Znaty v Minister Of State For Immigration [1972] HCA 14

High Court of Australia Barwick C.J. McTiernan, Windeyer, Owen and Walsh JJ. Znaty v Minister Of State For Immigration [1972] HCA 14

ORDER Application dismissed.

The following written judgments were delivered:—

1972, Feb. 25 Barwick C.J.

I have read the reasons given by my brother Windeyer for thinking that the Commonwealth lacks power under s. 5 (xxvii.) of the Constitution when deporting a person to insist that the carrier who carries that person should carry him or her to some specific place. I agree with my brother's conclusion. I am unable to see any need in order to give full amplitude to the constitutional power to include in it the power to determine the place to which the deportee must go. However, as others have been of a different opinion and the Court has made an order conformable thereto it seems unnecessary for me to develop the matter further.

McTiernan J.

I agree in the reasons for judgment of Walsh J. As I stated upon the conclusion of the argument I am of opinion that the application was rightly dismissed. I think there is no question that s. 18 and s. 20 of the Migration Act 1958-1966 Cth are valid laws and that the order for deportation here in question is wholly within the power conferred upon the Minister by those sections and enforceable.

Windeyer J.

When the Court, in December 1970, dismissed the application in this case it was said that it did so by a majority and that the reasons for the decision would be given later. I was one of the minority. There would now be no purpose in my elaborating the reasons why I considered, and still consider, that the injunction that was sought ought to have been granted. It suffices to say that the evidence disclosed—sufficiently at all events to found an interlocutory injunction—that the Minister chose the aircraft by which the plaintiff was to be deported and made the arrangements for his travel and with a view to ensuring that he was taken to Morocco. Why the Minister should have insisted on his being taken there, when he did not wish to go there and was willing to go elsewhere, does not appear. The reasonableness or fairness of the Minister's decision did not arise for consideration if it were lawful. But I thought that it was not lawful. We were not concerned with the meaning in the abstract of the words "deport" or "deportation"; and cases depending on those words in other contexts did not seem to me to be directly relevant. Nor were we concerned with powers arising under an extradition treaty enabling a person to be taken to a particular country. Here was a man ready, willing and, he said, able to leave Australia. The provisions of the Act for the deportation of prohibited immigrants are as I understand it an exercise of the Commonwealth power to make laws with respect to immigration and emigration (the Constitution, s. 51 (xxvii.)). They are ancillary thereto and limited thereby; and are to be read accordingly. No question arose in this case in relation to the power with respect to the influx of criminals (s. 51 (xxviii.)) or external affairs (s. 51 (xxix.)). The powers of the Commonwealth authorities under the Migration Act are to enable the Commonwealth government to determine whether a person coming from abroad should be allowed to enter Australia and to prescribe conditions for his entry and of his stay in Australia. The power to deport prohibited immigrants is a power to rid Australia of persons not lawfully entitled to remain here. It is not I think a power enabling the Government to insist that they be taken to a particular place.