Immigration Act 1940

Legislation au C1940A00036 Not in force Act

Legislation content

IMMIGRATION.

 

No. 36 of 1940.

An Act to amend the Immigration Act 1901-1935.

[Assented to 4th June. 1940.]

[Date of commencement, 2nd July, 1940.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Short title and citation.

1.—(1.) This Act may be cited as the Immigration Act 1940.


(2.) The Immigration Act 1901-1935 is in this Act referred to as the Principal Act.

(3.) The Principal Act, as amended by this Act, may be cited as the Immigration Act 1901-1940.

Definitions.

2. Section two of the Principal Act is amended—

(a) by inserting, before the definition of “Officer”, the following definitions:—

“‘Collector of Customs’, in relation to any power or function, includes an officer authorized in writing by the Minister to exercise or perform that power or function;

‘Master of a vessel’ includes the pilot of an aircraft;”; and

(b) by inserting, after the definition of “Officer”, the following definitions:—

“‘Passport’ includes a document of identity issued from official sources, whether within or outside Australia, and having the characteristics of a passport;

‘Vessel’ includes aircraft”.

Prohibited immigrants.

3. Section three of the Principal Act is amended—

(a) by omitting paragraph (ge) and inserting in its stead the following paragraph:—

“(ge) any alien who, on demand by an officer, fails to satisfy the officer—

(a) that he is the holder of a landing permit, issued by or on behalf of the Minister, authorizing the admission of the holder into Australia, and that he is able to comply with the conditions specified therein; or

(b) that his admission into Australia has otherwise been authorized by or on behalf of the Minister;”; and

(b) by inserting in paragraph (gg), after the word “Act”, the words “and whose re-entry into the Commonwealth has not been authorized by the Minister”.

4. Section four of the Principal Act is repealed and the following section inserted in its stead:—

Certificate to enter or remain temporarily.

“4.—(1.) The Minister, or an officer thereto authorized in writing by the Minister (in this section referred to as ‘an authorized officer’), may issue a certificate of exemption in the prescribed form authorizing any person who, unless he possesses such a certificate, is liable to be


prohibited under this Act from entering or remaining in the Commonwealth, to enter or remain in the Commonwealth without being subject to any of the provisions of this Act restricting entry into or stay in the Commonwealth.

“(2.) The certificate shall be expressed to be in force for a specified period only, but the period may be extended from time to time by the Minister or by an authorized officer.

“(3.) Any such certificate may at any time be cancelled by the Minister by writing under his hand.

“(4.) Upon the expiration or cancellation of any such certificate, the person named therein may, if found within the Commonwealth, be declared by the Minister to be a prohibited immigrant and may thereupon be required by notice in writing given by an authorized officer, in accordance with the directions of the Minister, to leave the Commonwealth within a period to be specified in the notice.

“(5.) If the person fails to leave the Commonwealth within the period specified in the notice, he may be deported from the Commonwealth pursuant to an order of the Minister.

“(6.) Where, in pursuance of this section, a person enters the Commonwealth from any vessel, a penalty shall not attach to the vessel or its master, owners, agents or charterers in respect of such entry; but the master, owners, agents or charterers of the vessel may, at any time within five years after the entry of the person into the Commonwealth, be required by notice in writing given by any Collector of Customs, to provide a passage for that person from the Commonwealth to the place whence he came, and in default of compliance with that requirement shall be guilty of an offence.

Penalty: One hundred pounds.”.

Immigrants evading officers or found within the Commonwealth.

5. Section five of the Principal Act is amended—

(a) by omitting from paragraph (c) of sub-section (1.) the words “certificate, credentials or identification card” and inserting in their stead the words “permit, certificate, passport, credentials, identification card or other document”; and

(b) by omitting from paragraph (c) of sub-section (3.) the words “certificate, credentials or identification card” and inserting in their stead the words “permit, certificate, passport, credentials, identification card or other document”.

Deportation of prisoner.

6. Section seven aa of the Principal Act is amended by adding at the end thereof the words “or within such extended period as is authorized by the Minister”.

7. Section eight of the Principal Act is repealed and the following section inserted in its stead:—

Certain persons may be deported.

“8. Any person, not being a British subject either natural-born or naturalized, who is convicted of a crime of violence against the person or of extorting any money or thing from any resident of the


Commonwealth by force or threat, or of any attempt to commit such a crime, or who is convicted of any other criminal offence for which he is sentenced to imprisonment for one year or longer, shall be liable, upon the expiration of, or during, any term of imprisonment imposed on him therefor, to be deported from the Commonwealth pursuant to any order of the Minister.”.

Custody pending deportation.

