Cronin, Kathryn --- "Controlling Immigration: Australian Legislation and Practice" [1999] ALRCRefJl 19; (1999) 75 Australian Law Reform Commission Reform Journal 6
Reform Issue 75 Spring 1999
This article appeared on pages 6 – 9 of the original journal.
Controlling immigration: Australian legislation & practice
By Dr Kathryn Cronin*
Australian history resonates with popular and political anxieties about uncontrolled or under-controlled immigration, with concerns about the size, composition or profile of the immigrants arriving here. Such fears are often fanciful.
Australia has a most effective control against immigration - its geography. It does not share a land border with any other country. Immigrants to Australia do not arrive in secret compartments in cars or lorries, swim across border rivers, or dash across its land borders as they do in many other countries. Ships, airlines and the occasional fishing boat provide the carriers for Australia’s arrivals. This geographical isolation provides a justification for Australia to implement legislation to control the numbers and types of immigrants to Australia. If almost all your arrivals disembark from established airline and shipping carriers, they are amenable to legislative control. It is relatively easy to regulate in law the procedures for the arrival and entry of such passengers. Australia relies upon legal solutions to control immigration because the laws work.
Immigration to Australia must be seen to be controlled. Indeed, the first legislation passed by the new Australian Commonwealth was the Immigration Restriction Act 1901 (Cth). This was no coincidence. A significant impetus for federation was the desire to have national immigration legislation. The Immigration Restriction Act was the first Australian immigration legislation but in the 50 years before federation Australian colonial governments had passed, repealed and amended various legislative schemes to control immigration. An analysis of such, and our recent immigration laws, helps us to understand how legislation is constructed to contain immigration.
Colonial legislation
Britain’s 19th century immigration procedures were relatively relaxed. Under its Aliens Act 1836, ship masters were required to report the numbers and names of alien passengers to customs, but it was assumed that aliens from ‘friendly’ countries would not be refused entry or stay. Immigration control was reserved for times of war, when foreigners from ‘enemy’ countries could be denied entry or detained.1
Australia, as a British colony, inherited this liberal regime. The thousands of immigrants who arrived on the Victorian and New South Wales goldfields were admitted without restriction, at least until their number included Chinese. Victoria’s then Governor Hotham explained to the British Secretary of State that, given the numbers of Chinese arrivals, it was impossible to uphold the ‘old world’ principle of encouraging and protecting the foreigner, or at least these particular foreigners.2
Victoria’s answer to the Chinese arrivals - an Act to Make Provision for Certain Immigrants 1855 - implemented a control device now much used in modern immigration law, namely, the carrier sanction. The legislation stated that the owner, charterer or master of a ship carrying Chinese immigrants could be fined if they carried to Victoria, Chinese in excess of one for every 10 tons of ship’s tonnage or did not guarantee payment by the Chinese passengers of an arrival tax of £10.3 The Chinese passengers so restricted were identified, not by their nationality, but their ethnicity. Customs officials could decide ‘upon their own view and judgement’ whether any person before them had the appearance of being a ‘person of Chinese race’. This was to ensure that Chinese from British dependencies such as Hong Kong or Singapore, who may have been British subjects, were caught by the restrictive law. The Act was effective to limit the numbers of Chinese arriving in Victoria, although Chinese arrivals did not really decline until all the Australian colonies had enacted similar legislation. It was otherwise easy for the ship owners to by-pass the Victorian restriction by disembarking their Chinese passengers in New South Wales or South Australia.
Within the prevailing, racist ideology, it was not enough that colonial governments control Chinese arrivals, they were pressured to exclude the Chinese who had managed to secure entry to Australia. Colonial governments arranged this exclusion not via immigration legislation but by discriminatory legislation which imposed selective taxes on Chinese, restricted their ability to work as miners, carpenters, fishermen and domestic servants and denied them the opportunity to purchase land, to be naturalised as British subjects or given consular representation. This array of discriminatory legislation directed at ‘persons born to a Chinese father or mother’, denied Chinese the right to participate in colonial political, economic or social life, forcing most of them to return to China. There were very few remaining in Australia by the end of the 19th century.
