Over the last few years, the Law Library of Congress has published a number of reports related to the immigration and citizenship laws of various countries. For example, I’ve written reports about Australia’s points-based immigration system, guest worker programs, investor visas, and pathways to citizenship. However, these projects did not involve delving into the early history of immigration law in Australia, which is actually very interesting. So, when I saw that December 23 is the anniversary of the promulgation of Australia’s first federal immigration law, the Immigration Restriction Act 1901, I thought that this would be a great opportunity to do some research, improve my knowledge, and share it with you all!
The Dictation Test under the Immigration Restriction Act 1901
The Immigration Restriction Act 1901 was one of the first laws passed by the new Commonwealth Parliament following the federation of Australia and was the cornerstone of what was commonly called the “White Australia” policy. Given this name, it is perhaps not hard to guess the general purpose of the law. Here is its long title: “An Act to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants.” Fairly innocuous. But what were the restrictions, and who were these “prohibited immigrants”?
Section 3 of the Act described the persons who would be prohibited from immigrating to Australia (i.e., “prohibited immigrants”). This included “any idiot or insane person”; “any person suffering from an infectious or contagious disease of a loathsome or dangerous character”; prostitutes; persons convicted of non-political offenses within the last three years and sentenced to imprisonment for one year or longer; and those who would likely “become a charge upon the public or upon any public or charitable institution.” Section 3(a), however, was the particular provision that provided the government with the ability to exclude non-European immigrants and other “undesirables.” It defined as a prohibited immigrant “any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer.”
The National Archives of Australia describes the impact of this provision as follows:
The Dictation Test applied to all non-European people entering Australia between 1901 and 1958. The applicant was required to write out 50 words in any European language (after 1905, any prescribed language) dictated by an immigration officer. As the language used was at the discretion of the officer, it was easy to ensure failure if an applicant was thought to be ‘undesirable’, either because of their country of origin, criminal record, medical history or if they were considered morally unfit. A person who failed the test was deemed a prohibited immigrant and deported.
Apparently, “the Dictation Test was given 805 times in 1902-1903 with 46 people passing, and 554 times in 1904-1909 with only six people passing. After 1909, no person passed the Dictation Test.”
Rationale Behind the White Australia Policy and Dictation Test
There had long been strong sentiment in the continent about the need to protect against an influx of Asian laborers (particularly from China) competing for jobs with white Australians (who made up 98% of the population upon federation in 1901). Various related rules (including some other language tests) had been part of the immigration laws of the colonies before they became Australian states. Another law that was part of the White Australia policy, the Pacific Island Labourers Act 1901, sought to address similar concerns with respect to Pacific Islanders. This Act stated that no Pacific Island laborer could enter Australia on or after March 31, 1904, except with a license, and that the Minister for External Affairs could order the deportation of any Pacific Island laborer found in Australia after December 31, 1906. In addition, section 16(1) of the Post and Telegraph Act 1901 required that those contracted to carry mail to and from Australia only employ white labor. Furthermore, the Naturalization Act 1903 excluded all non-European immigrants from becoming naturalized British subjects, and limited their ability to support their spouses and children to come to the country.
In terms of the passage of the Immigration Restriction Act 1901, the Australian Parliamentary Library notes that
Parliamentary debate over the legislation was not about whether it was morally wrong to restrict non-white immigration. Senators and members were almost exclusively concerned with whether the dictation test would achieve the objective of prohibiting non-white immigration to Australia without being seen to contradict the British Government’s stated commitment to non-discrimination on racial grounds.
In fact, the British government had indicated on various occasions that immigration should not be restricted on the basis of race so, as indicated by the above passage, the dictation test was the mechanism chosen to avoid explicitly stating such an exclusionary policy. This fact wasn’t hidden, however. For example, I located an interesting transcript of a campaign speech by Alfred Deakin in 1903 (Deakin went on to become Australia’s second prime minister following the 1903 election). Here is a taste of it:
In this theatre, two and-a half years ago, I laid special stress upon the white Australia policy of the Government. (Applause) After that there was a fierce conflict in Parliament as to whether the means we proposed to exclude the undesirable and colored aliens would suffice. There were those who wished that on the face of the statute the prohibition against them should appear in so many words.
