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Historical documents

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

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

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

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

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]
Last Updated: 11 September 2013
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