Griffin v Wilson [1935] HCA 16; (1935) 52 CLR 260 (8 April 1935)

An offence is created under sec. 5 (1) and (2) of the Immigration Act 1901-1933 to which sub-sec. 3 of that section is referable.

The offence charged in this case is created by sec. 7 to which the averment sub-sec. 3 of sec. 5 does not apply.

The offence in question requires evidence of the ingredients or make-up, and as none was given, and the averment sub-section to which I have referred does not apply, the conviction should be quashed.

Before parting with the case I wish to add this, that the Immigration Act 1901-1933 is the result of the Immigration Restriction Act 1901 and ten or more amending Acts. The original Act presented difficulties of construction because of apparent incongruities of draftsmanship; the legislation has become, in the course of amending, most confused—and confusing on many important points—and it well merits the attention of the Legislature.

In consequence of the confused state of this and other Acts of Parliament an unnecessary burden is placed on the Court, whose duty it is to declare the law as it has been expressed without regard to speculation as to how it might have been expressed if fuller consideration had been given to the matter.

In my opinion the question in the case stated should be answered in the affirmative and the conviction quashed.

I agree. In my opinion the case is concluded by the opinions expressed in this Court in Williamson v. Ah On[1] and Ah You v. Gleeson[2], and in the sense that sub-sec. 3 of sec. 5 only applies to the two preceding sub-sections, and has no application to the offence stated in sec. 7. I would add that in the report of Ah You v. Gleeson[3], the reference to sec. 7 of the Immigration Act 1901-1925 seems to be a misprint, and "sec. 7" should read "sec. 5."

I agree. In my opinion the information was laid under sec. 7, and the prosecutor rightly so stated in the Court below.

Sec. 7 contains its own difficulties when it is applied to cases where an immigrant is prohibited because he fails to pass the dictation test after he lands in Australia. One difficulty lies in the word "found," which is scarcely appropriate, or at any rate is not a natural expression in relation to persons such as the defendant, who was either in custody or almost in custody at the moment that the dictation test was applied to him. He is supposed then immediately to have been "found" as a prohibited immigrant. Putting that upon one side as a minor point, sec. 7 presents another question which has been argued, but which we do not decide or express any opinion about. That question is whether in the case of immigrants who have entered Australia and have resided here, and then have the dictation test administered to them, the provision rendering them liable to imprisonment is within the immigration power.

The prosecution having been launched under sec. 7, the prosecutor relied upon sec. 5 (3) in the place of actual evidence proving the ingredients of the offence created by sec. 7, or some of them. Sub-sec. 3 of sec. 5 by its express words is limited to prosecution under either of the two preceding sub-sections. These words appear to me to be explicit, and not to admit of the construction by which they are applied to a prosecution for an offence created by sec. 7, in which prosecution the ingredients established by sub-secs. 1 and 2 of sec. 5 are relied upon to make out the offence charged. It is possible that the Legislature did not intend this consequence of the language, but it has used language which, in my opinion, admits of no other interpretation.

I do not agree with the contention advanced in order to lay a foundation for giving to sub-sec. 3 a different meaning, namely, the contention that there are no offences created by sub-secs. 1 and 2 of sec. 5. I think the language of this section is language which was apt to create offences and which, coupled with sec. 18, succeeded in doing so.

For these reasons, the evidentiary provisions seem to me to be inapplicable to a prosecution under sec. 7, and upon that ground. and that alone, so far as our present decision is concerned, the conviction should be quashed.

I agree with Rich J. In my opinion, first, the offence charged against the appellant was under sec. 7; second, sec. 5 (2) creates a separate and distinct offence from that created under sec. 7; and, third, sec. 5 (3) has no application to prosecutions under sec. 7.

The framework of sec. 5 (3) makes the conclusions too clear for argument, but, if authority is needed, the precise points appear to be covered by the remarks of Rich and Starke JJ. in the case of Williamson v. Ah On[4], and apparently by an observation of Isaacs J. in the same case[5]. The appeal should be allowed with costs.

The decision of Rich and Starke JJ. in Williamson v. Ah On[6] with respect to sub-secs. 1 and 2 of sec. 5 was that these sub-sections constitute "separate and distinct offences and are not instances of a general offence constituted by the provisions of secs. 3 and 7." The words of sub-sec. 3 of sec. 5 expressly confine its operations to proceedings under sub-secs. 1 and 2 of sec. 5.

I agree that the prosecution was instituted under sec. 7, and that sub-sec. 3 of sec. 5 does not apply to proceedings under sec. 7.

Question submitted in the case stated answered in the affirmative. Conviction quashed. Respondent to pay the costs of applicant in this Court and the Courts below.

[1] [1926] HCA 46; (1926) 39 C.L.R. 95.

[2] [1930] HCA 25; (1930) 43 C.L.R. 589.

[3] (1930) 43 C.L.R., at p. 595.

[4] (1926) 39 C.L.R., at p. 129.

[5] (1926) 39 C.L.R., at p. 105.

[6] (1926) 39 C.L.R., at p. 129.

High Court of Australia

Griffin v Wilson [1935] HCA 16; (1935) 52 CLR 260 (8 April 1935)

HIGH COURT OF AUSTRALIA