Chu Shao Hung v R [1953] HCA 33; (1953) 87 CLR 575 (9 June 1953)

HIGH COURT OF AUSTRALIA

CHU SHAO HUNG v. THE QUEEN [1953] HCA 33; (1953) 87 CLR 575

Immigration

High Court of Australia
Williams A.C.J.(1), Fullagar(2) and Kitto(3) JJ.

CATCHWORDS

Immigration - Immigrants - Dictation test - Failure - Prohibited immigrant - Conviction - Penalty - Imprisonment for six months - Deportation - Release on bond - Power - Discretion of court - Immigration Act 1901-1949 (No. 17 of 1901 - No. 31 of 1949), ss. 5 (2) (6), 7, 7A, 7AA, 8C - Crimes Act 1914-1950 (Cth.) (No. 12 of 1914 - No. 80 of 1950), s. 20* - Acts Interpretation Act 1901- 1950 (No. 2 of 1901 - No. 80 of 1950), s. 41.

HEARING

Sydney, 1953, April 30;
Melbourne, 1953, June 9. 9:6:1953
APPLICATION for special leave to appeal, and APPEAL, from the Court of Criminal Appeal of New South Wales.

DECISION

June 9.
The following written judgments were delivered:-
WILLIAMS A.C.J. This is a motion on notice by a Chinese immigrant for sitting as the Court of Criminal Appeal answering in the negative a question asked in a case stated by a chairman of quarter sessions for the opinion of that Court pursuant to s. 5B of the Criminal Appeal Act 1912-1951 (N.S.W.). The question is as follows: "Do the provisions of s. 20 of the Commonwealth Crimes Act 1914 (as amended) apply to a conviction under s. 5 sub-s. (6) of the Commonwealth Immigration Act 1901 (as amended)?" (at p583)

2. The question raises a point of general public importance in the administration of the immigration laws and special leave should be granted if we disagree with the Supreme Court. It has been fully argued on the merits so that if special leave is granted we can also dispose of the appeal. (at p583)

3. The short facts are that the immigrant was given a dictation test under s. 5(2) of the Immigration Act 1901-1949 which he failed to pass and was prosecuted before a magistrate under s. 5(6) of that Act and sentenced to six months' imprisonment. He appealed against the severity of the sentence to quarter sessions and the chairman stated the above case for the opinion of the Supreme Court. The chairman did not indicate whether he proposed to release the immigrant on a bond and not to sentence him if he had the power to do so under s. 20 of the Crimes Act 1914-1950. In my opinion he has no such power. Section 20 applies in terms to any person convicted of any offence against the law of the Commonwealth and the immigrant was convicted of such an offence. The section must therefore apply to a conviction under s. 5(6) of the Immigration Act unless the provisions of that Act are sufficient to imply an intention to the contrary. (at p583)

4. In my opinion these provisions are sufficient for this purpose. The giving of a dictation test to an immigrant is not for the purpose of testing his education. It is given so that his failure to pass the test (and it can be assumed that he will fail), will convert him into an immigrant deemed to be a prohibited immigrant offending against the Act. Such a person is under s. 5(6) guilty of an offence. The footnote to the sub-section is as follows: "Penalty: Imprisonment for six months, and, in addition to or in substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister". That footnote must, in accordance with s. 41 of the Acts Interpretation Act 1901-1950 , be read as indicating that any contravention of the sub-section shall be punishable upon conviction by a penalty not exceeding six months' imprisonment. The conviction and imposing of a sentence of imprisonment is an exercise of judicial power and could only be done by a court, whereas the decision to deport is an executive act, but the footnote states specifically that the power of the Minister to deport is in addition to or in substitution for such imprisonment and is therefore in terms conditional upon the court imposing a sentence of imprisonment. The court has power to impose a nominal term of imprisonment only, but it must be assumed that courts will act reasonably and that, unless it was clear that an immigrant who gained his liberty could easily be found and re-arrested, the court would impose a sufficient sentence to allow the Minister to decide whether to make an order for his deportation when pursuant to s. 7AA of the Immigration Act the imprisonment would cease for the purpose of deportation. If the sentence was insufficient to keep the immigrant in gaol pending arrangements for his deportation, he could be arrested and kept in custody under s. 8C of the Immigration Act. (at p584)