We believed that we studied Australian interests, and also lessened the difficulties of the mother country, if, instead of saying in so many words they should be excluded, we placed in the hands of the Government an educational test which could be applied so as to shut out all undesirables. We have had two years’ experience of the working of our test, and it has worked well. You have seen from time to time how few have managed to survive it. The returns for the last nine months show that 31,000 persons entered Australia from over sea, 28,000 being Europeans. Of the remainder, many of the colored persons came to Australia to engage on pearling vessels. The arrangement we have made is that they land only to sign their articles. A guarantee is taken from those who bring them that, when their time is up, they shall leave the country. By this means they never really enter Australia. They merely fish in our waters or just outside them.
. . .
You probably believe that a white Australia is secure. I hope it is, but it won’t be secure unless a vigilant watch is kept upon proposals to tamper with it. None of a serious character have been put forward by anybody in a responsible position, but there are indications that we may have to defend the principle yet. So far as this Government is concerned it will be ready for the emergency. (Cheers) A white Australia does not by any means mean only the preservation of the complexion of the people of this country. It means the multiplying of their homes, so that we may be able to occupy, use and defend every part of our continent; it means the maintenance of conditions of life fit for white men and white women; it means equal laws and opportunities for all; it means protection against the underpaid labor of other lands; it means social justice so far as we can establish it, including just trading and the payment of fair wages. (Cheers)
Court Cases Related to the Application of the Policy
The Immigration Restriction Act 1901 was frequently amended over the years but remained in force until 1958. As you might imagine, there were various court cases related to the Act over the nearly 60 years that the Act was in effect. The most famous was that involving Egon Kisch, a Jewish journalist and communist, born in Czechoslovakia but of German origin, who in 1934 traveled to Australia to speak against the rise of fascism in Europe. Upon his arrival in Western Australia, the Australian government declared him a prohibited immigrant (apparently based on intelligence received from the British government) and he was refused permission to land. His boat traveled on to Melbourne and, after the prohibition order was found illegal by the High Court of Australia as a result of habeas corpus proceedings, Kisch was finally able to disembark in Sydney. There, however, the government authorities gave him a dictation test. Kisch spoke multiple European languages, so the language selected for him was Scottish Gaelic, with a passage dictated to him by one Constable McKay.
After failing to write out the passage, Kisch was arrested and charged with being an immigrant who had failed the dictation test. He was convicted by the Court of Petty Sessions and sentenced to the maximum penalty of six months hard labor. Kisch appealed to the High Court, which ruled that Scottish Gaelic was not a “European language” within the meaning of section 3(a) of the Immigration Restriction Act 1901, and therefore overturned the conviction. The case received widespread attention, including protests from the Scottish community of Australia about the characterization of Scottish Gaelic. The media commented on the embarrassment caused to the government by the decision. In fact, the Minister again declared Kisch as undesirable, based on fresh information from Britain, and he was again charged and convicted. He again appealed, while continuing to appear at political rallies in Australia. Eventually, an agreement was reached for Kisch to leave the country voluntarily.
A later case also garnered significant attention and controversy. It involved Annie O’Keefe, a refugee from Indonesia who came to Australia during World War II. Annie and her seven children were able to stay temporarily after the war ended, but in 1947 the government started to pressure them to leave, as it did with a number of other non-European refugees. An Australian man (Mr. O’Keefe) with whom the family had stayed married Annie, but the government did not accept that the marriage resulted in naturalization or permanent residence status. A deportation order was issued in January 1949; a decision that was widely criticized in Australia and Southeast Asia. The order was challenged in the High Court of Australia, which held that the immigration authorities did not have the power to deport Annie since she had not taken the dictation test upon her arrival in Australia, and therefore could not be declared a prohibited immigrant who was subject to deportation.
