The immigration and emigration power used to be the basis of the Migration Act.
However, this power is no longer relied on as the basis for any significant legislation
Constitution s (xix)
Even before Australia developed the notion of a separate Australian citizenship, the High Court
interpreted “immigrant” so as not to apply to “a member of the separate Australian community”.
Therefore the power:
ocould not be used to stop an Australian-born
person from entering Australia;
Potter v Minahan
this was so even after 27 years of absence, at least if he had not
acquired a domicile of choice in another country
ocould be used to keep out undesirable British subjects from other parts of the
Empire or from Great Britain itself.
R v Macfarlane; Ex parte O’Flanagan and O’Kelly
oHowever, once immigrants had been ‘absorbed’ into the
community, they could not be deported
Re Yates; Ex parte Walsh and Johnson
FACTS: Walsh and Johnson, persons of British nationality who had entered Australia from
abroad, challenged the validity of their detention in custody pending deportation. They were
detained under a provision if the Immigration Act 1901 (Cth) which provided that where the
Governor-General had made a proclamation that serious industrial disturbance threatened, the
Minister for Immigration could call upon persons who in his opinion were fomenting such trouble,
not being persons who were Australia-born, to show cause why they should not be deported.
Walsh was born outside Australia but had migrated here in 1893. Johnson was born outside
Australia but had migrated here in 1910
HELD: the detention of both parties was invalid.
For Walsh, the central fact was that he had been admitted to Australia prior to
federation and therefore was beyond the reach of the immigration power.
issue: whether the power could be exercised over persons who had be absorbed into
Held: the majority concluded that the provisions impugned were not laws with
respect to immigration but applied to immigrants who had completed the process
of immigration and therefore were beyond reach of immigration power.
The absorption test: anyone who has admitted to membership in Australia cannot be
refused access unless they have abandoned their membership.