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IMMIGRATION RESTRICTION ACTS 1901 AND 1905

NOTES FOR THE GUIDANCE OF OFFICERS

[margin header reads 'section 2']

The definition of "officer" has been amended so as to include officers of police. This will enable police constables in remote districts to apply the dictation test, lay informations [sic], &c [ampersand C, an alternative to Et cetera]

[margin header reads 'section 3']

Paragraph (a[italicised]) now requires that in administering the dictation test [start italicised] not less than [end italicised] 50 words shall be read to the immigrant by the officer. Pen or pencil and paper are to be handed to the immigrant, and every care must be taken that at least fifty words are dictated, even though the officer may see after reading one or two words that the immigrant is unable to write any of the words being read to him. An interpreter may be employed where necessary in connexion [sic] with the application of the dictation test, not to dictate the words – that duty is cast upon the officer – but so that the immigrant may fully understand what he is required to do, and what will be the result of his failing.

The necessity of carrying out these instructions cannot be too strongly impressed, as in the past convictions have been quashed in cases in which the officer did not read the full passage required by the law, and make it clear to the immigrant what the law required him to do.

It will be observed that a regulation prescribing the language or languages in which the dictation test may be applied has to be laid before Parliament, and approved, before it becomes operative, but until that is done Section 5 of the Amending Act permits the use of any European language. In ordinary cases the tests furnished from this office are to be used.

It is intended that the dictation test shall be an absolute bar to admission. Officers will therefore take means to ascertain whether, in their opinion, the immigrant can write English. If it is thought that he can, the test must be dictated in some other European language, one with which the immigrant is not acquainted. It is not sufficient to read the test in English and require it to be written in another language. A passage of at least 50 words from the language selected must be chosen, and read by the officer to the immigrant.

Where the inquiries by the officer show that coloured persons who arrive in the Commonwealth are merely on a visit, the Collector should use his discretion as to the issue of Certificates of Exemption for a period not exceeding four months. No promises of renewal should be made, but applicants may be told that, if they desire to remain for longer periods, representations to that effect should be made to this Department. It is most desirable that, whenever practicable, security for the departure of such persons should be furnished either in cash or on Form No. [number] 27.

The dictation test is not to be applied to Japanese, Indians, and Hong Kong Chinese, who are the holders of passports from their Governments. The arrival of such persons is to be specially reported, but care is to be taken that they are subject to no more inconvenience than is necessitated by an examination of their papers. They should be informed that if they wish to remain in Australia longer than twelve months they should intimate that fact before they expiry of the twelve months to the Collector of Customs in the State in which they happen to be, with a view to procuring an Exemption Certificate. They should be asked for an address in Australia where any communications can be forwarded to them.

On the arrival at the first port of call in the Commonwealth of vessels from abroad and examination of all passengers who may be on board should be made by the officers. All coloured persons who are not exempted by the Act, or referred to in the preceding paragraph, and who are unprovided with documents authorizing them to land, must be asked to pass the dictation test, and in the event of their failing, a notice should be served on the Master on Form No. [number] 9. Particulars respecting persons rejected should be indorsed [sic] on the ship's papers for the information of Customs officers at subsequent ports of call.

On the arrival at any port in the Commonwealth of vessels from abroad the officer shall obtain from the Master a list of passengers (form No. [number] 12) for such port. New forms are being sent; the attention of Masters should be invited to the note at foot.

Paragraph (b [italicised]). - officers will use their discretion as to applying this law. [start underlined in black pen] Persons who are suffering from any serious physical incapacity, and who are without means, may be regarded as coming within its forms [end underlined]; but Europeans of sound bodily health, notwithstanding that they have no money, should not be so regarded, and are to be admitted without restriction. [start double underlined in black pen] It is necessary for an officer to form his opinion before the immigrant leaves the ship. [end underlined].

Paragraph (c [italicised]). - Idiots or insane persons can only be permitted to land on Certificates of Exemption on a bond (Form No. [number] 29) being given for £500.

In cases in which the State authorities obtain a bond for the maintenance of such persons during their stay in the State, a bond on the Commonwealth form need not be taken, but should be sure that security has been given before permitting the entry of such persons.

Paragraph (e [italicised]). - The principal object of this paragraph is to meet eases of escapees from New Caledonia who may reach the Commonwealth.

Paragraph (g [italicised]). - Eliminated. Contract Immigrants Act has taken its place. (See [italicised] separate instructions.)

Paragraph (h [italicised]). - The object of a Certificate of Exemption is to enable persons who would otherwise be regarded as prohibited immigrants to stay in the Commonwealth for limited periods. Such certificates can only be issued by officers specially appointed.

