Minister for Immigration, Local Government & Ethnic Affairs v Sciascia, G.K

Re: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
And: GRAHAM KAHIRA SCIASCIA
No. WA G55 of 1991
FED No. 563
Migration
103 ALR 307
(1991) 31 FCR 364, (1991) 24 ALD 11

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Burchett(2) and Lee(2) JJ.

CATCHWORDS

Migration - deportation - construction of amendments with retroactive effect - Migration Act 1958 s.20(1)(d)(iii).

Acts Interpretation Act 1901 s.15AB

Commonwealth of Australia Constitution Act 1900 ss.51(xxxvii), 51(xxxviii)

Immigration Act 1971 (UK)

Immigration Restriction Act 1901

Migration Act 1958 ss.14, 16, 20, 59, 60; sub-ss.14(2), 20(15), 59(2); sub-paras.16(1)(c)(ii), 16(1)(c)(iii), 20(1)(d)(ii), 20(1)(d)(iii)

Migration Act 1979

Migration Amendment Act 1979 s.10

Migration Amendment Act 1983

Migration Legislation Amendment Act 1989 ss.6, 7, 35

The Annotated Constitution of the Australian Commonwealth (1901)

Rules of the Federal Court O.29, r.2

House of Representatives Hansard Vol. 114

In re Baron Kensington. Earl of Longford v Baron Kensington (1902) 1 Ch 203

Re Bolton; Ex parte Beane (1987) 162 CLR 514

Potter v Minahan (1908) 7 CLR 277

Khera v Secretary of State for the Home Department (Reg. v Secretary of State for the Home Department, Ex parte Khawaja) (1984) AC 74

Mere Akuhata-Brown v Chesley (Gallop J., unreported, 20 March 1981)

Reg v Melville (1956) 73 WN (NSW) 579

Samuels v Hurford, Minister of State for Immigration and Ethnic Affairs (Woodward J., unreported, 1 August 1985)

HEARING

PERTH

#DATE 13:9:1991

Counsel for the Appellant: Mr P.R. MacLiver

Solicitors for the Appellant: Australian Government Solicitor

Counsel for the Respondent: Mr R.B. Choudree

Solicitors for the Respondent: Aboriginal Legal Service of Western

Australia (Inc)

ORDER

The appeal be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The facts and the relevant legislation in this matter are set out in the judgment to be delivered by Burchett and Lee JJ. which I have had the opportunity of reading. I regret that I have reached the conclusion, contrary to their opinion, that this appeal should be allowed.

The essential facts are that the respondent came to Australia in 1975 from New Zealand. He has remained in Australia ever since. For reasons to be found in the judgment of the learned primary Judge ((1991) 101 ALR 321 at p 326) he did not require an entry permit. The respondent came from New Zealand. He had been born there on 7 July 1945. Prior to his entry into Australia he had been convicted in New Zealand of a number of offences. These included offences which were "crimes" within the meaning of subsec. 20(15) of the Migration Act 1958 ("the Act"). The crimes and sentences imposed in respect thereof for which the respondent had been convicted were as follows:-

(a) 30 July 1967 - conviction for burglary - sentenced to imprisonment for six months commencing on 30 July 1967.

(b) 1 July 1969 - convictions on two charges of common assault and one charge of theft. Sentenced to three months' imprisonment on each conviction, each sentence to commence on 1 July 1969.

(c) 30 January 1970 - convicted of one charge of burglary and two of theft. Sentenced to imprisonment for six months beginning on 30 January 1970 for the conviction for burglary and sentenced to two cumulative periods of imprisonment of three months and two months respectively in respect of the two convictions for theft, the first of these sentences to begin on 30 January 1970.

It is to be observed that the accumulated sentences add up to one year and three months - six months for the 1967 conviction, three months for the 1969 convictions and six months for the 1970 convictions.
The migration legislation which applies in relation to the respondent has at all times been the Migration Act 1958, but as the other judgment shows, it has taken different forms over the years. It took its present form from amendments made to the Act by the Migration Legislation Amendment Act 1989 which came into force on 20 December 1989. The provision is in s.20 of the Act. The comparable provisions of earlier legislation were to be found in s.16 thereof. Section 20 of the current Act, so far as it is relevant, provides as follows:-

"20(1) This sub-section applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if:

...

