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Published online by Cambridge University Press: 24 January 2025
John Locke defined political power·in part as “a Right of making Laws with Penalties of Death, and consequently all less Penalties ... ”. Capital punishment, and a wide range of barbaric penalties, are no longer with us. Of the forms of punishment that remain, imprisonment is generally recognized as the most serious. Although generally overlooked deportation must rank not far behind. Like imprisonment, deportation can result in considerable hardship and suffering, not only to the person subjected to the measure, but to his or her family and friends. Losing the right to live in what one regards as one’s homeland can be seen as even more serious a deprivation than losing one’s liberty.
Given the significance of the measure, it is necessary to consider not just the specific conditions under which the state is entitled to deport someone, but more fundamentally, who it is entitled to deport. As a constitutional issue, debate in Australia has centred on the question of how the Commonwealth’s immigration power is to be interpreted.
1 Second Treatise of Government para 3. John Locke, Two Treatises of Government. Laslett, Peter (ed) Cambridge University Press, (1960) 308Google Scholar.
2 For a history of punishment in England, see for instance Radzinowicz, L, A History of English Criminal Law, Vol 1 (1948)Google Scholar, Stephen, J F, A History of Criminal Law in England, Vol 1 (1883)Google Scholar.
3 Standard works on sentencing theory and practice seem to ignore deportation, implying that it is a social control measure which does not constitute punishment. See for instance, Sir Cross, Rupert, The English Sentencing System (3rd ed) (1981)Google Scholar, Ashworth, Andrew. Sentencing and Penal Policy (1983)Google Scholar. Hyman Gross and Andrew von Hirsch. eds, Sentencing (1981 ). Note that although the Administrative Appeals Tribunal has held that deportation should not be used as punishment, it has acknowledged that its deterrent effect can certainly be taken into account. See Re Sergi and Minister for Immigration and Ethnic Affairs 2 ALO 224. See also: Re Georges and Minister for Immigration and Ethnic Affairs I ALO 331. Re Frith and Minister for Immigration and Ethnic Affairs I ALO 590, Minister for Immigration and Ethnic Affairs v Daniele 5 ALO 135 (FC).
4 See, for instance, Pochi v MacPhee and Another (1982) ALR 261, per Murphy J. On the comparative seriousness of deportation and imprisonment, see Re Sergie, 2 ALO 224; Re Ceskovic 2 ALO 453, Re Stone and Minister for Immigration and Ethnic Affairs 3 ALN No 81.
5 Commonwealth Constitutions 51(27): “The Parliament shall, subject to this Conslitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... immigration and emigration”. This is certainly not the only power by which deportation might be supported. See text below.
6 “Once an immigrant always an immigrant' . He can enter only in pursuance of [the will of the Australian people] and .,ubject to their constitutional right to qualify or withdraw that permission at any time ... [He cannot] dig himself into this Commonwealth, so as to be irrevocably, so far as the Commonwealth power is concerned, a member of the people of the Commonwealth ... and thereby escape the immigration power for ever.” Ex parte Walsh and Johnson; In re Yates (1925) 37 C'I.R 36, 81-82, cf R v Macfarlane: ex Parle O'Flanagan and O'Kelly (The Irish Envoys Case) (1921) 32 Cl.R 518, 555, per haacs J.
7 ExParle Walsh and Johnson; In re Yates (1925) 37 Cl.R 36, 110. Cf: “. a person who has originally entered Australia as an immigrant may, in course of time and by force of circum,tances, cease to be an immigrant and become, a member of the Australian community. He may, so to speak, grow out of the condition of being an immigrant and thus become exempt from the operation of the immigration power”. Walsh and Johnson'. case, (1925) 37 Cl.R 64, per Knox Cl. For other proponents of both the wide and narrow views, see Lane, , The Australian Federal System 224-230 (2nd ed, 1979)Google Scholar.
8 This in itself is a matter of di,pute. On the one hand, Michael Coper, for instance, in commenting on R v Director-General of Social Welfare for Victoria; ex parte Henry (I 975) 133 CLR 369, the most recent High Court deci,ion on the is-tie, said that although this case offered the Court the opportunity of settling thi, issue, it failed “to resolve it definitely”: “It is obvious ... that the case does little 10 resolve the controversy about the width of the immigration power”. (“The Reach of the Commonwealth\ Immigration Power: .Judicial Exegesis Unbridled”, '.1976) 50 AI..I 351,351 and 355, cf356). On the other hand, Deane .I of the Federal Court held in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186, at 202, ; hat High Court decisions, namely in Koon Wing Lau v Calwell ( 1949) 80 CLR 533 and Henry's:a,e, established that the legislative power with respect to immigration “does not extend to the xclusion or deportation of a person who has become established as a member of the Australian community”. Cf Re Ang (1980) 40 FI.R 410, Re Sergi 2 ALO 224, Re Stone 3 ALN No 81.