5. The Immigration Act, in ss. 7AA and 7A, contains specific provisions subject to which an immigrant who has been convicted of an offence under s. 5(6) may be released on bail if he does not appeal and pending the hearing of his appeal if he appeals. These specific provisions, coupled with the footnote to s. 5(6), appear to me to provide a complete code where an immigrant is convicted of an offence under s. 5(6) of the Act. He must first be convicted and sentenced to a term of imprisonment because both conviction which justifies a sentence of imprisonment and imprisonment are conditions precedent to the exercise of the executive power to deport. He must be kept in prison for the period of his sentence unless he is deported or he is let out on bail pursuant to s. 7AA or s. 7A. Section 20 of the Crimes Act contemplates that a person who is released upon giving security to be of good behaviour shall remain at liberty and not be imprisoned for the offence of which he has been convicted provided he behaves and performs the conditions subject to which he has been released. But if an immigrant convicted under s. 5(6) was so released, even where a condition of his release was that he should leave the Commonwealth within a certain period, the Minister could nevertheless decide compulsorily to deport the immigrant and arrest and detain him pending deportation under s. 8C of the Act. The bonds of the sureties under s. 20 of the Crimes Act would then be liable to be estreated, although it was the action of the Minister which prevented the immigrant from complying with the condition upon which he had been released by the court. (at p584)

6. For these reasons I am of opinion that the Supreme Court was right and special leave to appeal should be refused. (at p584)

FULLAGAR J. In this case I agree generally with the judgment of my brother Kitto but I wish to add certain observations. (at p585)

2. Section 20 of the Crimes Act 1914-1950 is quite general in terms. In terms it applies to every person convicted of an offence against the law of the Commonwealth. It cannot, in my opinion, be held inapplicable to an offence created by a particular Act unless provisions are found in that Act which exclude it expressly or by necessary implication. If it is not expressly excluded, it is not to be held excluded unless it is reasonably clear that its application would lead to some inconsistency or incongruity. (at p585)

3. Section 5(6) of the Immigration Act 1901-1949 is a very badly constructed and confused provision. It creates an offence (an offence, of course, against the law of the Commonwealth) and concludes: "Penalty: Imprisonment for six months, and, in addition to or substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister". It thus treats as co-ordinate two things which are not co-ordinate but are of a radically different nature. The imposition of a sentence of imprisonment is a judicial act: the making and the carrying out of an order for deportation are executive acts. What the provision must, I think, be taken to mean is that, after conviction, the court may impose a sentence of imprisonment and the Minister may make an order for deportation and carry that order into effect. The words used cannot, in my opinion, fairly be taken to mean more than that. I am quite unable to accept the view that the imposition of a term of imprisonment by the court is a condition of the Minister's power to deport. (at p585)

4. The Full Court took the view that the words "Penalty: Imprisonment for six months" meant that a conviction must necessarily be followed by a sentence of imprisonment for a term of six months. In other words, it was held that the words prescribed a minimum, as well as a maximum, penalty. This view may not be necessarily decisive of the question of the applicability of s. 20 of the Crimes Act, but, in any case, I am, with respect, unable to accept it. I am not able to see any real reason for saying that the construction of the words in question is not governed by s. 41 of the Acts Interpretation Act 1901-1950, which requires those words to be construed as providing for a maximum penalty. The Full Court considered that the expression "imprisonment for not more than six months", which occurs in s. 7, was to be contrasted with the language used in s. 5(6). The difference in language is, as Kitto J. has pointed out, explained by the fact that s. 7 was originally enacted before, and s. 5(6) not until after, the enactment of what is now s. 41 of the Acts Interpretation Act 1901-1950. And the difference in language seems indeed rather to support the inference that the same thing is intended, not that different things are intended. If s. 5(6) and s. 7 dealt with mutually exclusive subject matters, the contrast might indeed support the inference that different meanings were intended. But the two provisions appear to overlap, the ground covered by s. 7 including the whole of the ground covered by s. 5(6). In these circumstances the presumption must be that the same penalty is intended for the same offence. There is also a reason of substance for supposing that the penalty prescribed by s. 5(6) should be a maximum penalty and not a fixed penalty. For s. 5(6) operates to create a number of offences which would naturally be regarded as of differing degrees of seriousness. In each case the decisive element in the offence itself is failure to pass a dictation test. But a case in which the person charged had entered the Commonwealth lawfully, and was guilty merely by virtue of the application of s. 5(2), might well be regarded as meriting a less severe penalty than a case in which the person charged had entered by means of a forged passport and was guilty by virtue of the application of s. 5(1)(c). (at p586)

