R v Davey [1936] HCA 58; (1936) 56 CLR 381 (4 December 1936)

Spender K.C. (with him A. R. Taylor), for the respondents Cody and the Commonwealth of Australia.

This is an application on behalf of Mabel Magdalene Freer to make absolute an order nisi for a writ of habeas corpus which was granted this morning, and directed against the master of the vessel, s.s. Awatea, now lying at a Sydney wharf, as well as against the Commonwealth and its authorized officer.

On the facts stated in the affidavits filed on behalf of the applicant this morning, the master of the vessel, as well as the Commonwealth Executive Government through its officers, was actively responsible for the present detention of the applicant on board. But the evidence of the captain now makes it plain that the sole responsibility for the admitted detention of the applicant rests with the two other respondents, namely, the Commonwealth of Australia, and its authorized officer.

The jurisdiction of the court to hear the present application is established by sec. 75 (iii.) of the Constitution. From cases like The Commonwealth v. New South Wales[1] and New South Wales v. Bardolph[2] it might appear that sec. 75 (iii.) operates not merely as a grant of jurisdiction to the court, but as an assimilation of a citizen's rights against State and Commonwealth to those which one citizen could, in similar cases, enforce against another (See also Judiciary Act 1903-1933, sec. 56). Whether this be so or not I need not inquire further here, because the Commonwealth is in fact a party, and the court's jurisdiction is undoubted.

Of course the onus rests upon persons detaining a person within the jurisdiction to show with precision the legal authority for such a serious invasion of the personal liberty of the subject. Two grounds only have been relied upon by the respondents for the detention of Mrs. Freer.

(1)

It was suggested that section 3J of the Immigration Act 1901-1935 warrants the detention; and, indeed, the responsible Minister of the Commonwealth—Mr. Paterson—signed an authority to prevent the applicant's arrival, which was expressly based on sec. 3J. The section provides that the Minister may, if he thinks fit, prevent an intending immigrant from entering the Commonwealth notwithstanding that the prescribed certificate of health has been issued to the intending immigrant.

I am clearly of opinion that the power conferred by sec. 3J is intended to be exercised upon grounds relating to health, and that it does not confer an absolute and unqualified power upon the Minister to prevent an intending immigrant from entering the Commonwealth. A person who is not armed with the prescribed certificate of health is a prohibited immigrant (See sec. 3 (b)). The object of sec. 3J is to secure that mere possession of the certificate is not conclusive against the Executive's power to exclude the intending immigrant; so that it is directed solely to exclusion upon grounds pertaining to health. In the present case, it is admitted by the Commonwealth's counsel that sec. 3J can have no application, because the Minister's direction, under sec. 3J, was not made upon medical or health grounds.

(2)

After argument had proceeded, the only justification relied upon for the detention was based upon sec. 3 (a) of the Act coupled with sec. 14. Sec. 14 gives authority to every Customs officer to prevent a prohibited immigrant from entering the Commonwealth; and it is contended that the applicant is a prohibited immigrant upon the grounds specified in sec. 3 (a) of the Act, namely, that she is a person who failed to pass the dictation test; so that, at the time of the application to the court, and at the present moment, her imprisonment by the Commonwealth and its officer is only justified if it is proved that, prior to the detention, the applicant was a person who failed to pass the dictation test.

Mr. Bavin for the applicant has argued the case very fully. But, although I am unable to agree with his argument, I would refer to the statement of Lord Selborne L.C. that the ingenuity and zeal of counsel are never misplaced when exercised for the defence of the personal liberty of the subject (Green v. Lord Penzance[3]).

The facts as to the administration of the dictation test to the applicant are not in substantial dispute. So far as material they are referred to hereafter. The chief argument for the applicant is that, under sec. 3 (a) of the Act, neither the officer who gives the dictation test himself, nor the person authorized by him to do so, is entitled to select the language in which the test is to be administered. And Mr. Bavin has relied strongly upon the history of sec. 3 (a).

Certainly the history of sec. 3 (a) is one of extraordinary interest. It is quite clear that, by executive action, there has been a remarkable turning or twisting of the original scheme of the Commonwealth Parliament in prescribing a failure to pass the dictation test as itself making the person failing a prohibited immigrant. The provision was first incorporated in the Immigration Restriction Act 1901, passed in December 1901. It is perfectly well known to all who are acquainted with the social and legal history of the Commonwealth that the test was never intended to be a real education test, or a provision guarding against the entry of illiterates. It was merely a convenient and polite device (which had previously been used similarly in the Colony of Natal) for the purpose of enabling the Executive Government of Australia to prevent the immigration of persons deemed unsuitable because of their Asiatic or non-European race. Accordingly the Parliament said that the test had to be applied in an European language directed by the officer. Not only when the original Act was passed, but also in many subsequent government documents and immigration pamphlets circulated amongst persons likely to become immigrants, it was officially stated that the dictation test was never intended to be applied, and would never be applied, to immigrants of an European race.