9 The other main context in which the issue between the wide and narrow views of the immigration power has arisen is that of attempts to restrict the re-entry of persons who claim to be merely returning home as members of the Australian community. See Potter v Minahan (1908) 7 CLR 277, Donohoe v Wong Sau (1925) 36 CLR 404.
10 Consider lhe judgments of Jacobs and Murphy J .I in Henry'.s case, (1975), 33 CLR 369.
11 See, in parlicular, Potrer v Minahan (1908) 7 CLR 277; The Irish Envoys case (1923) 32 CLR 518, Walsh and Johnson's case (1925) 37 CLR 36; O'Keefe v Calwell, (1949) 80 CLR 533; Koon Wing Lau v Calwell (1949) 80 CLR 533; R v Director-General of Social Welfare (Vic): ex parte Henry (1975) 133 CLR 369. Important Supreme and Federal Court decisions include; R v Governor of the Metropolitan Gaol; ex parte Molinari (I 961) 2 FLR 477; R v Green; ex parte Cheung Cheuk To (1965) 113 CLR 506; Ex parte Black; Re Morony (1965) 83 WN (Pt I) ( NSW) 45; Kuswardana v Minister for Immigration and Ethnic Affairs, (1981) 35 ALR 186.
12 See for example, Moore, G H, “The Immigration Power of the Commonwealth”, (1928) 2 ALJ 5Google Scholar; Malor, Jean, “Deportation under 1he Immigration Power”, (1950) 24 ALJ 3Google Scholar; Ryan, K, “Immigration, Aliens and Na1uraliza1ion in Australian Law”, in D P O'Connell (ed), International Law in Australia (1965) 465Google Scholar; Lane, PH, “Immigration Power”, (1966) 39 ALJ 302Google Scholar; Prof Lane, PH, The Australian Federal System, (1979)Google Scholar; Finlay, H A, “The Immigration Power Applied”, (1966) 40 ALJ 120Google Scholar; Coper, Michael, “The Reach of the Commonwealth's Immigration Power: Judicial Exegesis Unbridled”, (1976) 50 ALI 351Google Scholar; Lumb, R D and Ryan, K W, The Constitution of the Commonwealth of Australia: Annotated (1981)Google Scholar; Wynes, W A. Legislative, Executive and Judicial Powers in Australia (1976)Google Scholar.
13 Lane, PH, “Immigration Power”, (1966) ALJ 302, 306Google Scholar.
14 Koon Wing Lau v Calwell (1949) 80 CLR 533, 577.
15 Lane, supra n 13, 307.
16 See for example, Migration Act 1958 (Cth) s 12.
17 The Department of Immigration and Ethnic Affairs takes five years to be the standard period. Cf Re Williams and Minister for Immigration and Ethnic Affairs 2 ALN No 84, Re Ang and Minister for Immigration and Ethnic Affairs 2 ALO 785, Re Radovanovic and Minister for Immigration and Ethnic Affairs 5 ALN No 69, Re Elkington and Minister for Immigration and Ethnic Affairs 5 ALN No 139. On a period of imprisonment not counting towards absorption, see Re Gillespie and Minister for Immigration and Ethnic Affairs 5 ALN No 348. On the non-criminality requirement generally, see Re lnstandar and Minister for Immigration and Ethnic Affairs 2 ALN No 56, Re Mitos and Minister for Immigration and Ethnic Affairs 5 ALN No 318. See Re Milos also for a statement of considerations relevant to determining whether an immigrant should be deported.
