It usually takes clear statutory words before a court will interpret legislation as taking away fundamental common law rights. This is known as the principle of legality which in Australia can be traced back to Potter v Minahan (1908) 7 CLR 277. Briefly:
“When James Minahan tried to enter Australia in 1908, a Customs official administered to him a dictation test on the basis that he was an ‘immigrant’ within the meaning of the Immigration Restriction Act 1901 (Cth). Mr Minahan failed the test and was charged with being a prohibited immigrant found within the Commonwealth. This would have been unremarkable for the time, except that Mr Minahan had been born in Victoria. His father took him as a child to China, where he lived for 26 years until his attempted return.” [from an article by Brendan Lim published in (2013) 37 MULR 372].
It was unsuccessfully argued that ‘“immigrat- ing” into Australia must be taken to mean “entering” Australia i.e.that every person entering Australia is prima facie an immigrant. The decision in Minahan’s favour ultimately rested on the finding that the legislature did not intend to deprive any Australian-born member of the Australian community of the right after absence to re-enter Australia.
There’s something about this case and present immigration policy that makes me uneasy….
Creative commons acknowledgment for the photograph.
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