(d) when the person entered Australia, the person was:

...

(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;

(iii) a person who had been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year."

The contest between the parties is whether the provisions of subpara. (1)(d)(iii) apply to the respondent. In other words, is he, within the meaning of that provision, a person who has been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year? Looking only at the language of that provision it can be seen that the respondent is a person who has been convicted of two or more crimes and has been sentenced to periods of imprisonment which total at least one year. But is he correctly described as a person who has been sentenced to imprisonment for a period "totalling" at least one year? As a matter of the ordinary use of language I am of opinion that he is such a person. The opposing view which was adopted by the learned primary Judge is that he is not because of the use of the word "period" in the singular. The problem I have with that approach is that it does not sufficiently take into account the use of the word "totalling". In ordinary language it seems to me to be correct to say that, before he arrived in Australia, the respondent had been sentenced to a total of 15 months in prison. It is equally true to say that he had by then been sentenced to a total period of 15 months' imprisonment.
If I say that I have spent a good deal of my life in another country at various times and somebody asks me for how long I have been away altogether, it will be a correct use of language to say that I have been overseas for a total period of, say, three years out of the last 20. The dictionary suggests that "period" is usually understood to mean a finite time the length of which can be ascertained by reference to a commencing date and a finishing date however approximately expressed. But it is the word "totalling" which has to be accommodated and I think its presence in the subparagraph, notwithstanding the use of the word "period" in the singular leads to the conclusion that the ordinary use of language suggests that the period referred to is an accumulation of two or more spans of time.
As both the judgment of the primary Judge and that of my brothers show, it is not, however, appropriate to determine this case without some regard to the form of the earlier legislation and to some general principles of statutory construction. At the time the respondent came to Australia, s.16 of the Act, so far as it is relevant, was as follows:-

"16(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia as an immigrant:

...

(c) at the time of entry is or was a person of any of the following descriptions, namely: ...

(ii) a person who has been convicted of a crime and sentenced to imprisonment for one year or more; ...

that person shall, notwithstanding section ten of this Act be deemed to be a prohibited immigrant unless he is the holder of an entry permit endorsed with a statement that the officer granting that permit recognises him to be a person referred to in this sub-section."

Section 16 was amended by the Migration Act 1979 and later by the Migration Amendment Act 1983. The amendments made by the 1979 amending Act were the critical ones; those made in 1983, at least in relation to the provision now in question, did not change in any substantial way the wording which had been adopted in 1979. After the 1983 amendments took effect, s.16 of the Act, so far as it is relevant, was in the following form:-

"16(1) Where, after the commencement of this Part or before the commencement of this Part but after the commencement of the Immigration Restriction Act 1901, a person who enters or entered Australia is not, or was not, at the time of that entry, an Australian citizen and who ...

(c) at the time of entry is or was a person of any of the following descriptions, namely ...

(ii) a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year;

(iii) a person who has been convicted of two or more crimes and sentenced to imprisonment for periods aggregating not less than one year; ...

that person shall, notwithstanding section 10, be deemed to be a prohibited non-citizen unless he is the holder of an entry permit endorsed with a statement that the person granting that permit recognises him to be a person referred to in this sub-section."

In summary, the provisions which affected the respondent after his arrival in Australia in 1975 were:-

(a) A person who has been convicted of a crime and sentenced to imprisonment for one year or more. That was the provision which applied until 1979.

(b) A person who has been convicted of two or more crimes and sentenced to imprisonment for periods aggregating not less than one year. This was the provision that applied from 1979 until 1989.

(c) A person who has been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year. This provision has been in force since 1989 and is the provision in question in this appeal.