But the blanket words of the section do not require the adoption of such a policy and, in modern times, they have been found sufficiently wide to cover not only any person of European race, but British subjects of European race. It is well established that it is impossible to confine the application of the restrictions to persons of non-British nationality. Indeed, one of the original purposes of the Act was to enable the Executive to exclude British subjects of Asiatic race.

In determining the selection of the European language to be used in the dictation test, I agree with Mr. Bavin that the decision of this Court in Chia Gee v. Martin[4] is not conclusive against him, for, under the 1901 Act, which was then in question, the section expressly indicated that the language of the test was to be directed by the officer. The question is whether sec. 3 (a) in its revised form has transferred the power of selection from the person dictating the words to the examination. In my opinion the answer is in the negative.

According to the plain words of sec. 3 (a), failure to pass the test results automatically upon the occurrence of a double event, viz.:—

In using the words "an European language," I am reading into sec. 3 (a) the words which occur in sec. 5 of the Immigration Restriction Act 1905, which provided that, until a regulation prescribing the languages came into full force, any language authorized by sec. 3 of the Act of 1901 should be deemed to be a "prescribed language."

In the present case, the respondents who are responsible for the detention of the applicant have proved each of the events which I have set out above. First, Dr. Monticone (who was a person duly authorized in writing by the officer) dictated to the applicant not less than fifty words in Italian, and, second, the applicant failed to write down in Italian any of those words.

While the Act does not specifically state that the European language is to be selected by the person administering the dictation test, this is the necessary result of the fact that the first of the two events is controlled by the person who dictates; and that it is nowhere suggested that the person arriving has the right of selecting the European language, a right which would entirely contradict and defeat the object of the legislation.

There are two other points which have been made. First, it was contended that, if the language in which the test is administered is to be selected by the person dictating, the selection must be his own; and that, in the present case, the selection of Italian was made by the Commonwealth Crown Solicitor, Mr. Sharwood, who also arranged for Dr. Monticone's services as a person skilled in Italian. There is nothing in the argument. Under sec. 3 (a) the only questions material to the point are (a) whether Mr. Cody was an officer; (b) whether Dr. Monticone had written authority to administer the test; and (c) whether the test actually took place in an European language. The fact that a direction to use Italian proceeded from a higher executive source is not material.

The second and last point was that there cannot be a "failure" to pass the dictation test unless the person to whom the test is applied voluntarily submits to the test. This morning, when the authorized officer asked the applicant to write down the words in Italian, she protested against the selection of Italian and refused to submit to a test in any language save English. She closed her ears with her fingers to prevent herself from hearing the dictation in Italian. The argument that, thereby, she enabled herself to say that she did not "fail" in the test is untenable. As I have already held, the section operates objectively in the sense that the person arriving automatically becomes a prohibited immigrant upon the occurrence of the events specified in sec. 3 (a). Those events I have already paraphrased. It necessarily follows that so long as the person arriving is aware that the test is being administered to him, a failure to pass is none the less a failure because the person under test deliberately prevents himself from hearing the words which are being dictated.

It must not be supposed that, in dealing with applications like the present, the Parliament has given any authority to the court to examine the question whether a person can or should be regarded as an unsuitable or undesirable visitor or immigrant to Australia. If, in any particular case, there has been an abuse of the power entrusted by statute to the Government, responsibility for that rests with the Minister or with the Government for which he is acting, or with the Parliament to which the Government is politically responsible. The legislature has refrained from giving this court or any tribunal authority to review a decision of the Minister. It is true that the decision to exclude from Australia by imposing a dictation test may have been based upon inaccurate or misleading information; but, even if that fact is proved, the court cannot, upon habeas corpus applications like this, regard the decision as illegal. I entirely agree with Mr. Bavin that it must not be thought for an instant that, in refusing the present application, the court is in any way indorsing or confirming the justice of any executive decision to exclude. Further no question whatever has been or could be raised before me as to the personal character or reputation of the applicant. They remain quite unaffected by the decision of the court.

For these reasons, the detention of the applicant by the respondent Cody, acting on behalf of the respondent Commonwealth, is lawful, and it is my duty to discharge the order nisi.

Solicitor for the other respondents, W. H. Sharwood, Crown Solicitor for the Commonwealth.

[1] [1923] HCA 23; (1923) 32 C.L.R. 200.

[2] [1934] HCA 74; (1934) 52 C.L.R. 455.

[3] (1881) 6 App. Cas. 657, at p. 663.

[4] [1905] HCA 70; (1905) 3 C.L.R. 649, at p. 653.

High Court of Australia

R v Davey [1936] HCA 58; (1936) 56 CLR 381 (4 December 1936)

HIGH COURT OF AUSTRALIA