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Tuesday, 25 November 1930


Senator MCLACHLAN (South Australia) . - There are two angles to this matter. As regards one, Senator Daly has relieved my mind by saying that this legislation will have no application to Ah You, who took his case from the humblest tribunal in Western Australia right up to the High Court and succeeded in convincing that august tribunal that his contentions were right. Pursuant to the policy always adopted by governments., I take it that the legislation the Senate is now asked to pass will not be applied to Ah You unless there is some very definite reason within the ministerial knowledge to depart from that principle. We can, therefore, ' eliminate from this discussion all reference to the personal equation or to any possibility of injustice towards this individual. The proceedings in this particular case in which honorable senators appear to have taken some interest, are summarized in the Argus Law Reports in this way -

Under the "Immigration Act 1901-1925," the defendant was charged that lie being an immigrant who, on 21st March, 1930, failed to pass the required dictation test, was a prohibited immigrant and had evaded an officer. The information was laid under section 5 (1) of the act, which enacts that any immigrant who evades an officer may, if found at any time thereafter within the Commonwealth, be required to pass the dictation test, and if he fails he shall bo deemed a prohibited immigrant. It was established that the defendant was in Australia in 1906; and there was some evidence that he had entered the Commonwealth in 1895. There was no evidence that lie had evaded an officer, but the information relied upon section 5 (3) of the act as rendering the aderments in the information prima facie proof of that fact.

Held that, though the relevant provisions <>f 5. (i) of the Immigrant Act 1901-25 are identical with the relevant provisions of the Immigration Restriction Act 1901-1908 (the enactment in force at the time of the alleged evasion of an office) ), yet, as the provisions of section 5 (3.) of the Immigration Act 1901-25 were not enacted until after the alleged evasion they were inapplicable to the case and there being no proof of any evasion the prosecution failed.

On appeal to the High Court the law was held not to have the effect which this Parliament intended.


Senator Lynch - We are asked to amend that.


Senator McLACHLAN - Yes, so as" to give full effect to the intention of Parliament. The effect of this legislation was discussed when the principal act was under discussion. While I agree that this is a hard case, subject to the Minister's assurance that- it will not apply to this person, I shall support the bill. Action is not taken without reason; but it seems that as this person escaped the vigilance of the law for 24 or 25 years, he might be allowed to remain here. The gist of the judgment of three distinguished members of the High Court Bench is -

The "Immigration Act, 1901-1925," only operates and applies to immigrants, who enter Australia after the date of its enactment.

Having regard to the exposed condition of our Australian coast, the Government has introduced this drastic provision regarding the onus of proof. Having the assurance of the Minister that this person will not be affected-


Senator Lynch - There may be others.


Senator McLACHLAN - Other cases can be dealt with as they arise. I suggest that honorable senators support the measure, which is very essential, because at present proof of evasion, in the strict sense of the term, has been found utterly impossible.

Senator SirHAL COLEBATCH (Western Australia) [9.37]. - I sympathize entirely with the views expressed by Senator Lynch on this subject. If the case quoted by Senator McLachlan is the only reason, for bringing forward this amending measure, it is entirely inadequate. This provision is intended to deal only with law abiding people; it has no specific reference to offences against the law. Without the amendment now proposed any immigrant who entered the Commonwealth since the 1924 act was passed, is undoubtedly subject to that act, so that the only persons to whom this amending measure can apply are those who entered the Commonwealth prior to 1924. I think it is generally held that only the strongest possible reasons justify the provision in an act of Parliament of an obligation upon n defendant to prove his innocence.


Senator Daly - Is it not possible for such persons to submit false evidence that they were in Australia before 1924?


Senator Sir HAL COLEBATCH - They have to establish the fact that they were in Australia before 1924. The purpose of the bill is to make the amendment apply to the 1924 act, which is in itself sufficient to deal with an immigrant coming to Australia subsequent to 1924.


Senator Daly - Such persons could bring false evidence to show that they were in Australia before 1924.

Senator Sir HALCOLEBATCH.They would have to bring evidence that would satisfy the court. The court can use its discretion. It is a highly objectionable practice to compel any defendant to establish his innocence, and one which should be resorted to only in extreme cases.


Senator Sir George Pearce - We wish to make it effective without that.

Senator Sir HALCOLEBATCH.The law at present provides that any person who has entered Australia after the passing qf the 1924 act has to establish his innocence. The bill provides that the amendment effected in this section shall be deemed to have commenced on the date of the commencement of the Immigration Act of 1924. This is to embrace people who entered Australia before 1924. We should have stronger reasons than those quoted by Senator McLachlan for imposing upon people who have been in the country for more than six years the obligation to prove their innocence.


Senator Sir George Pearce - They may have entered in defiance of the law.


Senator Sir HAL COLEBATCH - Surely there must, be some point at which the Crown should prove that such persons acted illegally.


Senator Sir George Pearce - Parliament intended such action tobe illegal since 1901.

Senator Sir HALCOLEBATCH.But Parliament has amended the act. on half a dozen different occasions, and as it stands to-day it is clear that the onus of proof is upon any person who enters Australia after 1924.


Senator Daly - In 1924 it was intended that it should he retrospective to 1901.

Senator Sir HALCOLEBATCH.This Parliament sitting in the year 1930, with no otherevidence before it than the case the Government cited, should not legislate in this way, particularly as the Government has power under other legislation to deport undesirable persons. In the case of persons who have been here for a great number of years the onus should he upon the Crown to prove when they came into this country.


Senator McLachlan - The onus will not be upon him. The Minister said that the Government does not intend to interfere in this case.


Senator Sir HAL COLEBATCH - Then who is it to affect?


Senator McLachlan - It is to strengthen the law.

Senator Sir HAL. COLEBATCH.I shall want stronger reasons than those already furnished before I support retrospective legislation which will place upon persons the obligation of proving their innocence.







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