Case: Ex parte Walsh and Johnson; In re Yates [1925] HCA 53 ; (1925) 37 CLR 36
Outcome: considered
The notion that a person might become one of the people of Australia by absorption into the Australian community seems first to have been discussed by the High Court in Ex parte Walsh and Johnson; In re Yates [1925] HCA 53 ; (1925) 37 CLR 36. In that case at p 64 Knox CJ took the view that it followed from the opinions expressed in Minehan that: ... a person who has originally entered Australia as an immigrant may in course of time and by force of circumstances 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. 28 Whether the view expressed by Knox CJ in Ex parte Walsh and Johnson remained the position in 1975 in respect of a person who had entered Australia after the Migration Act came into operation seems to me to be open to doubt. In The Queen v Forbes; ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168 at 172-173 Barwick CJ, with whom all other members of the High Court agreed, stated: It was said in O'Keefe v Calwell that immigration as a concept involves two elements (a) entry into the country and (b) absorption into the community of the country. Parliament clearly has authority to legislate with respect to both elements and laws which control those elements can be made under s 51(xxvii). It can say who may enter and it can say on what terms if at all a person so entering may become a member of the Australian community. In the Act Parliament has exercised these powers. It is there provided quite unequivocally that a person who is not already a member of the Australian community may not enter Australia except in pursuance of an entry permit. See definition of "immigrant" s 5(1) ss 5(2), 6(2). If he has no permit and enters Australia he is a prohibited immigrant. It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country. (citation omitted) 36 As noted above, the Full Court in Moore referred to a "considerable period of time" being invariably required for absorption. Their Honours' view finds support in Ex parte Walsh and Johnson where Knox CJ spoke of a person growing out of the condition of being an immigrant "in course of time and by force of circumstances" (see [27] above). It seems to me that the period of approximately five months between the arrival of the infant Mr Charlie on Darnley Island and Independence Day was not a "considerable period of time" within the meaning of that expression as used in Moore. Their Honours, in my view, plainly envisaged a period of some years as being required for absorption. The period of approximately five months was, I conclude, plainly insufficient for Mr Charlie, together with his family unit, to have become part of the Australian community by absorption. This is so, in my view, notwithstanding that his parents: (a) intended, as I find, in April 1975 to settle permanently on Darnley Island; (b) did not, as I infer, absent themselves from Darnley Island frequently or for long periods of time; (c) had close family connections with Darnley Island and were connected to the island by Mr Charlie Snr's employment; (d) occupied a home of their own on Darnley Island; and (e) participated, as I infer, in Darnley Island community activities.