C.396

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A report of any such certificates, and of the circumstances connected with each case, should be forwarded to the Department as soon as possible after the issue of the document. A record of call certificates issued should be kept by the Collectors of Customs, who should endeavour to keep in touch with the persons to whom such certificates are issued, in order that their departure from the Commonwealth may be noted. In cases where the holders of these documents proceed to another State after staying some time in the one in which the certificate is issued, a report of the matter should be forwarded to the Collector of Customs in the State about to be visited, with a request that a note of departure may be made, and advice forwarded on leaving such State. Similar action may be taken by that State in the event of the Exemption Certificate holders proceeding to other parts of the Commonwealth.

Paragraph (k [italicised]). - On the arrival of any vessel in the Commonwealth from abroad with coloured sailors on board, a list of such coloured crew must be furnished to the officer on Form No. [number] 23. The men should then be mustered by the officer, who should see that they agree with the list supplied to him (and with the Articles). On the departure of the vessel the crew should again be mustered, and f the vessel is sailing for parts beyond the Commonwealth the crew list should be retained by the Customs Officer after an indorsement [sic] has been made as to whether all the coloured men were on board at the time of departure. If any of the men shown on the list are absent the Master should be informed that, in the opinion of the officer, such absentees would have been prohibited immigrants but for the exception contained in paragraph (k [italicised]), and that they are therefore deemed to be prohibited immigrants, ad to have entered the Commonwealth contrary to the Act. Form No. [number] 10 should then be served on the Master. Steps should then be taken to obtain security for penalties for a breach of the Act.

In the case of the vessels arriving from abroad with white crews, inquiries should be made by the officer before the departure of any such vessels from any port in the Commonwealth, with a view to learning whether the same crew that arrived with the ship is going away with her. If not, it should be ascertained what has become of the missing members, and whether any of them would come within paragraphs (b [italicised]), (c [italicised]), or (d [italicised]). If so, a master should be held, and a notice declaring them prohibited immigrants served on the Master. Steps should then be taken to obtain security for penalties. Except in the cases mentioned white crews need not be mustered.

Where vessels are proceeding from port to port in the Commonwealth with coloured crews, the original crew list should be sent on with the ship's papers for the information of the officers at subsequent ports, where musters should be held and indorsements [sic] made as to the number of men on arrival and departure. In the case of vessels, such as mail liners, which call at the same ports on the outward as on the inward voyage, one crew list will do for the whole trip. The list should be retained at the last port of call. Where arrangements have been made to substitute other proceedings for muster they hold good until further notice.

Paragraph (m [italicised]). - Eliminated. In future where coloured persons established in the Commonwealth return with papers entitling them to admission, bringing with them wives or families, authority for whose introduction has not been obtained, such persons are not permitted to land without express instructions from this Department. The provisions of Section 6 are not to be made available in such cases.

Paragraph (n [italicised]) has been eliminated, and has been replaced by a permit system, consequently no persons will in future be entitled to claim admission without being in possession of the necessary authority. Birth certificates and naturalization [sic] papers are no longer to be considered as entitling the holders to land.

All domicile certificates issued up to the time the amending Act is proclaimed to come into operation are to be recognised, and the holders are not to be asked to pass the dictation test, provided the officer is satisfied as to identity.

[margin header reads 'section 4']

This section makes provision for dealing with persons granted Certificates of Exemption who fail to leave the Commonwealth at the expiration of the exemption. On a Ministerial Order being furnished, such persons can be deported without any proceedings being taken in the Courts. Such an Order will cover authority to detain the person being dealt with pending an opportunity for deportation.

[margin header reads 'section 4.A.']

Should any action be taken under this section, full instructions will be furnished subsequently.

[margin header reads 'section 4.B. (1)']

The new system provides for the issue of a document entitling the holder to re-admission to the Commonwealth within a specified period, without being required to pass the dictation test.

Such documents are issuable on payment of the prescribed fee, to persons of good character who have resided in Australia for a period or periods aggregating five years. New forms of application for these certificates are being forwarded.

Children of the age of three years and upwards who are leaving the Commonwealth should obtain certificates. Particulars of children under three should be indorsed [sic] on their parents' certificates for identification purposes on their return.

Where applicants are unknown to the officers, reference should be made to the police for a report as to character.

The certificates may be issued by the Collectors of Customs without reference to this office, but a return should be forwarded to this Department at the end of each month, setting out on a form to be supplied (No. [number] 3), particulars of certificates issued, together with a statement of fees received.

