169 Cabinet Submission by Calwell

Agendum 1580 CANBERRA, 31 March 1949


The effect of the majority judgment of the High Court in the case of Mrs. O'Keefe is that if a person is admitted to Australia without being subjected at the time of entry to any of the tests laid down in Section 3 of the Immigration Act he is not a prohibited immigrant. In such circumstances a person cannot lawfully be given a certificate of exemption [1] authorising him to remain in the Commonwealth unless he has been subjected to, and failed to pass, a dictation test under Section 5(2) of the Act.

Under that Section the test can only be applied within five years from the date of a person's arrival in Australia.

2. For years past the certificates of exemption have been issued in preference to the dictation test as a means of controlling non- European immigration to Australia, because it was considered a more generous and tactful means of achieving the purpose of our restricted immigration policy.

3. The High Court's judgment removes from the Immigration Department's jurisdiction control over approximately four thousand non-Europeans who are now here on certificates of exemption. It also affects the Department's position in relation to thousands of displaced persons and other Europeans who have been admitted under certificates of exemption to ensure that they will remain in the employment to which they are allotted during their probationary period.

4. The non-Europeans include seamen, evacuees, amahs, overseas and local traders, assistants and substitutes for such traders, students, together with their wives and children. Seamen and evacuees were admitted during the war period on humanitarian grounds on the understanding that they would be returned to their own countries after the conclusion of hostilities.

5. In 1945 (18th June) Cabinet, in considering representations made by the Chinese Ambassador, Dr. Hsu Mo, that the certificates of exemption of certain categories of Chinese should be extended for three years, decided in giving approval for the extension of such certificates to reduce the period to two years, thereby making them effective only to the 30th June, 1947. War-time evacuees, seamen and other Asiatics were also dealt with in conformity with this decision. This concession was granted primarily on the grounds that owing to the shortage of shipping it was not practicable to arrange the repatriation of these people.

The shortage of shipping continued and it was not possible due to this and other causes, to remove all wartime evacuees and seamen by June, 1947. Of the 6,269 evacuees and seamen who came here 5,473 left voluntarily, including approximately 3,700 Indonesians, 1,500 Chinese and fen Malays.

6. It is the hard core of resisters consisting of approximately 800 Chinese and Indonesians who are now fighting the Government to prevent repatriation to their own countries. So far the High Court has upheld the appeal of one Indonesian, Mrs. Annie O'Keefe, and has granted temporary injunctions in the cases of three Chinese.

Under the law as it now stands, all war-time evacuees will be permitted to remain for permanent residence, a development never foreseen or even contemplated. In the whole period of nearly 50 years of Federation, no more than a couple of hundred Asiatics have been allowed to remain permanently and those only under conditions that had some relationship to their settlement here because of circumstances entirely different from those of war-time evacuees. In this connection it is interesting to note that, when I announced, after I became Minister for Immigration, that all Chinese evacuees and refugees must return to China, a Chinese Government spokesman at Nanking said that China would welcome the return of such nationals to their homeland and no representations have been made by Chinese diplomatic circles that any such Chinese citizens should be permitted to remain. Our trouble is not with the Chinese Government or, in fact, with any other Asiatic Government, but only with the individuals concerned.

7. The other classes of non-Europeans (mainly Chinese) were admitted under exemption in accordance with arrangements entered into with certain Eastern countries. Non-Europeans admitted under these arrangements are required to comply with certain standards laid down in regard to extent of trade done, class of employment, attendance at approved schools, etc., to enable them to remain here.

8. All of these people were admitted without being declared prohibited immigrants at the time of entry and were granted certificates of exemption after they had landed. According to the High Court judgment those certificates of exemption are ineffective. In the case of non-Europeans the great majority have been here for more than five years and cannot now be subjected to a dictation test and declared prohibited immigrants. It is not, therefore, possible under existing legislation to exercise any control over the great majority of non-Europeans now here or to take action for their removal from the Commonwealth. In the case of displaced persons and others who have been here less than five years it would be necessary in order to enable control to be retained over them to subject each one to a dictation test and, on failure to pass it, to issue them with certificates of exemption afresh.

9. The judgment will also affect the Department's administrative procedure in relation to future applications for the admission of non-Europeans, displaced persons and other aliens because to ensure that control can be retained over such persons it will be necessary to have them declared prohibited immigrants at the time of entry or alternatively to apply a dictation test shortly after landing before they can be issued with exemption certificates.

Either procedure would be objectionable in principle and would cause difficulty in administration.

10. It is abundantly clear, therefore, if the principles which have underlaid our established immigration policy for 48 years are to be preserved and we are to retain a full measure of control over those admitted to our shores that action must be taken forthwith to validate the position as regards certificates of exemption which have been issued to those already here and those who may arrive in future. If action is not taken, our Restricted Immigration Policy (known popularly as the White Australia Policy) will, to all intents and purposes, become impossible of application.

11. The matter which is one of urgency has been discussed with the Attorney-General's Department and that Department is of the opinion that this can be achieved by an amendment of the Immigration Act on the following lines- (i) Section 4 of the Act to be amended to provide that certificates may be validly issued in future without first applying a dictation test; and (ii) the inclusion of a new clause declaring that certificates already issued should be deemed to have been issued under the Act as proposed to be amended.

The views of Counsel in regard to the matter will be obtained before the amending legislation is drafted.

12. Recommendation Recommended that- (i) subject to legal advice, I be authorised to introduce during the forthcoming session of Parliament a Bill to amend the Immigration Act which will validate the position both as regards certificates of exemption already granted and those which may be issued in future; and (ii) in the event of advice being received that legislation under (i) above would be of doubtful validity, particularly as regards its retrospective features, be authorised to introduce, either as an alternative or as complementary, a special Aliens Act covering wartime evacuees or an amendment of the Aliens Deportation Act to enable action to be taken for the deportation of those aliens who entered the Commonwealth during the war period who are not eligible under existing immigration policy to remain here for permanent residence. [2]

1 The certificates exempted the holders from the provisions of the Act, enabling them to enter Australia for a specific period.

2 Cabinet approved the recommendations on 7 April 1949.

[AA:A2700, VOL. 37]