5. The argument that s. 20 of the Crimes Act does not apply to cases under s. 5(6) of the Immigration Act rests mainly on the inference that the judicial power to order imprisonment is given in aid of the executive power to order deportation, and on inferences from the provisions of ss. 7AA and 7A of the Immigration Act. (at p586)

6. It is, I daresay, true to say that the power to impose a sentence of imprisonment on a person convicted under s. 5(6) or s. 7 was not given to the courts without regard to the possible desirability of keeping a convicted person in custody pending a decision of the Minister as to his deportation. But I can see no justification for saying that herein lay the sole purpose of that power. Such a consideration may account for the fact that no power is given to impose a fine on a convicted person. But the fact remains that what the courts are empowered to do is to impose a sentence, a punishment. What is to be imposed follows on a conviction for an offence, and is, in name and in substance, a penalty. I can find no reason for saying that this penalty is of any nature different from that of any other penalty which may be imposed on conviction of an offence against the law of the Commonwealth. (at p586)

7. There is, I think, considerable force in the argument based on ss. 7AA and 7A. But I think the most that can be said is that these sections suggest, to one reading them in their present form, that those responsible for them had not in mind the provisions of s. 20 of the Crimes Act. Actually the substance of what is now s. 7AA appeared in the original Act of 1901. Section 7A was inserted by s. 5 of the Act of 1925. The Crimes Act was first enacted in 1914, and the original enactment contained s. 20 in a form which has not been altered in any material respect. (at p587)

8. There is no necessary inconsistency or incongruity in the existence of s. 20 of the Crimes Act alongside s. 7AA or s. 7A of the Immigration Act. Section 7AA provides that "any imprisonment" imposed for an offence against s. 5 or s. 7 shall cease "for the purpose of deportation" or if the offender, with the authority of the Minister, finds two approved sureties in a prescribed amount for his leaving the Commonwealth within a prescribed period. This provision applies if a sentence of imprisonment is imposed by the court. It does suggest that any release after conviction is to be at the discretion of the Minister. But this is not, in my opinion, enough to exclude the application of s. 20 of the Crimes Act. If that section is applied, the condition of the application of s. 7AA is not fulfilled. The case is not one in which "any imprisonment" is imposed, and s. 7AA simply does not apply. Section 7A provides that, where a person is convicted under s. 5 or s. 7 and appeals against his conviction, he is not to be released on bail except on certain conditions which involve approval of sureties by the Collector or a Sub-collector of Customs. Again the provision suggests that any release after conviction is not to be at the mere discretion of the court. But again this is not, in my opinion, enough to exclude s. 20 of the Crimes Act. Bail pending appeal is necessary only if a sentence of imprisonment is imposed. If s. 20 of the Crimes Act is applied, no bail is necessary, and s. 7A simply has no application. Section 20 can live alongside s. 7AA, and can live alongside s. 7A. And, unless it is impossible for s. 20 to live alongside either s. 7AA or s. 7A, neither of those sections, in my opinion, affords sufficient reason for excluding the application of s. 20 to convictions for offences against s. 5 or s. 7. (at p587)

9. The case is clearly, I think, of sufficient importance to justify the granting of special leave. In my opinion, special leave to appeal should be granted, and the appeal allowed. (at p587)

KITTO J. This is an application for special leave to appeal from a rule of the Supreme Court of New South Wales sitting as the Court of Criminal Appeal. The rule answered in the negative the following question which had been submitted to the Court in a case stated by a chairman of quarter sessions:- "Do the provisions of s. 20 of the Crimes Act 1914 (as amended) apply to a conviction under s. 5 sub-s. (6) of the Commonwealth Immigration Act 1901 (as amended)?" (at p588)

