Ex parte Walsh and Johnson; In re Yates

[1925] HCA 53

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 the Minister is satisfied.

Per Higgins J.: -Sec. 8AA is not a law with respect to immigration, for it is intended to apply to members of the Australian community. Parliament having clearly stated the power which it intended to exercise by the Act -the power as to immigration-it cannot be treated as having exercised some other power. It is a fundamental mistake to treat the power to make laws ' with respect to immigration as if it were a power to make laws with respect to immigrants. Sec. 8AA, on its proper construction, was meant to apply to persons who had been immigrants, members of the Australian community and it is invalid to that end. A Federal Act may be retrospective but an Act under the Constitution as to immigration cannot deal with immigration which took place before the Constitution. Sec. 8AA is lacking in the very elements of a law as to trade and commerce with other countries.

Proceedings were instituted under sec. 8AA against A and B; notices summoning them to appear before a Board, following the words of sub-sec. 2, were served upon them. Both A and B were born outside Australia. had immigrated to Australia in 1893 and B in 1910, and each of them had made his home there. Orders having been made for their deportation, they were detained in custody pending their deportation. On orders nisi for habeas

Held, by the whole Court, that the detention of each of them was unlawful.

RULES NISI for writs of habeas corpus.

On 24th August 1925 a proclamation under sec. 8AA of the Immigration Act 1901-1925 was made by the Governor-General. On 1st September 1925 notices signed by the Minister for Home and Territories were served on Thomas Walsh and Jacob Johason which, SO far as is material, were as follows "Take notice that

37 CLR 38

whereas I am satisfied that you were not born in Australia and that

you have been concerned in Australia in acts directed towards hindering or obstructing, to the prejudice of the public, the transport of goods or the conveyance of passengers in relation to trade or commerce with other countries or among the States, or the provision of services by any department or public authority of the Common- wealth, and that your presence in Australia will be injurious to the peace, order or good government of the Commonwealth in relation to matters with respect to which the Parliament has power to make laws, you are hereby summoned to appear Board constituted in pursuance of sec. 8AA of the above-named Act (the Immigration Act 1901-1925) "

to show cause why you should not be deported from the Commonwealth " &. Walsh and Johnson both appeared before the Board. On 18th November 1925 the Minister for Home and Territories made orders for the deportation of Walsh and Johnson, and in each order it was recited that the Board had recommended that Walsh and Johnson respectively should be deported. Pursuant to these orders and to directions given by the Prime Minister, Walsh and Johnson were taken into custody by Robert Walter Yates, a peace officer of the Commonwealth. pending their deportation.

On 20th November 1925 applications were made to the Full Court of the Supreme Court of New South Wales on behalf of Walsh and Johnson for the issue of writs of habeas corpus directed to Yates. Among the grounds stated in the affidavits in support of the applications was the following "that the section of the Immigration Act under which the Board purported to act and the Minister purported to appoint the said Board was ultra vires the powers of the Commonwealth Parliament." On the same day the Full Court made rules nisi for the issue of writs of habeas corpus returnable on 23rd November 1925. Later on the above-mentioned 20th November the High Court, on the application of the Attorney- General of the Commonwealth, made orders removing the rules nisi from the Supreme Court into the High Court and they now came on for hearing.

Other material facts appear in the judgments hereunder.

37 CLR 39

37 C.L.R.]

OF AUSTRALIA. Watt K.C. and Evatt for the applicant Walsh, and Evatt for the applicant Johnson, took preliminary objections to the hearing of the applications by the High Court. Sec. 40 of the Judiciary Act is invalid. The only powers which can be invoked to support its validity are sec. 77 (II.) and (III.) and sec. 51 (XXXIX.) of the Constitution. But sec. 40 neither defines the extent to which the jurisdiction of a Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States, nor invests any Court of a State with Federal jurisdiction. The limit of investiture falls short of completely divesting a State Court of jurisdiction in a matter which is in the exclusive jurisdiction of the High Court. A definition of jurisdiction must be universal and certain. Sec. 77 does not give power to the Parliament to delegate to the High Court the definition of the jurisdiction of a State Court; nor does it contemplate a discretion in the High Court. Once a State Court is invested with Federal jurisdiction, the Parliament has no express power to take away the right to exercise that jurisdiction. The power to remove a cause is essentially a judicial power, and sec. 40 in that view gives to the Attorney-Generals something in the nature of judicial power. Sec. 40 is limited to matters in respect of which the High Court has original jurisdiction under sec. 76 of the Constitution, and that Court has not been given original jurisdiction in matters arising under a Federal statute. Sec. 40 is invalid to the extent that it enables the High Court to remove the whole of a cause when only part of it involves the interpretation of the Constitution. Sec. 40 cannot be supported under sec. 51 (XXXIX.), for it is not incidental to sec. 38A of the Judiciary Act (see Pirrie v. McFarlane 1 ). If sec. 40 valid, on its true interpretation it does not apply to the removal from State Courts of summary applications for habeas corpus to determine the right of personal liberty. The Supreme Court of New South Wales has ample power under the Charter of Justice and 9 Geo. IV. e. 83 to deal summarily with questions of the liberty of the subject. That jurisdiction is not taken away by sec. 39 (1) of the Judiciary Act. That Court has also, under its Federal jurisdiction, power to grant a writ of habeas corpus. To apply sec. 40 to habeas corpus would have the effect of destroying several of the essentials