I am in agreement with the primary Judge in concluding that the respondent's criminal record plainly came within the language of the 1979/1983 provision. There the word "periods" rather than the word "period" is used together with the word "aggregating". I pause to say that, whilst the ordinary use of language will permit the expression "a period totalling" to indicate a period made up by accumulating discontinuous spans of time, once one uses the word "aggregating", one needs to use the word "periods". In other words use of the singular in conjunction with the word "aggregating" will not be an appropriate use of language. A further matter to be noted is that, if one were not to give to the 1979/1983 provision the meaning given it by the primary Judge, the new subpara. 16(1)(c)(iii) would not have added anything to the former comparable provision, i.e. the pre-1979 subpara. 16(1)(c)(ii), the provisions of which were carried over into the latter part of the new subpara. 16(1)(c)(ii).
It was the submission of counsel for the appellant that the adoption of the word "totalling" and the discarding of the word "aggregating" provided the reason why the word "periods" had been singularised in the 1989 amendment. I think there is force in that submission.
During the argument reference was made to the second reading speech and explanatory memorandum circulated in relation to the Bill by which the 1989 amending Act was introduced. In the explanatory memorandum it is said that the departure from the language of the former s.16 was for reasons of style only. I agree with the primary Judge that that statement cannot be given any conclusive effect. It is the words of the statute which must be construed. But the words do indicate that it was not the intention to make any substantive change in the provision. As I have said, the language of the new provision is capable of a meaning synonymous with that of the former provision.
Since the decision was reserved, I have endeavoured to seek assistance from the second reading speech made when the Bill for the 1979 amending Act was introduced into Parliament. It is necessary only to refer to the proceedings of the Senate - see Parliamentary Debates (Hansard) 1979 for the proceedings of the Senate on 8 June 1979, pp 2934 et seq. I have not obtained any assistance from anything said in that speech. No explanatory memorandum was circulated with the Bill but there is reference in the second reading speech to the fact that a number of provisions in the Bill arose out of the recommendations of a management review which had reported on its investigation of immigration policy and procedures in July 1978. I have endeavoured to obtain a copy of that review by requesting it from counsel for the appellant. A report was produced as being the only report which might possibly be the one referred to in the second reading speech. I doubt whether it is, but, in any event, there is nothing in it which throws any light on what was intended by the relevant part of the 1979 amending Act. In all these circumstances I conclude that no assistance is to be obtained from any second reading speech or explanatory memorandum except to the limited extent indicated in relation to the 1989 explanatory memorandum.
It is then necessary to take into account that both the 1979 and 1989 amending Acts were plainly intended to have retrospective effect. They were expressed so as to disclose a clear legislative intent to affect existing rights and entitlements, particularly the entitlement of some citizens of this country to remain here. Furthermore the provisions, directly or indirectly, may affect the liberty of persons to whom they apply. These are factors which tend to suggest that the provisions in question should be the subject of a strict construction.
But there are other considerations. The power of the Commonwealth Parliament under the Constitution to legislate in respect of the matters provided for in the Act derives from the provisions of placita (xxxvii) and (xxviii) of s.51 which empower the Parliament to make laws with respect to immigration and emigration and the influx of criminals respectively. These areas are a matter of substantial public importance. They were plainly perceived as such by the framers of the Constitution. Reference to Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), shows (p 111) that "the prevention of the influx of criminals" was one of the five matters proposed by Sir Samuel Griffith in 1883 which should desirably be dealt with by a Federal Australasian Council; see also pp 629-631. There can be few more important subject matters of public interest than the make up of the population of a country. Parliament was clearly intended to have power to legislate in respect of that matter and to legislate to control the persons or categories of persons who may lawfully come to this country and who may lawfully remain here and the terms and conditions which should apply in relation to those who enter Australia or who, although already here, have come from another country. When there is added to these considerations the consideration that the particular matter of disqualification which is in question is criminal conduct, it becomes manifest that the legislation in question deals with a matter of high public interest.
I would not suggest that the legislation be given a beneficial construction, but I think that the matter to which I have last referred tends to balance the other considerations of retrospectivity and personal liberty and warrants the conclusion that the approach to construction which is applicable in this case is a neutral one which concentrates upon the words which Parliament has used and attempts to give them their natural and ordinary meaning. There may be some ambiguity about the words of s.20 of the Act, although I think there is little room for it if one gives the word "totalling" proper effect. If one does not, one will not give to the provision any different meaning from that which it would have if it said, "a person ... sentenced to imprisonment for a period of at least one year", and omitted the word "totalling" altogether. That is precisely the language used in part of subpara. 20(1)(d)(ii). That circumstance itself provides a strong indication that the construction advocated by counsel for the respondent should be rejected.
The learned primary Judge perceived this difficulty. It was his view that subpara. 20(1)(d)(iii) was directed to one period of imprisonment resulting from multiple convictions (101 ALR at p 327). I am not sure that I fully understand what his Honour meant by those words. It would seem to me that he had in mind a person being sentenced on the one day to an accumulation of periods of imprisonment which together totalled more than 12 months. These might be for crimes arising out of the same transaction or the one series of similar transactions, for example, a series of house breakings or motor vehicle thefts.
But it would also apply, apparently, to cases where a person was before the Court for a number of unconnected crimes committed at different times and entirely unrelated to each other. Thus someone who had been sought by the police for some years might have been sentenced on the one day for a burglary committed in 1985, an assault committed in 1987 and a false pretence committed in 1990. The sentences would be likely to be cumulative and would usually involve a total period of imprisonment of more than 12 months. The subparagraph would apply. If, however, the same person had been dealt with in 1985, 1987 and 1990 shortly after the commission of each of the crimes, the likelihood is that he would have been sentenced to terms of imprisonment each of which would have expired before his arrest and conviction for the succeeding offences; ex hypothesi he would have had to have been at liberty to commit the succeeding offences. The degree of criminality involved in the two examples would be precisely the same. Yet the subparagraph, on the construction which is supported before us, would not apply. The fact that that is so strongly suggests to me that the limited operation given to the words in question by the learned primary Judge is, with respect, not correct.
It follows that in my opinion the change in language adopted in the 1989 Act is indeed accounted for by a change in style and that there is no difference of substance between a statement that a person has been convicted of two or more crimes and sentenced to imprisonment for periods aggregating not less than one year and a statement that a person has been convicted of two or more crimes and sentenced to imprisonment for a period totalling at least one year.
In the result I would allow the appeal, set aside the orders made by the learned primary Judge and substitute an order that the question raised by the preliminary issue formulated pursuant to Order 29, r.2 of the Court's rules be determined adversely to the respondent. The matter should be remitted to the primary Judge for the determination of the remaining issues in question between the parties.