The immigration minister subsequently introduced a bill that became the Wartime Refugees Removal Act 1949, giving the minister broad powers to deport wartime refugees and to charge those who harbored them with offenses. However, a new government was elected in December 1949, and the new immigration minister declared that the remaining refugees could stay in Australia. The international media attention regarding Annie’s case highlighted “the cruel implementation of Australia’s race-based immigration law,” and the White Australia policy started to lose favor among Australians as well as creating issues for Australia’s relationships with other countries. The case therefore “marked the beginning of the end” of the policy.
Abolition of the White Australia Policy
Although the Immigration Restriction Act 1901 was repealed by the Migration Act 1958, which saw the end of the application of the dictation test, this didn’t actually signify the end of the White Australia policy. The Migration Act 1966 was the first immigration law that made all potential migrants “subject to the same rules and restrictions with regard to acquiring visas.” Under this law, “[m]igrants to Australia were to be selected for their skills and ability to contribute to Australian society, rather than their race or national affiliation.” Despite this law, however, 1973 may be seen as the year in which the White Australia policy was finally dismantled: it was “definitively renounced” by the Australian government and the “final vestiges” of the policy were removed. Later, the federal Parliament passed the Racial Discrimination Act 1975, which gives effect to Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and “aims to ensure that everyone is treated equally, regardless of their race, colour, descent, or national or ethnic origin.”
Australia’s immigration law now allows people from any country to apply to migrate to Australia, and “[t]he government views Australia’s cultural diversity as a source of both social and economic wealth.” The 2011 census showed that over a quarter of the country’s population of 21.5 million had been born overseas. About 18% of the population speak a language other than English, with the most common being Mandarin, Italian, Arabic, Cantonese, and Greek.
Library of Congress Resources
Here at the Law Library of Congress we have various books on Australian immigration law as it has developed over the years, including:
- Major Changes to Immigration Law (Leo Cussen Institute, 1993).
- Jane Goddard, The Immigration Kit: A Practical Guide to Australia’s Immigration Law (1995).
- Glenn Nicholls, Deported: A History of Forced Departures from Australia (2007).
- Mary Crock & Laurie Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia (2011).
- John Vrachnas et al., Migration and Refugee Law: Principles and Practice in Australia (2012).
- Laksiri Jayasuriya, Transforming a ‘White Australia’: Issues of Racism and Immigration (2012).
In addition, elsewhere in the Library of Congress collections, there are a number of books that specifically discuss the White Australia policy, including:
- Harold Wilkinson, The World’s Population Problems and a White Australia (1930).
- Walter S. Bromhead, Shall White Australia Fail? (1939).
- Clifton Walker, Immigration and the “White Australia” Policy (1945).
- Immigration: Control or Colour bar? The Background to “White Australia” and a Proposal for Change (Kenneth Rivett ed., 1962).
- A.C. Palfreeman, The Administration of the White Australia Policy (1967).
- Myra Willard, History of the White Australia Policy to 1920 (1968).
- A. Barrie Pittock, Beyond White Australia: A Short History of Race Relations in Australia (1975).
- From India to Australia: A Brief History of Immigration, the Dismantling of the “White Australia” Policy, Problems and Prospects of Assimilation ( S. Chandrasekhar ed., 1992).
- The Abolition of the White Australia Policy: The Immigration Reform Movement Revisited (Nancy Viviani ed., 1992).
- James Jupp, From White Australia to Woomera: The Story of Australian Immigration (2002).
- Keith Windschuttle, The White Australia Policy (2004).
The interesting character and case of Egon Kisch can also be studied through a range of items, including a number by Mr. Kisch himself as well as books written about him in different languages. This includes a book that he wrote about his adventures in Australia in 1934, which has been translated into English.