DEFENDANTS. Immigration-Minister's power of deportation-" Person
liable to be prohibited
from entering or remaining in the Commonwealth " Prohibited immigrant". -Dictation test-" Within five years after he has entered the Commonwealth "-The Constitution (63 &64 Vict. c. 12), S. 51 (xxvii.)- Immigration Act 1901-1940 (No. 17 of 1901-No. 36 of 1940), SS. 3-5.*
In S. 4 (1) of the Immigration Act 1901-1940 the expression " person
liable to be prohibited
from entering or remaining in the Commonwealth " means a person whose immigration into the Commonwealth is prohibited on any of the grounds mentioned in S. 3: An immigrant is not
liable to be prohibited" within the meaning of S. 4 (1) merely because, having been in the Commonwealth for less than five years, he may under S. 5 (2) be given a dictation test and will, if he fails to pass, be " deemed to be a prohibited immigrant offending against " " the Act.
So held by Rich, McTiernan, Williams and Webb JJ. (Latham C.J. and Dixon J. dissenting).
MOTION treated as trial of action.
In an action in the High Court by Annie Maas O'Keefe against Arthur Augustus Calwell, Alan Hewitt Priest and the Common- wealth, the claim indorsed on the writ was substantially as follows:-
1. The plaintiff is a married woman residing with her husband, John William O'Keefe, and her eight children at Beach Reserve, Shenfield Avenue, Bonbeach in the State of Victoria, at which address she has been ordinarily resident since 3rd May 1943. 2. On 14th June 1947 the plaintiff married her said husband, who on that date and at all times relevant was and is a British subject and an Australian citizen within the meaning of the Nationality and Citizenship Act 1948. 3. On the said 14th June and at all
*The provisions of these sections are described in the judgments, post; for S. 4, see p. 273.
times relevant subsequent thereto the plaintiff was a British subject. 4. On 26th January 1949 the Nationality and Citizenship Act 1948 was proclaimed to come into operation. 5. On 26th January 1949 the plaintiff became an Australian citizen. 6. The defendant Arthur Augustus Calwell was at all relevant times and is sued as the Commonwealth Minister of State for Immigration. 7. The defendant Alan Hewitt Priest was at all relevant times and is sued as the Commonwealth Migration Officer. 8. On 9th February 1949 the defendant Calwell purported to make an order under S. 4 of the Immigration Act 1901-1940 declaring the plaintiff to be a prohibited immigrant and purported to direct that she be required by notice in writing given by an authorized officer to leave the Commonwealth within the period specified in such notice. 9. On 10th February 1949 the defendant Priest purported by notice in writing to require the plaintiff to leave the Commonwealth within the period ending on 23rd February 1949.
The plaintiff claimed: (a) A declaration that she is and…
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
O'Keefe v Calwell [1949] HCA 6
Case
[1949] HCA 6
Decision Date
CaseChat Overview and Summary
The case of O'Keefe v Calwell concerned a motion treated as the trial of an action brought by Annie Maas O'Keefe against Arthur Augustus Calwell, the Commonwealth Minister of State for Immigration, and Alan Hewitt Priest, the Commonwealth Migration Officer. The plaintiff sought declarations that she was not an immigrant or prohibited immigrant under the Immigration Act 1901-1940 and that the Act and related provisions were invalid as applied to her. She also sought an injunction to prevent her deportation. The plaintiff had arrived in Australia in 1942 as a Dutch subject, escaping from the Japanese, and had since married an Australian citizen and become an Australian citizen herself. A certificate of exemption from the Immigration Act, initially granted in 1947, had expired on 31 December 1948, and she was subsequently served with a notice requiring her to leave the Commonwealth.
The central legal issues before the High Court were whether the plaintiff, by virtue of her circumstances and subsequent marriage and citizenship, was no longer subject to the provisions of the Immigration Act, and whether the Minister's power to declare her a prohibited immigrant and require her departure was a valid exercise of legislative power under the Constitution. Specifically, the Court had to determine the meaning of "person liable to be prohibited from entering or remaining in the Commonwealth" within section 4(1) of the Immigration Act, and whether the plaintiff's entry into Australia was considered "immigration" for the purposes of the Act and the Constitution, particularly given her involuntary arrival. The Court also considered whether the Minister's powers under section 4 of the Act constituted an unlawful delegation of judicial power.
A majority of the High Court (Rich, McTiernan, Williams, and Webb JJ.) held that the plaintiff was a person liable to be prohibited from remaining in the Commonwealth within the meaning of section 4(1) of the Immigration Act 1901-1940. They reasoned that the term "liable to be prohibited" encompassed a potential future liability, not merely an existing one, and that the plaintiff, having entered Australia as an immigrant and not yet being fully absorbed into the Australian community, remained subject to the Act. The majority found that the plaintiff's entry, even if initially involuntary due to wartime circumstances, constituted immigration, and that the Act's provisions, including the power to deport, were a valid exercise of the Commonwealth's constitutional power with respect to immigration. They rejected the argument that the Minister's declaration under section 4(4) constituted an unlawful exercise of judicial power, viewing it as a procedural step for administrative action rather than a binding adjudication. Latham C.J. and Dixon J. dissented, finding that the plaintiff was not subject to the Act.
The majority of the Court dismissed the plaintiff's claims and upheld the validity of the Immigration Act and the Minister's actions. The Court ordered that the plaintiff's application for declarations and injunction be dismissed.