Ah You v Gleeson

[1930] HCA 25

43 CLR 589

RESPONDENT. INFORMANT,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF Immigration-Powers of Commonwealth Parliament-Incidental power-Prohibited

immigrantProsecution-Evidence-Burdet of proof-Averment in information Jurisdictional fact-Effect of legislation-The Constitution (63 &64 Vict. c. 12), sec. 51 (XXVII.), (xxxIX.)-Immigration Restriction Act 1901-1908 (No. 17 of 1901-No. - 25 of 1908), sec. 5-Immigration Act 1901-1925 (No. 17 Aug. 18, 19, of 1901-No. 7 of 1925), sec. 5.

The appellant, an alleged prohibited immigrant, entered the Commonwealth not later than the year 1906 and the dictation test, which he failed to pass, was

43 CLR 590

applied to him in the year 1930. No substantive evidence was adduced that the appellant had evaded an officer, the only evidence of this fact being the averment thereof contained in the information.

Held, (1) that sec. 5 (1) (a) of the Immigration Act 1901-1925 only operates and applies to immigrants who enter Australia after the date of its enactment

Williamson v. Ah On, (1926) 39 C.L.R. 95, applied); and (2) that the legislation relevant to the present circumstances was that contained in sec. 5 (1) of the Immigration Restriction Act 1901-1908; that under that provision the dictation test could only be applied to an immigrant who has evaded an officer: that the only evidence of evasion was the averment contained in the information; that no presumption arose from such averment, because the Immigration Restriction Act 1901-1908 contained no provisions such as are found in the Immigration Act 1901-1925, sec. 5 (3) and (3A), which are limited in their application to prosecutions under sub-secs. 1 and 2 of sec. 5 of the 1901-1925 Act, and which also only relate to immigrants the date of whose alleged evasion of an officer is after the date of the passing of the Immigration Act 1924 (Williamson v. Ah On, (1926) 39 C.L.R. 95, considered).

APPEAL by special leave.

The respondent, James Gleeson, Inspector of Customs in the State of Victoria, laid an information against the appellant, Ah You, in the Court of Petty Sessions at Melbourne, under the provisions of the Immigration Act 1901-1925 alleging that the appellant on the 21st day of March 1930 at Melbourne in the said

State being an immigrant who on the 21st day of March 1930 was required and failed to pass the dictation test within the meaning of the Immigration Act 1901-1925 of the Commonwealth of Australia in contravention of the said Immigration Act and the said informant avers that the said defendant is an immigrant who has evaded an officer." The appellant was convicted in the Court of Petty Sessions and sentenced to six months' imprison- ment. He appealed to the Court of General Sessions, where the conviction was affirmed; the learned Chairman of General Sessions having found that the appellant was resident in Australia in 1906 and that he had remained here since that date. It was not clear from the evidence whether the Chairman arrived at a finding upon the date of the appellant's entry into Australia or not. The evidence, however, indicated that he did so about the year 1906, after the establishment of the Commonwealth and the passing of the Immigration Restriction Act 1901. No evidence

43 CLR 591

was adduced that the appellant had evaded an officer, the only H. evidence of this fact relied upon being the averment in the informa- tion. The other questions of fact raised before the Court of General Sessions are not material to the decision of the High Court in this

From the decision of the Court of General Sessions the appellant now, by special leave, appealed to the High Court.

Shelton, for the appellant. The Chairman of General Sessions should, on the evidence, have found that the appellant came to Australia prior to 1901. Even if the passenger list of the boat by which he said he came to Australia was admissible, it affected the evidence of only two of the witnesses. No application was made by the prosecution to call rebutting evidence under sec. 5 (3B) of the Immigration Act 1901-1925. The onus on the issue as to the application of Federal power is on the party asserting it (Attorney- General for the Commonwealth of Australia v. Colonial Sugar Refining Co. 1 ). The onus under the Act does not apply unless and until the onus under the Constitution is discharged. The issue was: Did the appellant arrive before 1901 ? The Act cannot be invoked as to that. The learned Judge wrongly treated the onus as being on the defence. The passenger list of the boat was not admissible under sec. 5 (3c) of the Immigration Act. It purports to be made under the Marine Act 1890 or the Chinese Act 1890, and is not an official document of the Commonwealth or of a State (Acts Interpreta- tion Act 1904, sec. 70 (o) ). Richardson v. Mellish 2 depended upon its particular circumstances and is distinguishable. In Williamson V. Ah On 3 Isaacs J. assumed, rather than decided, that a passenger list as such was not evidence of its contents. Sec. 51 of the Constitu- tion in nearly every instance deals with power over subject matter rather than over persons or classes of persons. Significant exceptions are as to aliens and "the people of any race." The power over immigration is general, and is not confined to aliens or to any particular race. The power is as to "immigration and emigration," that is, it is over the subject matter of immigration and not over immigrants. The relevant time is the time of the inquiry and not