2. Section 20 of the Crimes Act 1914-1950 is a general provision, expressed to apply in respect of any person convicted of an offence against the law of the Commonwealth. It authorizes the court, if it thinks fit to do so, to release any such person without passing sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court that he will be of good behaviour for such period as the court thinks fit to order and will during that period comply with such conditions as the court thinks fit to impose. The section also authorizes the court to order the release of any such person on similar terms after he has served any portion of his sentence. It goes on to provide, inter alia, that if any person who has been released in pursuance of the section fails to comply with the conditions upon which he was released, he shall be guilty of an offence, and liable to imprisonment for the period provided by law in respect of the offence of which he was previously convicted. (at p588)

3. Sub-section (6) of s. 5 of the Immigration Act 1901-1949 provides that any person who is, by virtue of the section, deemed to be a prohibited immigrant offending against the Act shall be guilty of an offence; and at the foot of the sub-section appear the words: "Penalty: Imprisonment for six months, and, in addition to or substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister". (at p588)

4. A person convicted under s. 5(6) is, of course, convicted of an offence against the law of the Commonwealth. Prima facie, therefore, the provisions of s. 20 of the Crimes Act empower the court, without passing any sentence upon him, to order his release upon giving security for his good behaviour and for his compliance with such conditions as the court thinks fit to impose. If this presumptive construction is to be rejected, it must be for the reason that there is to be found in the Immigration Act an expression or an implication of a contrary intention. Nowhere in the Act is such an intention expressed, but the court is invited to hold that the necessary implication may be found by a consideration of ss. 7, 7AA, and 7A, together with s. 5 itself. Moreover, it is said, the conviction of an offender under s. 5(6) is provided for primarily in order to facilitate deportation, and the imprisonment which may be imposed in the event of such a conviction is intended, not as a punishment, but as a means of keeping the convicted person in custody while the Minister considers whether his deportation should be ordered. Security for good behaviour, the argument proceeds, is altogether inappropriate in the case of a conviction which does not connote any criminality in conduct; and a power to release a convicted person upon giving such security would be inconsistent with the primary object of detention pending a decision on the question of deportation. (at p589)

5. It should be recognized at once that an "offence" under s. 5(6) does not necessarily involve any element of wrongdoing. A person is deemed, by virtue of s. 5, to be a prohibited immigrant offending against the Act if he fails to pass a dictation test which he has been required to pass either (under sub-s. (1)) at any time after the happening of any one of certain specified events, or (under sub-s. (2)) within five years after he has entered the Commonwealth. His offence under s. 5(6) is then complete, even though (at least if his case falls under sub-s. (2)) his conduct has been exemplary. His deportation is a matter for executive decision by the Minister, and, if ordered, it does not in any sense partake of the character of a punishment: Mahler v. Eby (1924) 264 US 32, at p 39 (68 Law Ed, at p 554) cited by Starke J. in R. v. Goldie; Ex parte Picklum [1937] HCA 65; (1937) 59 CLR 254, at p 264 . His imprisonment on conviction, on the other hand, is a matter for the sentence of the court; but there may be no purpose to be served by the imprisonment except that of keeping the "offender" available for immediate deportation in the event of the Minister's deciding upon that course, and it is quite right, therefore, to say that the provision for imprisonment is ancillary to the provision with respect to deportation. (at p589)