Britain’s liberal immigration procedures were significantly eroded by such legislation. These Australian enactments were matched by similar laws in the British colonies of New Zealand, Canada and South Africa. The Privy Council effectively endorsed such legislation, confirming that a Chinese immigrant, as an alien, had no legal right expressible by action to enter British territory.4 The Australian High Court extended the principle of immigration control. The state was said to have ‘supreme’, ‘sovereign’ power to select the non-citizens it would permit to enter, to set the terms or conditions of their entry or stay and to deport them from the territory ‘for whatever reasons it thinks fit’.5 Modern restrictive immigration legislation had arrived.
Federation legislation
Colonial immigration legislation may have been effective in limiting Asian immigration, but it created diplomatic problems for Britain in its dealings with China, Japan and the Indian subcontinent. Not surprisingly, such countries resented discrimination against their nationals and their explicit designation as undesirable immigrants barred in several British colonies. The solution – termed the ‘Natal Formula’ – was devised by the British Province of Natal. Natal’s immigration legislation did not define the immigrants sought to be excluded, but gave power to its immigration officers to require any immigrants to be subjected to a dictation test in a European language chosen by the officer. Immigration officers could select the immigrants they did not want and devise a test they could not pass. Dictation tests could be applied on arrival or after entry. The test was a useful device to deny entry and to remove persons from the territory. In promoting the scheme, the British Secretary of State for the Colonies noted that such legislation would give the colonies all the power and discretion they wanted, in a form which ‘avoided hurt’ to particular nationalities.6
Australia’s Immigration Restriction Act 1901 (Cth) incorporated the Natal Formula. The Act stated that ‘prohibited immigrants’ could be removed from Australia. A ‘prohibited immigrant’ was ‘any person who fails to pass the dictation test’. Over the years, the test was used to deny entry or secure the removal of many non-Europeans as well as socialists, Irish republicans and anti-fascist campaigners. It became the cornerstone of the White Australia policy and political conservatism.7 Although the Act studiously avoided reference to non-Europeans as a class to be excluded, the application of the dictation test to such persons continued to give offence to countries in the region. Japan, in particular, was determined to prove in an international forum that discriminatory immigration policy was not simply a matter of domestic law, but a factor in regional relations.8
The White Australia policy was progressively dismantled. International and domestic campaigns and a series of significant legal challenges to the legislation and practice of the policy saw the repeal of the Immigration Restriction Act. The High Court held that immigrants could not be removed from Australia if they had become ‘absorbed’, and were ‘a constituent part of the Australian community’.9 The application of the dictation test was likewise controlled. The High Court declared that the test language must be one in common use in Europe, not an arcane dialect such as the Scottish Gaelic test administered to the anti fascist linguist, Egon Kisch, to ensure he failed the dictation.10 From 1973, officers choosing migrants were instructed to be ‘colour blind,’ and disregard the race of migrant applicants.
Current legislation
From 1989 the rules for the entry, stay and removal of all persons not Australian citizens have been exhaustively codified in legislation. Certain features of the control model continue to be controversial, but the selection of immigrants is now in accordance with transparent criteria. The significant distinction is between those here for a temporary purpose – students or visitors – and those arriving as migrants, or seeking, after entry, to obtain permanent residence. Those qualifying for permanent entry or stay generally are the partners, children or close family of Australian citizens or residents, are refugees or have high level business, professional or trade qualifications. Governments have tried to adjust the mix of these categories by limiting family and humanitarian and increasing skilled migrants. This is arranged using a well-established immigration control device – the visa.
The term ‘visa’ simply means a ticket or pass. In many countries it is the evidence that a person, not a citizen of the country, can enter or stay. Citizens do not need a visa, but have a right to enter and reside in their own countries. Australia is one of the few countries to operate a universal visa system, such that, with the exception of Torres Straits Islanders entering for traditional activities, every non-citizen requires a visa to enter and stay here.11 Non-citizens in Australia without a visa are required to be detained and removed. The requirement to have a visa extends even to visiting heads of state, although they are not expected to apply for such a visa before entry but are taken under the Migration Act 1958 (Cth) to qualify for the visa on arrival. Most non-citizens are expected to get a visa before arriving in Australia. Those arriving here without such are detained at the airport or when customs intercepts their boats. At any time there may be significant numbers of immigration detainees, some of them held for extended periods of time. This is the most controversial feature of Australia’s immigration law. Most of those detained seek recognition and residence as refugees.