JUDGE2

This appeal raises a question of the proper construction of a section of the Migration Act 1958. Section 20, in its present form, includes the following:

"20(1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: .

.

.

(d) when the person entered Australia, the person was: .

.

.

(ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year;

(iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totalling at least one year; . . . 20(15) `crime' means an offence punishable:

(a) by death;

(b) by imprisonment for life; or

(c) by imprisonment for a maximum period of at least 6 months".

It will be observed that the structure of this provision involves advertence, first, by sub-para. (ii), to the case of a conviction and sentence for a period in respect of a single crime. The period, of course, is important as an indication of the seriousness of the offence since, as will appear, the application of s. 20 has serious consequences, and especially since there are no bounds to the retrospectivity of the section. Historically, sub-para. (ii), in some form, was for long the sole expression of the reach of this provision.

The question to be determined in this appeal is whether the insertion of sub-para. (iii) was intended to extend the operation of the section to embrace a deemed sentence of imprisonment for a period of at least one year obtained by adding together unconnected sentences of imprisonment imposed upon conviction for any series of individually minor offences, scattered over however long a period. Or alternatively, was the insertion intended to strengthen the provision dealing with a single offence, of sufficient seriousness to result in a sentence of at least one year, by covering the case where, by Court order, sentences of imprisonment for several offences have been made consecutive to form a period of imprisonment totalling at least one year? That question has to be decided by the true construction of s. 20, read in its context, in the light of its statutory history, and with the guidance of the applicable principles of statutory construction.
The context includes ss. 14 and 59. By s. 14(2), it is provided:

"Where a person to whom subsection 20(1) ... applies has entered Australia (whether before or after the commencement of this section) then, at and after that commencement, or that entry, whichever is later, the person is an illegal entrant at any time while he or she:

(a) remains in Australia;

(b) is not a citizen; and

(c) does not hold a properly endorsed valid entry visa."