The precautions to be taken in regard to the issue of certificates will be similar to those in connexion [sic] with those for Certificates of Domicile. On the face of the document a description of the holder will be taken, and photographs (full face and profile, attached), which must bear the officer's initials and a Customs stamp partly impressed across the photograph, and partly on the certificate.

An impression of the left hand will require to be placed on the back of the document, as is done on the Certificates of Domicile. The certificates will be numbered from one consecutively, and should show the year in which they are issued, such as 1/05 [January 1905], 2/06 [February 1906]. They will be made out in duplicate being retained at the port of issue pending the return of the person to whom the certificate has been issued.

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A place will be provided on the certificate for insertion by the Customs officer of the duration of the certificate, which should not exceed, in ordinary circumstances, three years. Applications for extension of the period originally named may be granted on good cause being shown. On return the certificate is to be delivered up to the officer. After comparison with the duplicate it may be destroyed.

Where the holder of a certificate exempting from the dictation test lands in a State other than that in which the documentation was issued, it should be forwarded as soon as possible to the Customs authorities in the issuing state for their information ad necessary action.

[margin header reads 'section 4.B. (2)']

Particular attention is invited to Clause 2 of Section 4B, which gives authority for the withholding of a permit in certain cases. This power should be employed where applications are of notoriously bad character. The keepers of gambling places, opium dens, and houses of ill repute, &e]c [ampersand C, an alternative to Et cetera], should be refused permits. Any cases in which the issue of certificates is withheld should be immediately reported to this Department, together with the reasons.

[margin header reads 'section 4.B. (3)']

Any cases coming within the terms of this paragraph should be reported to this Department, in order that action may be taken by the Minister.

[margin header reads 'section 5 [?(3)]']

The principle alteration herein made is to cast on a person who has failed to pass the test, and is stated to have landed in the Commonwealth within the preceding twelve months, the onus of proving that the date of his landing was more remote.

[margin header reads 'section 6']

The provisions of this section are only to be applied to cases in which the circumstances are of an unusual character. When the Collector exercises his discretion and permits the section to be availed of, an immediate report should be furnished to the Department.

[margin header reads 'section 7']

Before proceedings can be instituted against any person under this section it is necessary to have proof that he has failed to pass the dictation test for that he comes within one of the other paragraphs (b [italicised] to f [italicised]), Section 3 of the Act. Provision is made in section 14 (a [italicised]) for the arrest without warrant of any person reasonably supposed to be a prohibited immigrant, so that in cases where persons tested at one port land at some other port, they can be summarily arrested, and the dictation test can again be applied on their arrest, when proceedings can be instituted.

Officers should be in a position to swear in the Courts as to the proper procedure having been taken by them in call cases under the Act.

In cases in which there is no officer competent to conduct legal proceedings reference should be made to the Crown Solicitor in the capital cities, or in outside places to come competent local practitioner.

As soon as possible after a prohibited immigrant has been convicted, a report of the matter should be submitted so that a Ministerial Order for the deportation may be procured to enable the offender to be sent away at the first opportunity.

[margin header reads 'section 8']

This section provides for the deportation on a Ministerial Order of persons not British subjects, either natural born or naturalized [sic], convicted of any crime of violence against the persons, who fail to pass the dictation test.

In order that action may be taken if thought desirable, under this section particulars respecting any cases coming within its scope should be obtained from the police authorities shortly before the release of any such persons. To enable the Minister to judge the merits of each case it is advisable that the fullest particulars should be furnished to the Department. In addition to the ordinary information respecting the crime for which the sentence is being served, the police authorities should be requested to supply particulars under the following heads, viz :-

(a [italicised]) Length of residence in the Commonwealth.

(b [italicised]) Whether the offence was the first or not.

(c [italicised]) Whether the man is coloured.

(d [italicised]) whether he is married; and if so, whether his wife and family are in Australia.

(e [italicised]) Police report on the man's character generally.

In cases where this section is put into operation no proceedings in the Court are necessary, a Ministerial Order being all that is required to effect [sic] the deportation of the person concerned, after he has failed to pass the dictation test. The Ministerial Order will be sufficient authority for the detention of the person, pending an opportunity to send him away from the Commonwealth.

[margin header reads 'section 9']

Under this section the agents of vessels are now made liable equally with the masters, owners, and characters of any vessel from which a prohibited immigrant enters the Commonwealth. It is desirable, however, that, as far as practicable, proceedings shall continue to be taken against the Master as in the past, so that the practice of taking security in such cases in the form of an order by the Master on his agents should still be followed.

It will be observed that the penalty for the introduction of a prohibited immigrant has been fixed [underlined] at £100. Agents may be given to understand that in cases where prohibited immigrants are recovered after the penalty has been paid, and the arrest of the offender can be traced to their efforts, an application for a refund of the fine or a part thereof will receive consideration.

