AND ANOTHER Constitutional Law (Cth.)-Legislative powers of Commonwealth Parliament-Aliens
-Defence-Immigration-War-time refugees-Deportation" Issue" of cer- tificate of exemption Purported to issue "-Extension of period of certificate of exemption-Constitution (63 &64 Vict. c. 12), 8. 51 (vi.), (xix.), (xxvii.)- MELBOURNE, Immigration Act 1901-1949 (No. 17 of 1901-No. 31 of 1949), 8. 4-Immigration Act 1949 (No. 31 of 1949), 88. 3, 4-War-time Refugees Removal Act 1949 (No. 32 of 1949).
The War-time Refugees Removal Act 1949 is a valid exercise of the legislative powers of the Commonwealth Parliament.
So held, by Latham C.J., McTiernan and Webb JJ., and as to SS. 4, 5 and 7 of the Act, by Dixon J. So held, also, by Rich and Williams JJ., SO far as the Act applies to the class of persons defined in par. a of S. 4 (1), but not in its application to the classes defined in pars. b and c.
The provisions of the Constitution which support the legislation are :- Per Latham C.J. and McTiernan J.: Section 51 (vi.) (defence), (xix.) (aliens), (xxvii.) (immigration). Per Rich and Williams JJ.: As to the class defined in S. 4 (1) (a) of the Act--s. 51 (xix.). Per Dixon J.: It being conceded that the category of persons described in S. 4 (1) (a) of the Act is one with respect- to which S. 51 (xix.) confers power to legislate, the material provisions of
the Act are supported-as to that category-by S. 51 (xix.), and-as to the categories in S. 4 (1) (b) and (c)-by S. 51 (vi.). Per Webb J.: As to the whole Act-s. 51 (xxvii.): also, SO far as it applies to aliens-s. 51 (xix.); SO far as it applies to persons who have not become members of the Australian community-s. 51 (vi.).
Section 7 of the War-time Refugees Removal Act 1949 does not confer a power to keep a deportee in custody for an unlimited period without relation to the purpose of deportation.
So held, by the whole Court. The Immigration Act 1949 is a valid exercise of the power of the Common- wealth Parliament under S. 51 (xxvii.) of the Constitution to legislate with respect…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Koon Wing Lau v Calwell [1949] HCA 65
Case
[1949] HCA 65
Decision Date
CaseChat Overview and Summary
The case involved multiple plaintiffs, including Koon Wing Lau and Tsui Yue Shing, who sought to prevent their deportation from Australia. The dispute centred on the validity of the *War-time Refugees Removal Act 1949* and the *Immigration Act 1949*. The plaintiffs challenged these statutes, arguing they were beyond the legislative powers of the Commonwealth Parliament, or alternatively, that the legislation did not apply to them. The proceedings included actions seeking declarations and applications for writs of habeas corpus.
The High Court was required to determine several key legal issues. These included whether the *War-time Refugees Removal Act 1949* was a valid exercise of the Commonwealth Parliament's legislative powers, specifically under sections 51(vi) (defence), 51(xix) (aliens), and 51(xxvii) (immigration) of the Constitution. The Court also had to consider the validity of specific sections of this Act, particularly section 7, concerning the detention of deportees. Furthermore, the Court was asked to determine the validity of the *Immigration Act 1949*, and specifically section 4, in relation to the constitutional power over immigration. Finally, the Court had to decide whether the "issue" or "purported issue" of a certificate of exemption, and the extension of such certificates, required delivery or notification to the person concerned.
The Court held that the *War-time Refugees Removal Act 1949* was a valid exercise of Commonwealth legislative power, with various judges finding support in different constitutional provisions, including defence, aliens, and immigration powers. However, the Court unanimously held that section 7 of the Act did not confer a power to detain a deportee for an unlimited period without relation to the purpose of deportation. The *Immigration Act 1949* was also found to be a valid exercise of the immigration power. The Court further determined that the action of an authorised officer in writing and signing a certificate of exemption without delivering it to the person was not an "issue" or "purported issue" of a certificate within the meaning of section 4 of the *Immigration Act 1949*. Regarding the extension of exemption certificates under section 4(2) of the *Immigration Act 1901-1949*, a majority of the Court held that this could be done without delivery or notification to the person, though some judges dissented on this point and on the ability to extend an expired certificate.