18 See Migration Amendment Act 1983 (Cth).
19 R v Green; ex parte Cheung Cheuk To (1965) 113 CLR 506, R v Forbes; ex parte Kwok Kwan lee (1971) 124 CLR 168.
20 On the importance of family ties, see for example: Re Ang and Minister for Immigration and Ethnic Affairs 2 ALO 785 (1980) 40 FLR410; Re Sevis and Minister for Immigration and Ethnic Affairs 2 ALN No 118; Re Baglar and Minister for Immigration and Ethnic Affairs 3 ALN No 3; Re Tombuloglu and Minister for Immigration and Ethnic Affairs 3 ALN No 11; Re Vincenzo Barbaro and Minister for Immigration and Ethnic Affairs 3 ALN No 81; Re Stone and Minister for Immigration and Ethnic Affairs 3 ALN No 81; Re Purvis and Minister for Immigration and Ethnic Affairs 5 ALN No 68; Re Lee and Minister for Immigration and Ethnic Affairs 6 ALN N214; Prasad v Minister for Immigration and Ethnic Affairs 7 ALN N79. For the relevance of the effect on the family of deportation, see: Re Barbaro and Minister for Immigration and Ethnic Affairs 3 ALO I; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Kannan and Minister for Immigration and Ethnic Affairs I ALO 489; Re Habchi and Minister for Immigration and Ethnic Affairs 2 ALO 623; Re Sevis and Minister for Immigration and Ethnic Affairs 2 ALN No 118; Tabag v Minister for Immigration and Ethnic Affairs 5 ALN No 8; Re Batur and Minister for Immigration and Ethnic Affairs 5 ALN No 172; Re Iii and Minister for Immigration and Ethnic Affairs 5 ALN No 184; Re Mullin and Minister for Immigration and Ethnic Affairs 5 ALN No 357. On the relevan.:e of the question of whether an immigrant's marriage is similar to an Australian one, see Re K B and Minister for Immigration and Ethnic Affairs; Re NB and Minister for Immigration and Ethnic Affairs 4 ALN No 163.
21 On the relevance of employment, see: Re Ang and Minister for Immigration and Ethnic Affairs 2 ALO 785; Re Tabag and Minister for Immigration and Ethnic Affairs 4 ALN No 58; Re Kominkoski and Minister for Immigration and Ethnic Affairs 4 ALN No 199; Re Roberts and Minister for Immigration and Ethnic Affairs 6 ALN NIOO; Re Lee and Minister for Immigration and Ethnic Affairs 6 ALN N2 J4. See also R v Governor of the Metropolitan Gaol; ex parte Molinari (1961) 2 FLR 477. On the relevance of an immigrant making a contribution to his own ethnic community, see Re Fiumani and Minister for Immigration and Ethnic Affairs 4 ALN No 197.
22 On the relevance of acquisition of real estate, see: Re Sergi and Minister for Immigration and Ethnic Affairs 2 ALO 224; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; Re Stone v Minister for Immigration and Ethnic Affairs 3 ALN No 81. See also O'Keefe v Calwell (1949) 77 CLR 261. Note that the possession of substantial reali7- able assets may be a factor favouring deportation. See Re Tombulog/11 and the Minister for Immigration and Ethnic Affairs 3 ALN No 11.
23 See Donohoe v Wong Sau (1925) 36 CLR 404, R v Governor of the Metropolitan Gaol; ex parte Molinari (1961) 2 FLR 477.
24 On the relevance of having applied for Australian citizenship, Re Pochi and Minister Immigration and Ethnic Affairs 2 ALO 33.
25 On the relevance of having voted in federal and state elections, see Re Ang 2 ALD 785, Re Sevis 2 ALN No 21.
26 On the relevance of intention to settle permanently in Australia, see for example, Re Ang 2 ALD 785.
27 Finlay, HA, “The Immigration Power Applied”, (1966) 40 AU 120Google Scholar, 120. See also Lane, P H, The Australian Federal System (1979) 218-220Google Scholar, Ryan, K, “Immigration, Aliens and Naturalization in Australian Law”, in DP O'Connel (ed), International Law in Australia (1965) 465,471Google Scholar, and Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186, 193.
28 On the relevance of being absorbed into one's ethnic community, see Re Sergi, 2 ALD 224. cf Lane, PH, “Immigration Power”, (1966) 39 ALI 302. 307Google Scholar.
29 Rawls, John, A Theory of Justice (1972).Google Scholar
30 See Robert Laney, S, “The Evolution of Australian Passport Law”, (1982) 13 Melb Uni Law Rev 428Google Scholar.
31 Consider the related proposition that a native horn Australian can lose his permanenI residency status, and come within the am hit of the immigration power, in virtue of a long period of absence overseas. See, for instance, Potter v Minahan (1908) 7 CLR 277. This is not necessarily a corollary of the view we are defending. It is quite open for us to accept the proposition, with all due apologies to Isaacs J, that “once an Australian, always an Australian”. (Of course, this proposition need not necessarily apply where Australian citizenship, as opposed to permanent residence status, is concerned. There are a numher of standard wavs in which Australian citizenship can be lost, for instance, hy ohtaining the citizenship of a ioreign country, or serving in its armed forces.)
32 (1971) 124 CLR 168, 173.
33 See A Flick, Geoffrey, “Immigration Appeals”, (1985) 59 ALI 427, 432-3Google Scholar, for a useful summary of changes to the Minister's deportation powers brought about by the 1983 amendments to the Migration Act 1958 (Cth).