In prosecutions under this section care should be taken that notice is served on the Master requiring him to produce the vessel's articles in Court.

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[margin header reads 'section 10']

Although this section gives authority for the detention of vessels from which a prohibited immigrant has entered the Commonwealth, it is not considered desirable to have frequent recourse to its powers. Should any special cases occur, where, in the opinion of the Collector, it is necessary to use this authority, the facts should be at once reported, to enable the Minister if he approves to "specially empower" the Collector to detain the vessel.

[margin header reads 'section 16']

Copies of amended regulations are being forwarded.

[margin header reads 'section 17']

Returns giving the particulars required for compilation of the annual return to be laid before Parliament, in accordance with this section, shall be forwarded to this Department at the end of each month. In the return of persons admitted without being asked to pass the dictation test, a note should be made in the "Remarks" column against all coloured persons setting out the authority for their admission/ where special authority is granted by this Department for the admission of any such persons, the correspondence number should be quoted when forwarded the returns.

In the case of persons refused admission, it should be stated under what clause action has been taken. Should any persons succeed in passing the dictation test, particulars respecting such individuals should be inserted in the "Remarks" column, and the tests to which they were subjected attached to the returns.

For the purposes of the returns to be furnished in accordance with this section, no notice need be taken of persons who arrive from abroad en route [italicised] to other parts of the world, and only land for transhipment, such as Chinese and Hindoos [sic] reaching Sydney from Asia en route [italicised] to Fiji and other parts of the Pacific. In such case where time elapses between their arrival and subsequent departure from the Commonwealth, security must be furnished before they can be permitted to land.

White sailors who are discharged from oversea ships in the various ports of the Commonwealth should be included in the returns on Form 5. in order that this may be done, particulars should be obtained at the end of each month from the Shipping Masters in the various ports.

GENERAL

[margin header reads 'Boats']

Where bonds are given as security in connexion [sic] with cases arising out of the Act, every car must be taken to see that the seals are properly affixed at the time  the matter is being completed, as the Law authorities advise that in the absence of the seals the bonds are worthless.

[margin header reads 'Stowaways']

Recently many cases have been reported of stowaways – coloured men – having obtained or attempted to obtain entrance to the Commonwealth. The practice for such persons to secrete themselves in boats, coal-bunkers, water-tanks, fore-peaks, under and between bunks in the crew's quarters, &c., &c. [ampersand C, an alternative to Et cetera], during such times as the vessel may be in port. Officers should endeavour to familiarize [sic] themselves with the most likely hiding-places and vigilantly examine them.

Occasionally it may be deemed desirable by the Collector to engage a number of extra hands for he purpose of making a simultaneous search in various parts of the ship. Reasonable extra expenditure for such purpose will be approved by the Department.

Should any coloured stowaways be discovered they should be tested, and the Master served with Form No. [number] 9. informing him of the penalties to which he is liable should the men leave the vessel. He may also be advised of his powers under Section 13 (b [italicised]). In such cases strict enquiry should be made to ascertain the persons who have assisted the stowaways by getting them hidden away, supplying them with food, &c [ampersand C, an alternative to Et cetera], in order that action may be taken under Section 12.

[margin header reads 'Discharge of Coloured Seamen']

The discharge of coloured seamen whose arrangements have terminated, or who for other reasons are desirous of leaving their vessels, may be permitted provided security for their early departure from the Commonwealth is given. After discharge the dictation test should be applied, so as to bring the persons within the operation of the Act. When they leave, particulars should be indorsed [sic] on the ship's papers for the information of officers at subsequent ports of call. Advice that such persons were on board on departure should be sent from the last port of call to the port of embarkation, on receipt of which information the security that has been lodged may be cancelled.

[margin header reads 'Form [?30?], for re-admission of Coloured sailors']

There are in various ports of the Commonwealth coloured men who are sailors by occupation. It has been represented that these men find a difficulty in obtaining berths owing to the fear of ship-masters that, when the voyage for which the men have engaged has expired, their discharge in an Australian port will not be allowed. It is necessary that such men should obtain a certificate under Section 4 (b [italicised]) and regulations, but as it is desirable that they should be afforded an opportunity of leaving the Commonwealth, if only for a time, the following arrangements have been made :-

If a coloured person resident in any port desires to ship on board a foreign-going vessel, a copy of Form No. [number] 30 may be filled up and given to the Master of the ship. On the return of the vessel to the same or any other port in Australia, no objection is to be taken to the discharge of the seamen in respect of whom the form has been issued.

Department of External Affairs,

January 1906