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Ex parte Walsh and Johnson; In re Yates

Ex parte Walsh and Johnson; In re Yates

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Case Copied 18 December 1925 46 min read

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37 CLR 36

Ex PARTE WALSH IN RE YATES. Ex PARTE JOHNSON; IN RE YATES.

ON REMOVAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Constitutional Law-Powers of Commonwealth Parliament-Extent of power-

Immigration and emigration--Trade and commerce-Public departments and public authority-Incidental powers-Deportation by executive act-Person whose SYDNEY,

home is in Commonwealth-Immigration before Federation- - Retrospective Nov. 30;

legislation - Showing cause against deportation-Notice to person affected- Dec. 1-4, 7-9,

Sufficiency of notice-The Constitution (63 &64 Vict. c. 12), secs. 51, 52, 61- Immigration Act 1901-1925 (No. 17 of 1901-No. 7 of 1925), sec. 8AA. High Court-Jurisdiction-Removal of cause from State Court to High Court-

Validity of legislation-Defining and investing jurisdiction-Whether rule nisi for habeas corpus may be removed-Meaning of "cause"-The Constitution (63 &64 Vict. c. 12), secs. 71, 75-77-Judiciary Act 1903-1920 (No. 6 of 1903 --No. 38 of 1920), secs. 39, 40.

Held, by Knox C.J., Isaacs, Higgins, Rich and Starke JJ., that sec. 40 of the Judiciary Act 1903-1920 is a valid exercise of the powers conferred upon the Commonwealth Parliament by secs. 76 and 77 of the Constitution; and a rule nisi for a habeas corpus to determine the right to personal liberty is a " cause 11 within the meaning of sec. 40 and may be removed under its provisions.

Held, by Knox C.J., Isaacs, Rich and Starke JJ. (Higgins J. dissenting), that sec. 8AA of the Immigration Act 1901-1925 is a valid exercise of the power conferred upon the Commonwealth Parliament by sec. 51 (XXVII.) of the Constitution to legislate with respect to immigration.

Per Knox C.J., Higgins and Starke JJ. (Isaacs and Rich JJ. dissenting): Sec. 8AA cannot be supported as an exercise of any power of the Commonwealth Parliament other than that of immigration.

Per Knox C.J., Higgins and Starke JJ.: The immigration power does not authorize the Parliament to legislate with respect to persons who, having

37 CLR 37

immigrated to Australia, have made their permanent homes there and SO have become members of the Australian community and, per Knox C.J. and Starke J. (Higgins J. dissenting), sec. 8AA upon its proper construction does not apply to such persons.

Per Isaacs and Rich JJ. :-(1) The immigration power authorizes the Common- wealth Parliament to legislate with respect only to persons who have immigrated to Australia since the establishment of the Commonwealth, and sec. 8AA upon its proper construction applies to all such persons, whether they have or have not made their permanent homes in Australia, and to no others. (2) Sec. 8AA is a valid exercise of the powers conferred upon the Commonwealth Parliament by sec. 51 (I.), (XXVIL) and (XXXIX.) and sec. 52 (II.) of the Constitution, but on its proper construction does not go beyond the limits of the immigration power. (3) In order that a person may lawfully be required to show cause why he should not be deported under sec. 8AA, it is a necessary condition that he should be informed with reasonable definiteness of what particular acts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1925] HCA 53
Decision Date: 18 December 1925

CaseChat Overview and Summary

The case involved applications for writs of habeas corpus brought by Thomas Walsh and Jacob Johnson against Robert Walter Yates, a Commonwealth peace officer. Walsh and Johnson were detained pending deportation orders made under section 8AA of the *Immigration Act 1901-1925*. Both applicants were born outside Australia, had immigrated to Australia and made their homes there prior to the proceedings. The applications were initially made to the Supreme Court of New South Wales but were removed to the High Court of Australia.

The High Court was required to determine two primary legal issues. Firstly, whether section 40 of the *Judiciary Act 1903-1920*, which provided for the removal of causes from State courts to the High Court, was a valid exercise of Commonwealth legislative power and if it applied to applications for habeas corpus. Secondly, the Court had to consider the validity of section 8AA of the *Immigration Act 1901-1925*, specifically whether it constituted a valid exercise of the Commonwealth Parliament's power to legislate with respect to immigration, and if so, whether it applied to persons who had become permanent residents of Australia.

A majority of the High Court (Knox C.J., Isaacs, Rich, and Starke JJ.) held that section 40 of the *Judiciary Act* was valid, finding it to be a constitutional exercise of Parliament's power to define and invest jurisdiction in federal courts, and that a rule nisi for habeas corpus constituted a "cause" that could be removed. On the validity of section 8AA of the *Immigration Act*, a majority (Knox C.J., Isaacs, Rich, and Starke JJ.) found it to be a valid exercise of the immigration power. However, there was a divergence of opinion regarding its scope. Knox C.J., Higgins, and Starke JJ. held that the immigration power did not extend to persons who had made their permanent homes in Australia and become part of the Australian community, and that section 8AA did not apply to such persons. Isaacs and Rich JJ. held that the power extended to persons who had immigrated since the establishment of the Commonwealth, regardless of whether they had made their permanent homes there, and that section 8AA applied to all such persons. Higgins J. dissented on the validity of section 8AA, finding it was not a law with respect to immigration as it applied to members of the Australian community and could not be supported by other legislative powers.

Ultimately, the Court held, by a majority, that the detention of both Walsh and Johnson was unlawful. This outcome was based on the interpretation of section 8AA and its application to individuals who had established permanent homes in Australia.

Orders