6. But that is not to say that there is any inherent incompatibility between a conviction under s. 5(6) and the release of the convicted person on his or her giving security to be of good behaviour and to comply with any other conditions imposed by the court. It may well happen that, by reason of his personal characteristics, state of health or other circumstances the court considers it undesirable to send him or her to gaol, and yet that the court is satisfied that all practical considerations in relation to deportation will be fully met if security is taken that the person will report periodically to the immigration authorities, or will remain in a specified area, or will perform other conditions ensuring his or her instant availability if deportation is ordered, and will be well-behaved while the question of deportation is being considered. It is true that the ancient power of magistrates to bind over to be of good behaviour "all them that be not of good fame" required for its exercise some "cause of scandal", some conduct which was contra bonos mores if not actually contra pacem: Blackstone's Commentaries on the Laws of England, 15th ed. (1809), vol. 4, p. 256; R. v. Sandbach; Ex parte Williams (1935) 2 KB 192, at p 197 . It was a power to oblige those persons whom there was a probable ground to suspect of future misbehaviour "to give full assurance to the public, that such offence as is apprehended shall not happen": Blackstone's Commentaries on the Laws of England, 15th ed. (1809), vol. 4, p. 251. It is not to be supposed that a conviction under s. 5(6) of the Immigration Act would provide an occasion for the exercise of that power. But the power conferred by s. 20 of the Crimes Act is not similarly conditioned. It arises, according to the express terms of the section, whenever a person is convicted of an offence against the law of the Commonwealth; and it is obvious that by no means all such offences give cause for apprehension of future misbehaviour. The fact, therefore, that a conviction under s. 5(6) does not necessarily betoken any wrongdoing affords no ground for treating s. 20 as inapplicable. Nor should I regard that section as inapplicable because of an apprehension, which the learned judges of the Supreme Court appear to have felt, that a bond to be of good behaviour would oblige a person, convicted under s. 5(6) by reason of having failed to pass a dictation test under s. 5(2), not to continue to commit or repeat the "offence". The obligation of such a bond is against actual misbehaviour: Blackstone's Commentaries on the Laws of England, 15th ed. (1809), vol. 4, pp. 255, 257; Lansbury v. Riley (1914) 3 KB 229, at p 234 . Their Honours suggested that there would be no method, short of leaving the Commonwealth, whereby an "offender" convicted under s. 5(6), if he were to give security for good behaviour, would cease to continue committing the "offence" of which he had been convicted. That is true; but, with respect, I cannot think that it throws any light upon the present problem. It does not mean that the conditions of the bond would be broken automatically, for it has never been held, so far as I can find, that a bond to be of good behaviour may be broken by doing nothing at all. (at p590)

7. The position therefore is that the Immigration Act has taken the procedure of the criminal law, the procedure of charge, conviction and sentence, and has made it applicable for the peculiar purposes of the Act; but there is nothing in the nature of those purposes to require the conclusion that that procedure has been adopted with the exception of that feature of it which s. 20 of the Crimes Act supplies. Such a conclusion must rest, if it is to be supported at all, on the construction of s. 5(6) itself, considered in the light of the other sections I have mentioned. (at p591)

8. It was along this line, in the main, that the Supreme Court approached the problem. Their Honours construed s. 5(6) as requiring that a sentence of six months' imprisonment be imposed in every case of a conviction under that sub-section. If that construction be accepted, it follows clearly enough that s. 20 of the Crimes Act is by necessary implication excluded. But there are serious objections to this view, and counsel for the Crown offered no argument in support of it in this court or, as we were informed, in the court below. The most obvious, and as I think a fatal, objection is that the penalty provision of s. 5(6) is enacted in a form which since 1904 has provided the accepted method of taking advantage of the provision of the Acts Interpretation Act 1901-1950 that the penalty set out at the foot of a section or sub-section shall indicate that any contravention shall be an offence punishable upon conviction by a penalty not exceeding the penalty mentioned. The provision is now in s. 41 of the Acts Interpretation Act 1901-1950, but when s. 5(6) was enacted, in 1935, it was in s. 3 of the Acts Interpretation Act 1904. It is true, as was pointed out in the Supreme Court, that s. 7 of the Immigration Act provides a verbal contrast with s. 5(6), in that it expressly makes the imprisonment it prescribes a maximum sentence only. "Imprisonment for not more than six months" is the expression it uses. But s. 7 was in the Act as originally passed in 1901; and at that time there was no general provision such as that which was to be introduced in s. 3 of the Acts Interpretation Act 1904. The difference in verbiage is sufficiently accounted for by that fact and does not suggest a difference in intention. Moreover the history of the Immigration Act, to which it will be necessary to refer in a moment, indicates that the consequences of a conviction were intended to be the same under s. 5(6) as under s. 7. (at p591)

9. The relevant provision of the Acts Interpretation Act was not adverted to in the reasons for judgment of the Supreme Court, and their Honours were influenced by inferences which they drew from ss. 7AA and 7A. The argument presented for the Crown depends largely upon drawing the same inferences; but it relies upon them, not as showing that the term of imprisonment provided for in s. 5(6) is a fixed term to be imposed in all cases, but as showing that even though that term is prescribed as a maximum, there must be some term of imprisonment imposed in every case, however short the term may be, and that for that reason s. 20 of the Crimes Act is inapplicable. There are some obvious difficulties in the way of this contention. The notion that the policy of the sub-section is to provide for keeping the convicted person in custody pending possible deportation must be abandoned if the court is at liberty to fix as short a period of imprisonment as it thinks proper. Indeed if there is no minimum period of imprisonment there seems to be no advantage in denying to the court the power to release on a bond. On the contrary, there is a distinct disadvantage to the immigration authorities, for if in a particular case the court considers imprisonment to be inappropriate it is surely better that the court should have power to bind the convicted person to comply with conditions than that it should have to impose a brief period of imprisonment and leave the convicted person subject to no restriction of movement or conduct thereafter. The provisions which are said to produce this somewhat strange result must now be considered, and it is helpful to consider them in the light of their history. (at p592)