By s. 59, it is provided:

"(1) An illegal entrant is liable to deportation if the period of grace (a period fixed by s. 13 which may be, and in this case was (if s. 20 applied to this case), as short as 28 days) for the illegal entrant has ended.

(2) Where the Minister, after following the prescribed procedures, is satisfied that a person is, under subsection

(1), liable to deportation, the Minister shall, in writing, order the deportation of the person.

(3) A deportation order made under this section may not be revoked.

(4) A deportation order made under this section in relation to a person shall be taken to revoke any deportation order made under section 60 in relation to the person."

Section 60 appears to offer an alternative:

"60(1) The Minister may, after considering the prescribed matters and no other matters, order the deportation of a person who is an illegal entrant under any provision of this Act.

(2) In spite of any other provision of this Act, a deportation order made under this section shall not be executed before the period of grace for the person has ended."

Counsel for the Minister did not explain how, in the application of this statutory scheme to the ordinary case where the period of grace has run, the Minister could under s. 60 sensibly exercise, before ascertaining the facts, a discretion he is forbidden to exercise after he has ascertained the facts under s. 59(2). Apparently, a choice in advance to follow "prescribed procedures", rather than consider "prescribed matters", determines the furrow as inescapably as the medieval choice of a form of action. And quite as harshly. It is the harshness which makes s. 59 a telling part of the context of s. 20. The wider the reach of s. 20, the wider the circle of people, once lawfully living in Australia, who are now liable to deportation, and liable, merely by administrative choice of procedure, to deportation without recourse to any remedy or appeal.

The statutory history is instructive. From its very beginning, the Commonwealth of Australia has had a statute concerning immigration. The Immigration Restriction Act 1901 was based, in part, on State legislation passed at the end of the 19th century, although, as Griffith C.J. pointed out in Potter v Minahan (1908) 7 CLR 277 (at 290), its "first pattern" was in a South African law of 1887 passed for immigration control. Paragraph (e) of s. 3 included among prohibited immigrants:

"Any person who has within three years been convicted of an offence, not being a mere political offence, and has been sentenced to imprisonment for one year or longer therefor, and has not received a pardon".

It will be observed that, in a number of respects, our Victorian ancestors qualified this subsection to ensure its impact would not be inhumane. Although some of these qualifications have been removed during the 20th century, the provision remains recognizably the progenitor of the present sub-para. 20(1)(d)(ii) of the Migration Act. In 1979, it was first expanded by s. 10 of the Migration Amendment Act 1979 ("the 1979 amendment") to include "a person who has been convicted of 2 or more crimes and sentenced to imprisonment for periods aggregating not less than 1 (sic) year". The provision was then contained in sub-paras. 16(1)(c)(ii) and (iii). It became the present sub-paras. 20(1)(d)(ii) and (iii) in 1989, as a result of further amending Acts.

Persons whose liberties are protected by the common law, who live in our community, are entitled to have laws of the nature of s. 20 read with scrupulous care, and in their narrowest, rather than in some wider, sense. That is because s. 20 deprives those caught by it of one of their most precious rights, their right of community. There is no limit to its retroactive effect upon a person who may have lived here as a lawful entrant for, perhaps, twenty or more years. The making of a deportation order is the plainest infringement of liberty; the making of it under a retroactive law underlines the common law's concern. Both retrospectivity and curtailment of liberty, when found in any statute, are strong pointers towards a construction strictly confining its operation.
These principles have been applied to statutes comparable with the Migration Act. In Khera v Secretary of State for the Home Department (Reg. v Secretary of State for the Home Department, Ex parte Khawaja) (1984) AC 74, the House of Lords considered the standard of proof of an issue concerning a question arising under the Immigration Act 1971 (UK). Lord Fraser of Tullybelton (at 97) said: "As cases such as those in the present appeals involve grave issues of personal liberty, the degree of probability required will be high." Lord Scarman (at 113) said: "Liberty is at stake: that is ... a grave matter." He went on to draw the same conclusion. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520 Mason C.J., Wilson and Dawson JJ., when rejecting the literal construction of a statute, which also had the support of s. 15 AB of the Acts Interpretation Act 1901, referred to "the serious implications that the construction contended for by the respondents would have for a person enjoying permanent resident status in Australia". O'Connor J., in Potter v Minahan supra (at 304), said with reference to the construction of the Immigration Restriction Act 1901:

"(I)t is always necessary, in cases such as this where a Statute affects civil rights, to keep in view the principle of construction stated in Maxwell on Statutes, 4th ed., p 121:- `There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them is therefore to be avoided.' ... (T)he learned author continues (at page 122):- `... It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.'"