8. Section eight c of the Principal Act is amended by inserting, after the word “shall”, the words “, unless the Minister otherwise directs,”.

Regulations.

9.—(1.) Section sixteen of the Principal Act is amended—

(a) by omitting from paragraph (d) the word “and”; and

(b) by adding at the end thereof the following paragraph:—

“; and (f) for requiring maintenance guarantees to be given, in such circumstances as the Minister thinks fit, in relation to persons seeking to enter the Commonwealth and providing for the enforcement of those guarantees.”.

(2.) Regulation 6 of the Immigration Regulations (being Statutory Rules 1932, No. 103 and purporting to have been made under the Immigration Act 1901-1932) shall be deemed to be, and at all times to have been, as valid and effectual for all purposes as if the amendments made to the Principal Act by this section had been in force immediately prior to the date on which that regulation was made.

 

Overview

The Immigration Act 1940 was enacted to address gaps and problems in the existing immigration framework, particularly in light of changing geopolitical circumstances. The Act amended the Immigration Act 1901-1935, introducing new provisions to strengthen the regulation of immigration and the enforcement of immigration laws. The Act was passed by the Parliament of Australia and received Royal Assent on 4 June 1940, coming into effect on 2 July 1940. One of its key policy objectives was to update the legal definitions and scope of immigration control, including the extension of powers to authorise officers to exercise immigration functions and the broadening of the definition of prohibited immigrants to include those without proper documentation or authorisation. The Act also provided the Minister with the authority to issue certificates of exemption, allowing certain individuals to enter or remain in Australia temporarily under specific conditions. The Immigration Act 1940 introduced significant amendments to address the control and regulation of immigration, reflecting the need for a more robust framework in response to emerging challenges. It aimed to ensure that immigration policies could be effectively enforced, particularly in relation to the documentation and authorisation required for entry and stay in Australia. By updating the legal definitions and enhancing the powers of authorised officers, the Act sought to provide a more comprehensive approach to managing immigration, including measures for the deportation of individuals who had committed serious crimes or who were otherwise deemed inadmissible.

Scope and Application

The Immigration Act 1940 applies to individuals and entities involved in immigration matters within the Commonwealth of Australia. It governs the conduct and transactions related to immigration, including the entry, stay, and deportation of non-British subjects. The Act extends to the entire Commonwealth, thereby affecting all states and territories within Australia. The Act provides for the issuance of certificates of exemption to individuals who would otherwise be prohibited from entering or remaining in the Commonwealth, and it outlines the procedures for deportation of individuals who have been convicted of certain criminal offences. Additionally, the Act allows for the regulation of maintenance guarantees for persons seeking to enter Australia. The Act also includes provisions for the enforcement of its regulations through subordinate instruments, which may further define and restrict its application. Certain individuals, such as British subjects who are natural-born or naturalized, are exempt from the provisions of the Act.

Key Provisions

The Immigration Act 1940 amends the Immigration Act 1901-1935, introducing several key provisions. Section 3 of the Act modifies the definition of "prohibited immigrants" to include those who cannot produce a landing permit or evidence of authorized entry upon demand by an officer. It also adds that a prohibited immigrant includes someone whose re-entry into the Commonwealth has not been authorized by the Minister. Section 4 introduces the concept of a certificate of exemption, which allows certain individuals, who would otherwise be prohibited from entering or remaining in Australia, to do so temporarily under specific conditions. This certificate can be issued by the Minister or an authorized officer and can be extended or cancelled by the Minister. Additionally, Section 8 establishes that non-British subjects convicted of certain crimes or sentenced to imprisonment for one year or longer can be deported. The Act imposes several obligations on parties and entities it governs. For example, Section 4 requires the Master, owners, agents, or charterers of a vessel to provide a passage for a person from Australia to their point of origin if they fail to leave within the specified period after their certificate of exemption expires or is cancelled. Furthermore, Section 8a mandates that a person convicted of specified crimes or sentenced to imprisonment for one year or longer can be deported at the expiration of, or during, their imprisonment term. Breaches of the Act carry various consequences. For instance, the master, owners, agents, or charterers of a vessel may be required to provide a passage for a person at their own expense, with failure to comply being an offence carrying a maximum penalty of one hundred pounds, as stated in Section 4(6). Additionally, deportation is a significant consequence for prohibited immigrants or those who fail to comply with the terms of their certificate of exemption, as well as for non-British subjects convicted of specified crimes or sentenced to imprisonment for one year or longer, as outlined in Sections 4(5), 4(6), and 8 respectively. These provisions emphasize the Act’s stringent measures for maintaining immigration control and public safety.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Act
Concepts
Definitions & Interpretation
Prohibited Conduct
Deportation
Enforcement Powers
Regulatory Standards

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.