10. Section 5(6) was inserted in the Act by the amending Act No. 13 of 1935, s. 2. Before its enactment the state of the legislation so far as material, was as follows. The Immigration Act 1901-1933 dealt with two classes of persons. A person answering one or more of the descriptions contained in s. 3 was "a prohibited immigrant". An immigrant as to whom any of the facts mentioned in sub-s. (1) or sub-s. (2) of s. 5 existed was, by force of those sub-sections themselves, "deemed to be a prohibited immigrant offending against the Act". Section 7 provided that a prohibited immigrant entering or found within the Commonwealth in contravention or evasion of the Act should be guilty of an offence against the Act and liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment should be liable pursuant to any order of the Minister to be deported from the Commonwealth. There was a proviso to the effect that the imprisonment should cease for the purpose of deportation, or, subject to authority being granted by the Minister, if the offender should find two sureties, each in the sum of 100 pounds and each approved by the Collector of Customs or Sub-collector of Customs at the port concerned, for his leaving the Commonwealth within one month. There was also a provision, in s. 7A, that where a person was convicted under s. 7 and appealed against his conviction, he should not be released on bail unless he should find two sureties, each in the sum of 100 pounds and each approved by the Collector of Customs or Sub-collector of Customs at the port concerned, for his appearance at the hearing of the appeal. (at p592)

11. While the Act stood thus, a person who was not a prohibited immigrant under s. 3, but was deemed by force of sub-s. (1) or sub-s. (2) of s. 5 to be a prohibited immigrant offending against the Act, might be dealt with either by means of a prosecution for committing the offence which he was deemed to be committing, or, being found within the Commonwealth, by means of a prosecution for the offence created by s. 7. That sub-ss. (1) and (2) of s. 5 created offences separate and distinct from the offence created by s. 7 was made clear by the case of Griffin v. Wilson [1935] HCA 16; (1935) 52 CLR 260 in this Court. It was there decided that certain evidentiary provisions, contained in sub-s. (3) of s. 5, were applicable only if the charge were laid under s. 5, and not if it were laid under s. 7. This was a matter of importance to the immigration authorities, because a prosecution under s. 5 had the disadvantage that a conviction produced no other consequence than liability under s. 18 to a penalty not exceeding 50 pounds and in default of payment imprisonment for a period not exceeding three months. In particular, the conviction did not give rise to any power to deport the offender. A conviction under s. 7, on the other hand, enabled the Minister, as has already been mentioned, to order deportation. It was evidently for the purpose of relieving the immigration authorities from the necessity of choosing either to obtain the evidentiary advantages offered by s. 5 and have no power of deportation on conviction, or to obtain a power of deportation on conviction but enjoy no evidentiary advantages for the purpose of securing the conviction, that the Parliament, only four days after Griffin v. Wilson [1935] HCA 16; (1935) 52 CLR 260 was decided, enacted the Immigration Act 1935 (Act No. 13 of 1935). The first amendment made by this Act consisted of the addition of the present sub-s. (6) to s. 5. The effect of this was twofold: First; s. 18, which makes a general provision for a pecuniary penalty "where no higher penalty is expressly imposed" became inapplicable to a conviction under sub-ss. (1) or (2) of s. 5, the power of the court on such a conviction being conferred by the words "Penalty: Imprisonment for six months". Secondly, the next words: "and, in addition to or substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister", created the executive power of deportation which previously did not arise upon such a conviction. The second amendment which the 1935 Act made consisted in the addition to s. 7 of the necessary words to make it apply to a person deemed to be a prohibited immigrant offending against the Act as well as to a prohibited immigrant entering or found within the Commonwealth in contravention or evasion of the Act. Thus the amendments recognized and preserved the position that s. 5 created offences as well as s. 7; but there is no longer any difference between the two sections in regard to the consequences which they attach to a conviction. To complete the assimilation of the sections in this respect, the amending Act turned the proviso to s. 7 into a separate section numbered s. 7AA, and amended both it and s. 7A to make them apply to a conviction under s. 5 as well as to a conviction under s. 7. Of course s. 7, in so far as it applies to a person deemed to be a prohibited immigrant offending against the Act, now overlaps s. 5; but this serves to stress the improbability of the six months' imprisonment provided for in s. 5(6) being other than a maximum. (at p594)

