Act ceases to operate, the Immigration Act, even if supplemented by the existing provisions of the Passports Regulations referring to admission to Australia, will not warrant the exclusion of Mr D., as that Act can only apply to immigrants and, as before stated, Mr D. is not an immigrant within the meaning of the law.

Referring to your letter of 7 April 1920, relative to Mr A.B.C.D., I desire to inform you that, in my opinion, your memorandum is a correct statement of the law.

The War Precautions Regulations, however, if enacted in permanent form would be rather in the nature of substantive legislation under a distinct power of the Constitution than a supplementing of the immigration law.

This memorandum should, however, not be taken as implying that the defence power even in time of peace does not extend to the enactment of a law specifically authorising the exclusion from Australia of persons whose entry into Australia is considered dangerous to the safety and defence of the Commonwealth, even though that entry could not be prevented under the immigration power.

[Vol. 16, p. 462]