1(1914) A.C. 237, at p. 256 ; 2(1824) 2 Bing. 229 : 130 E.R. 294. (1913) 17 C.L.R. 644, at p. 655. 3(1926) 39 C.L.R. 95, at p. 110. 43 CLR 592

the date of arrival. Assuming that Williamson v. Ah On 1 is a

binding authority, sec. 5 on its proper construction should be read "Any immigrant (within the power of immigration) who" &. When SO read the onus is on the prosecution to prove that the power applies, but once that is proved the onus as to compliance with the Acts is on the defendant. In 1930 the appellant was not an immigrant within the power, and the charge failed in limine and had become exhausted (Potter v. Minahan 2; Ex parte Walsh and Johnson; In re Yates 3 ). [Counsel also referred to The King v. Macfarlane; Ex parte O'Flanagan and O'Kelly 4; and Donohoe V. Wong Sau 5.]

Ham K.C. (with him Dixon Hearder), for the respondent. The notice of appeal to General Sessions shows that the dispute there was whether the appellant immigrated to Australia prior to 1901 and that the Act did not apply to him because he had arrived prior to the Act coming into operation. That being the position in the Court of General Sessions, the appellant undertook to establish that he came into Australia in 1895. Against that the Crown put in evidence the appellant's statement that he arrived in 1906, and thus made a prima facie case. The affirmative case which the appellant put up in the Court of General Sessions was disbelieved by the Chairman of General Sessions for the reasons he gave in his judgment. Quite apart from the evidentiary sections in the Immigration Act, the Crown case shows that the appellant arrived about 1903 or 1906. The Chairman of General Sessions discards the evidence that he came out in 1895, and therefore there is nothing left but the conclusion that he came out about 1903 or 1906. The passenger list of the boat he said he arrived by was produced at the Chairman's suggestion, and both parties admitted the document without objection. The document proves itself and is evidence of its contents because it is a public document. The document complies with the requirements of the Chinese Act 1890 and of the Marine Act 1890, secs. 209, 212, 220. Williamson v. Ah On (1) has decided that the averment section (Immigration Act 1901-1925,

1(1926) 39 C.L.R. 95. 2(1908) 7 C.L.R. 277, at p. 291. 3(1925) 37 C.L.R. 36, at p. 137. 4(1923) 32 C.L.R. 518. 5(1925) 36 C.L.R. 404. 43 CLR 593

sec. 5 3 was valid as casting on the defendant the onus of H. C. proof. That is the very matter which the case does decide. That provision speaks as when the case is in Court, and not as at the time of arrival of the immigrant (Williamson v. Ah On 1 ). The position has been, from the commencement of the Immigration Act, that the mere evasion of an officer does not constitute an offence, but evading an officer together with failure to pass the dictation test constitutes the offence. Sec. 5 of the Immigration Act should be read as "any accused person who being an immigrant at the time of his entry into the Commonwealth fails to pass a dictation test will be guilty of an offence." The words

any immigrant who evades an officer" merely describe the person who may be guilty of an offence.

He is an immigrant and an evading immigrant and is charged under the 1901-1925 Act, and the only allegations which require to be proved have been proved. There was no new element introduced into the offence by the later Acts. The only new element introduced was the method of proving the offence (Williamson v. Ah On 2 ). As part of the offence was the failure to pass the dictation test, the offence was not completed until after the passing of the Act of 1925, and the information was laid under the correct Act. [Counsel referred to Gabriel v. Ah Mook (3) Potter v. Minahan 4; Ex parte Walsh and Johnson In re Yates 5; and The King V. Macfarlane; Ex parte O'Flanagan and O'Kelly 6.]

Shelton, in reply, referred to Caledonian Collieries Ltd. V. Australasian Coal and Shale Employees' Federation 7 as to the onus of proof under the Constitution.

Cur. adv. vult.

THE COURT delivered the following written judgment :- On information laid by Detective Inspector Gleeson, the defendant Ah You, was charged for that being an immigrant he was on 21st March 1930 required and failed to pass the dictation test within

3(1924) 34 C.L.R. 591. 1(1926) 39 C.L.R., at pp. 108, 109, 2(1926) 39 C.L.R., at p. 103. 4(1908) 7 C.L.R., at p. 308. 5(1925) 37 C.L.R., at p. 64. 6(1923) 32 C.L.R. 518. 7(1930) 42 C.L.R. 558. 43 CLR 594

the meaning of the Immigration Act 1901-1925, and was a prohibited

immigrant found within the Commonwealth in contravention of the Act. And the information contains the following averment "And the said informant avers that the said defendant is an immigrant who has evaded an officer." Ah You was convicted and sentenced to six months' imprisonment, and on appeal to the Court of General Sessions this conviction was upheld. An appeal has been brought by special leave to this Court.