12. Section 7AA and s. 7A were both relied upon by the Crown, but in my opinion they throw no light on the problem. The former section gives the Minister a power of terminating "any imprisonment imposed" for an offence against s. 5 of s. 7, The power is conferred for the purpose of deportation, or upon approved sureties being found for the offender's leaving the Commonwealth within one month. Thus it merely prevents the imprisonment from standing in the way either of a compulsory deportation or of a voluntary departure which is assured by the finding of the necessary sureties. Section 7A deals with the case where a person who has been convicted under s. 5 or s. 7 is imprisoned and appeals against his conviction. The section contemplates that even such a person may be released on bail pending his appeal, but it makes his release conditional upon his finding approved sureties for his appearance at the hearing of the appeal. This restriction upon the granting of bail pending appeal when a sentence of imprisonment has in fact been imposed seems to me to provide no ground whatever for inferring an intention, contrary to the provision which s. 20 of the Crimes Act makes with respect to offences generally, that some term of imprisonment must be imposed on every person convicted under s. 5(6). (at p594)

13. Then a point is made that both in s. 5(6) and in s. 7 the Minister is empowered to order deportation "in addition to or substitution for" the imprisonment; so that (it is said) a sentence of imprisonment for some term is made a condition precedent to the power of deportation, and, for that reason, deportation being what the legislature was primarily concerned to provide for, there is no room for the application of a general section of the Crimes Act which enables security for good behaviour to be taken instead of sentence being passed. It may be accepted as true that the primary object of the provisions made in the Act, with respect to a prohibited immigrant and a person deemed to be a prohibited immigrant offending against the Act, is to empower the Minister in his discretion to order deportation. But while it is, of course, very convenient in many cases that a person whom the Minister may decide to deport should be taken into custody, that is not by any means the chief object of adopting the procedure of the criminal law. The main advantage which it affords is not the physical advantage of having the person charged under lock and key pending trial or after his conviction, but the legal advantage of having an adjudication by a court, precluding the possibility of its being thereafter held that any condition precedent to the exercise of the power to order deportation has not been fulfilled. Thus it is the conviction and not the sentence that is of primary importance for deportation purposes; what happens to the offender pending the Minister's decision as to whether he should or should not be deported is of secondary consequence. To read the words "in addition to or substitution for such imprisonment" as making the power of deportation conditional upon the imposition of a sentence of imprisonment would be to attribute to the legislature an intention, while legislating on the subject of immigration, to subordinate the deportation of a person for whose deportation the provisions of s. 5(1) and (2) are devised, to the subsidiary matter of imprisonment for an offence which may be purely notional. The words quoted ought not to be so understood. Rather do they mean that a person convicted shall be liable to deportation as well as to imprisonment, and that the Minister may order deportation either in addition to or in substitution for any imprisonment which the court may impose. (at p595)

14. I am unable to see, either in the considerations which influenced the Supreme Court or in those upon which the Crown relies, any sufficient reason for placing upon the Immigration Act a construction inconsistent with the application of s. 20 of the Crimes Act when a person is convicted of that offence against the law of the Commonwealth of which in certain circumstances s. 5(6) makes him guilty. (at p595)

15. In my opinion special leave to appeal should be granted. As the matter was fully argued, the parties agreeing that in the event of special leave being granted the appeal should be disposed of immediately and without further argument, the appeal should be treated as duly instituted and heard instanter, and it should be allowed. The rule of the Supreme Court should be discharged and in lieu thereof it should be ordered that Question (1) in the stated case be answered: Yes. (at p596)

ORDER

Special leave to appeal granted. Appeal allowed. Rule of the Supreme Court of New South Wales discharged. In lieu thereof order that Question (1) in the case stated be answered in the affirmative.