The Migration Act details classes of, and the criteria for, visas. Non-citizens must qualify for a visa class to travel or stay here. There are some 70 different visa classes for which non-citizens can qualify. It is an elaborate, complicated scheme. The Minister can set quotas for the numbers of a particular visa class issued in any year so as to limit the persons qualifying. To qualify for a visa, applicants must satisfy all the relevant criteria. Decision makers have no discretion to bend the rules and grant a visa to a person who does not so qualify. ‘Hard’ cases cannot easily be accommodated. The Minister has some discretion to bend the rules, reserved for applicants who apply for review of an immigration decision. The Minister cannot be compelled to exercise this discretion and it is generally exercised sparingly.
Most decisions concerning visas, at least those made in respect of non-citizens in Australia, carry a right to merits review of the decision before the Migration or Refugee Review Tribunals. Where the tribunals make an error of law in their review, applicants can seek judicial review of such decisions in the Federal Court. Review applicants can remain in Australia pending the outcome of their challenge to the decision. This is the new battleground for immigration controls. Debates concerning immigration law no longer focus on the mechanisms for controlling numbers but on the features that insulate visa decisions from judicial review. These controls operate in a variety of ways. Governments want what they term ‘credible’ review to ensure that regulations are interpreted according to their intentions.12 The Migration Regulations are written with clear, concrete and prescriptive criteria. There are few criteria calling for subjective evaluations by tribunal or the judiciary. The regulations are frequently amended to modify decisions by courts and tribunals. Australia has also limited the grounds and decisions amenable to judicial review and the present government proposes a privative clause, which will insulate almost all immigration decisions from judicial review. The privative clause is presently being debated by federal parliament.
The control of decision making and review represents a principal objective of current immigration law. In this regard, Australia’s sounding of the retreat from judicial review echoes developments in Europe and the Americas. Such controls may give certainty and consistency in decision making, but limit the capacity to do justice in deserving immigration cases. The losers in this contest are not only the visa applicants seeking to enter or stay, but our own systems of accountability and justice.
*Dr Kathryn Cronin is a full time Commissioner with the Australian Law Reform Commission. She is an Associate Professor of Law at the University of New South Wales, and was previously legal consultant to the Parliamentary Joint Standing Committee on Migration and to the Refugee Review Tribunal. She has practised at the English Bar and has written extensively on citizenship, migration, refugee law and human rights.
Endnotes
1. TWE Roche The Key in the Lock: A history of immigration control in England from 1066 to the present day John Murray 1969, 56.
2. Hotham to Secretary of State Russell, 15 June 1855, Dispatch No 80, quoted in K Cronin Chinese in Colonial Victoria: The Early Contact Years PhD thesis Monash University 1977,48.
3. Act 18 Vic No 39, ss 3,4.
4. Musgrove v Chun Teeong Toy (1891) AC 272. The case involved a Chinese national excluded from Victoria who sought damages for wrongful imprisonment from the Victorian colonial government, which had refused to let him disembark from a ship in Melbourne.
5. See Robtelmes v Brennan [1906] HCA 58; (1906) 4 CLR 395, Pochi v MIEA [1982] HCA 60; (1982) 151 CLR 101.
6. RA Huttenback Racism and Empire: White Settlers and Colored Immigrants in the British Self –Governing Colonies 1830-1910 Cornell UP 1976, 139-54.
7. K Cronin ‘A Culture of Control: An overview of immigration policy-making’ in J Jupp & M Kabala, The Politics of Australian Immigration, 88-90.
8. See S Brawley The White Peril: Foreign Relations and Asian Immigration to Australasia and North America 1919-1978, UNSW Press Sydney, 47.
9. See Potter v Minahan (1908) 7CLR 277; R v MacFarlane: ex parte O’Flanagan & O’Kelly (1923) 32CLR 518.
10. R v Wilson Ex parte Kisch [1934] HCA 63; (1934) 52 CLR 234.
11. Most visitors are required to apply and qualify for a visa before travelling to Australia. New Zealanders qualify for their visas on arrival.
12. MIEA Second Reading Speech Migration Reform Bill 1992, CPD: HR 4 November 1992.