Koon Wing Lau v Calwell [1949] HCA 65

Koon Wing Lau v Calwell [1949] HCA 65

Both the War-time Refugees Removal Act 1949 and Immigration Act 1949 are valid exercises of Commonwealth legislative power under the immigration, aliens, and defence powers. Parliament's power is not exhausted by an immigrant establishing a permanent home; it may apply conditions to entry and remaining, including deportation. The Acts are not invalid on constitutional grounds, and custody pending deportation is lawful if for the purpose of actual deportation within a reasonable time.

Jurisdiction
Australia
Procedural Posture
Actions and Applications for Writs of Habeas Corpus / Interlocutory Stage; Questions of Law Referred to Full Court Under S. 18 of Judiciary Act
Outcome
Acts declared valid; cases remitted to a single judge for factual determination; questions referred answered; costs to be costs in causes.
Legal Topics
['validity of Commonwealth Legislation' 'immigration Power' 'defence Power' 'aliens Power' 'deportation' 'retrospective Legislation']
['constitutional Law' 'immigration Law'] ['validity of Commonwealth Legislation' 'immigration Power' 'defence Power' 'aliens Power' 'deportation' 'retrospective Legislation']

Case Brief

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Procedural Posture

Actions and Applications for Writs of Habeas Corpus / Interlocutory Stage; Questions of Law Referred to Full Court Under S. 18 of Judiciary Act

Legal Issues

  1. 1 ['Whether the War-time Refugees Removal Act 1949 and the Immigration Act 1949 are valid under the Commonwealth Constitution' "Whether Parliament's immigration power is limited once a person has established a permanent home in Australia" "Interpretation of 'issue' and 'purported issue' of certificate of exemption under Immigration Act 1949" 'Whether prolonged custody pending deportation is constitutionally valid']

Ratio Decidendi

Both the War-time Refugees Removal Act 1949 and Immigration Act 1949 are valid exercises of Commonwealth legislative power under the immigration, aliens, and defence powers. Parliament's power is not exhausted by an immigrant establishing a permanent home; it may apply conditions to entry and remaining, including deportation. The Acts are not invalid on constitutional grounds, and custody pending deportation is lawful if for the purpose of actual deportation within a reasonable time.

Court Disposition

Acts declared valid; cases remitted to a single judge for factual determination; questions referred answered; costs to be costs in causes.

Orders

  • ['Declaration that War-time Refugees Removal Act 1949 and Immigration Act 1949 are valid.' 'Costs of proceedings before Full Court to be costs in respective causes.' 'Cases remitted to be dealt with by a single Justice consistently with declaration.' 'Questions referred answered as set out in the judgment.']