The learned Chairman of the Court of General Sessions found that Ah You was resident in Australia in 1906, and had remained here since that date. On the evidence, we are of opinion that this finding cannot be disturbed. It is not clear whether the Chairman arrived at a finding upon the question when Ah You entered the Common- wealth. The evidence given in the case suggests that he did SO about the year 1906, and after the establishment of the Common- wealth and the passing of the Immigration Restriction Act of 1901. If so, the argument that the constitutional power to make laws for the good government of the Commonwealth with respect to immigration and emigration did not extend to persons who were members of the Australian community before the establishment of the Commonwealth, would be irrelevant. Ah You would be an immigrant into the Commonwealth. We proceed to consider the case upon this assumption.

Upon this footing, if the provisions of secs. 7 and 5 of the Immigra- tion Act 1901-1925 govern this case, the decision of this Court in Williamson v. Ah On 1 clearly supports the conviction. Now sec. 7 provides that every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of the Act shall be guilty of an offence. But was Ah You a prohibited immigrant The answer depends upon the relevant provisions of the Act affecting his case. In Williamson v. Ah On 2 it is said that sec. 5 (1) (a) was in force when Ah On entered the Common- wealth, and that that was the relevant provision affecting his case. This statement seems to be a slip, for the section, in that form, did not come into force until 1924 (No. 47 of 1924), whereas Ah On entered in 1911. But we adhere to the opinion expressed in

1(1926) 39 C.L.R. 95. 2(1926) 39 C.L.R., see p. 129. 43 CLR 595

Williamson v. Ah On 1 that sec. 5 (1) (a), as it now stands in the H. C. OF reprint of the Immigration Act 1901-1925 only operates and applies to immigrants who enter Australia after the date of its enactment. If Ah You entered Australia between 1901 and 1906, then sec. 5 (1) (a), as it now stands, does not govern his case. On this view, the relevant provision governing his case may be found in the reprint of the Immigration Restriction Act 1901-1908 (Sess. Vol. No. VII., 1908). It is as follows: " Sec. 5 (1) Any immigrant who evades an officer or who enters the Commonwealth at any place where no officer is stationed may if at any time thereafter he is found within the Commonwealth be required to pass the dictation test, and shall if he fails to do SO be deemed to be a prohibited immigrant offending against this Act. (2) Any immigrant may at any time within one year after he has entered the Commonwealth be required to pass the dictation test, and shall if he fails to do SO be deemed a prohibited immigrant offending against this Act. (3) In any prosecution under the last preceding sub-section, the averment of the prosecutor contained in the information that the defendant has entered the Commonwealth within one year before his failing to pass the dictation test shall be deemed to be proved in the absence of proof to the contrary." Sub-sec. 3 was omitted in 1910, and a new sub-section inserted in lieu thereof. Sec. 5 was otherwise amended in 1910, 1912, and 1920 but these amendments are not material to the matter now in hand. In 1924 (1924 No. 47) the section was amended by omitting sub-sec. 1 and the new sub-sec. 3 thereof, and inserting in their stead the provisions now appearing in the 1901-1925 reprint of the Immigration Act. Thus the former provisions were repealed, but the repeal does not affect their previous operation, or anything duly done or suffered under the provisions SO repealed (Acts Interpretation Act, sec. 8). If Ah You were a prohibited immigrant under the repealed provisions, then no doubt he would be caught by the provisions of sec. 7 of the Immigration Act 1901-1925, for sub-sec. 1 of that section has been continuously in force since the passing of the original Immigration Act in 1901. Returning now to the Immigration Restriction Act 1901-1908, was Ah You a prohibited immigrant by virtue of the provisions then in force ? The only

1(1926) 39 C.L.R., at p. 129. 43 CLR 596

A. provision that can be relied upon is sec. 5 (1), which enacts that any

immigrant who evades an officer may, if at any time thereafter he is found within the Commonwealth, be required to pass the dictation test, and shall if he fails to do so, be deemed a prohibited immigrant offending against the Act. The defendant here certainly failed to pass a dictation test. But that test can only be applied, under the 1901-1908 Acts, to an immigrant who has evaded an officer, and no evidence has been adduced that Ah You evaded an officer: the only evidence relied upon is the averment in the information, and no presumption arises from it, because the 1901-1908 Acts contain no provisions such as are found in the 1901-1925 Acts, sec. 5, sub-secs. 3 and 3A, and because the provisions of sub-secs. 3 and 3A are expressly confined, by the words ' the last two preceding sub-sections," to prosecutions under sub-secs. 1 and 2 of sec. 5 of those Acts, and only relate, as already stated, to immigrants the date of whose alleged evasion of an officer is after the date of the passing of the 1924 Act.

The result is that the conviction of Ah You should be quashed.

Appeal allowed. Order of the Court of General

Sessions set aside. Conviction quashed. Discharge Ah You from custody under the aforesaid conviction. The respondent to pay the costs of Ah You in this Court and in the Courts below. Solicitor for the appellant, L. W. Hartnett. Solicitor for the respondent, W. H. Sharwood, Crown Solicitor for the Commonwealth.