What O'Connor J. there said is of direct relevance, since the legislation was in pari materia and the issue under that legislation was entirely comparable with the issue which arises in the present appeal.

When the 1979 legislation came before Parliament, the minister introducing it said, in his second reading speech (House of Representatives Hansard, vol. 114 p 2096) that it was intended "to make essential amendments ... without changing the basic concepts in the existing legislation." He did not mention the retroactive effect upon persons lawfully in Australia at the time, who became prohibited immigrants upon the commencement of the operation of the amending Act. After discussing the terms of several provisions without referring to the change presently in question, he continued (at p 2098):

"Other provisions in the Bill are of a technical nature, designed to improve control mechanisms and to correct deficiencies. They do not introduce major changes in policy or vary the basic concepts currently embodied in the legislation."

These things are, of course, easily explicable if the amendment really had a minimal effect, stopping up what was truly a purely "technical" loophole in the previous provision. They are not to be explained satisfactorily if it was intended to create a new category of persons, to be excluded retroactively by a much more stringent test.

The respondent, then 30 years of age, came to Australia from New Zealand as an immigrant in 1975, thereupon becoming entitled to reside in Australia permanently. Before his migration, there had been no occasion on which the respondent had been brought before a court, convicted and sentenced to imprisonment for a period of not less than one year. But there had been separate occasions, all more than twenty years ago now, when he had been convicted and sentenced to lesser periods of imprisonment which, if added together, would provide a total period of imprisonment greater than one year. Although, as a New Zealander, the appellant was under no requirement to obtain an entry permit when he arrived in Australia, there is authority, the correctness of which was not debated before us, to support the retroactive application of the 1979 amendment to a person who had come lawfully to Australia without an entry permit: Samuels v Hurford, Minister of State for Immigration and Ethnic Affairs (Woodward J., unreported, 1 August 1985).
In our opinion, although the 1979 amendment could well be described as ambiguous, it was not intended to, and did not, introduce a new category of persons for whom a deemed sentence of imprisonment for a period of at least one year was to be calculated by adding together quite unconnected minor sentences. Parliament had never barred, under this provision, a person who had not on some occasion been guilty of conduct of a significantly serious level. The amendment inserted a sub-paragraph immediately following that which referred to "a person who has been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of not less than one year". In this context, the repetition of the expression "a person who has been convicted", in the next sub-paragraph in which "two or more crimes" are referred to, seems a natural extension to cover the case where the sentencing court dealt, not with one, but with a series of crimes. In such a case, there may have been a court order that sentences of imprisonment be consecutive so as to provide a period of imprisonment which totalled more than one year, although there was no one sentence so long; and the convicted person who, before the amendment, would have escaped the provision, could well have been seen as having done so through a technical loophole. Of course, the language is not clear. The expression "has been convicted" is simply not limited, nor extended, by any words such as, to give it plainly the one meaning, "on some occasion", or, to give it plainly the other, "on one or more occasions". While it could refer to the case we have mentioned, it could also refer to a series of minor convictions spread over many years. In that case, a person, who had never, at any particular time in his life, been guilty of any serious offence or series of offences, might have become retroactively a prohibited immigrant by a statutory process of adding together unconnected sentences of imprisonment imposed for widely separated minor offences, some perhaps even committed in adolescence.
While recognizing the ambiguity of the unqualified verb "has been convicted", we think it is of assistance to note that Parliament used the word "aggregating" to express a central concept of the 1979 amendment. The simple expression "adding up to", which carries no suggestion of association between the units added up, was not used. You aggregate things which go together. A good example of the correct use of the word, as an adjective, is to be found in a judgment of Farwell J. in In re Baron Kensington. Earl of Longford v Baron Kensington (1902) 1 Ch 203 at 207. Farwell J. said of the doctrine that the legatee of property given as one aggregate thing cannot reject so much of it as is onerous:

"Now I have, first of all, to construe the will to see whether the testator has in fact given his real property and his leasehold property as one aggregate gift, or whether there are two or three different gifts. The rule of law is well settled that where there are two distinct gifts to the same person, one being onerous and the other beneficial, the donee may disclaim the onerous gift and take the other. If, however, the onerous and beneficial property are included in the same gift, prima facie the donee cannot disclaim the onerous and accept the beneficial property, but must take the whole or none. First of all, therefore, as a question of construction, I have to consider whether or not there is one gift of an aggregate whole."

Although, undoubtedly, it would be possible to speak of aggregating disparate periods, it would be more natural to speak of adding them to each other. When the reference is to aggregating periods, what is conveyed is a suggestion of homogeneity so that what results is in some sense a whole. Such a suggestion would be appropriate in relation to a court order that several sentences of imprisonment be served consecutively so as to make up one continuous period of detention.

Confronted with a problem of this kind, the court would be required by the normal processes of construction to give a reasonable meaning, rather than an unreasonable one, to the language of Parliament. In this case, that meaning is reinforced by s. 15AB of the Acts Interpretation Act, having regard to the second reading speech. It is immeasurably strengthened by the fundamental principles of construction to which we have referred.
There is a further ambiguity in the amendment, which we should mention. It is sufficient, in itself, to indicate that the draftsman may have been somewhat less than careful to make an exact statement. If so, there is the more reason why the court should not hesitate to apply the appropriate presumptions in the construction of the legislation. The point is that sub-para. (iii) makes no express distinction between cumulative and concurrent sentences. Yet the slightest reflection will show that an express reference was at least very desirable, in order to avoid uncertainty. Has a person, who has been sentenced to two sentences of six months of imprisonment, to be served concurrently, been "sentenced to imprisonment for periods aggregating not less than one year"? In our opinion, that would be a strange conclusion. The theory of the criminal law is that several charges which arise out of the one enterprise may be so connected that they should be regarded as relating to one incident: Reg v Melville (1956) 73 WN (NSW) 579. Convictions upon charges of this kind will result in concurrent sentences to be served by one period of imprisonment, and the length of that period will be appropriate to the total criminality involved. A deemed addition of a number of concurrent sentences would not only be unfair; it would be irrational, because in conflict with the basis on which the total period of imprisonment was fixed. Plainly, however, if these considerations had been perceived, so serious a question would have been expressly resolved, and not left to be settled outside the Parliament by the sometimes uncertain processes of construction. Similarly, the draftsman appears not to have adverted to the possibility that a sentence may have involved periodic detention, rather than a continuous period of imprisonment. It has been held judicially, and we respectfully agree with the decision and think it must have been acknowledged by the draftsman of the 1989 amendments who made no relevant change, that periodic detention does not fall within the provision: Mere Akuhata-Brown v Chesley (Gallop J., unreported, 20 March 1981).
When the then s. 16 was repealed and replaced as s. 11A, only to be immediately renumbered as s. 20, by the successive operation of ss. 7, 6 and 35 of the Migration Legislation Amendment Act 1989, its true construction became clearer. For the section now refers to a person convicted of two or more crimes and sentenced to imprisonment for "a period totalling at least one year". This seems to us to be unambiguously referable to a single period which will not include several unconnected and discrete periods of imprisonment arising out of two or more separate sentences.
It is noteworthy that the explanatory memorandum prepared in relation to the 1989 amendments to the section which became s. 20 contained the statement:

"This section outlines the circumstances in which an entry permit holder becomes an illegal entrant. This provision deals with those situations covered by the current section 16 with a number of style changes."

Plainly, the Parliament, at that time, treated the two versions as having the same effect.

For these reasons, we think the learned primary judge was correct in holding that the respondent was not a person to whom sub-para. 20(1)(d)(iii) applied, and the Minister's appeal should be dismissed with costs.

[1991] FCA 563

13 SEPTEMBER 1991