1(1925) 36 C.L.R. 170, at p. 178. 37 CLR 40

of that remedy. It would deprive an applicant of the right to go

from Judge to Judge and from Court to Court until he gets a discharge or until the highest Court is reached. Certiorari never lies to remove habeas corpus from a Court which had power to grant it; and when an applicant is ordered to be discharged, that is the end of the matter and there is no appeal.

[ISAACS J. referred to Lloyd v. Wallach 1.] Habeas corpus is in a different position from ordinary litigation (Secretary of State for Home Affairs v. O'Brien 2; Cox v. Hakes 3 ). In O'Brien's Case it was held that the very general words of the Appellate Jurisdiction Act 1876 were insufficient to give a right of appeal in habeas corpus. It needs clear and precise words to take away the rights as to habeas corpus, and the word "cause" in sec. 40 should not be interpreted as including an application for habeas corpus. An application for habeas corpus is not a suit between parties.

[ISAACS J. referred to Holmes v. Jennison 4. [RICH J. referred to Ex parte Tom Tong 5.] If it were a suit between parties, how could the applicant go from Court to Court and get an independent decision from each ? It is not a lis or a legal proceeding (Ex parte Rowlands 6; R. v. Gee Dew 7; Ex parte Cuddy 8; In re Keller 9 Halsbury's Laws of England, vol. X., par. 90).

[ISAACS J. referred to Spencer Bower on Res Judicata, pp. 30, 133; Barnardo v. Ford 10.]

There is no one whom the Court is bound ex debito justitia to hear. The Court inquires for itself whether the detention is justified. Sec. 40 does not apply SO as to enable any of the Attorney-Generals named to obtain an order from the Court unless the Commonwealth or one of the States is a party to the cause. If sec. 40 applies to habeas corpus the order for removal should not have been made and should now be set aside-because at the most only that part of the

1(1915) 20 C.L.R. 299. 2(1923) A.C. 603, at pp. 618, 621, 3(1890) 15 App. Cas. 506, at pp. 4(1840) 14 Peters 540, at p. 565. 5(1883) 108 U.S. 556. at p. 559. 6(1895) 16 N.S.W.L.R. (L.) 239. 627, 635. 7(1924) 3 Dom. L.R. 153, at p. 165. 8(1889) 40 Fed. Rep. 62. 514, 516-517. 9(1887) 22 L.R. Ir. 158, at pp. 162, 10(1892) A.C. 326. 37 CLR 41

cause involving a constitutional question should have been removed, and that is all that sec. 40 contemplates being removed because also this Court in the exercise of its discretion should not in the circum- stances of the case have made the order; and because the order was obtained by suppression of the material fact that it had been stated by counsel for the applicants that the constitutional question would not be relied on in the Supreme Court. Assuming the order for removal to have been properly made, an order should now be made under sec. 42 of the Judiciary Act remitting the case back to the Supreme Court on the ground that the cause does not really and substantially arise under the Constitution or involve its interpretation. For that purpose the cause as a whole must be looked at. A cause does not come within sec. 40 unless the claim or demand made is based on some provision of the Constitution and cannot be granted without applying some provision of the Constitution (see Miller V. Haweis 1 Hogan v. Ochiltree 2 In re Drew 3; Attorney- General (Cth.) v. Balding 4; R. v. Maryborough Licensing Court; Ex parte Webster &Co. 5 R. v. Young 6; Commonwealth V. Cole 7 Weed v. Ward 8; R. v. Beer 9; Pirrie v. McFarlane 10; Southern Pacific Co. v. Schuyler 11; Howat v. Kansas 12 ).

[STARKE J. referred to Gaines v. Fuentes 13.] Sir Robert Garran S.-G. and Lamb K.C. (with them E. M. Mitchell K.C. and Bowie Wilson), for the respondent. Sec. 40 of the Judiciary Act is valid and rests upon the same founda- tion as sec. 40A, which this Court has held to be valid (Pirrie V. McFarlane 14 ), namely, secs. 77 and 51 (XXXIX.) of the Constitution. Each of those sections would by itself be sufficient to support sec. 40. In the United States it has been held that the power of removal is necessarily implied from the fact that the judicial power is vested in the Supreme Court (Willoughby on the Constitution

1(1907) 5 C.L.R. 89. 2(1910) 10 C.L.R. 535. 3(1919) V.L.R. 600; 41 A.L.T. 65. 4(1920) 27 C.L.R. 395. 5(1919) 27 C.L.R. 249, at pp. 252, 6(1919) 27 C.L.R. 100. 7(1923) 32 C.L.R. 602. 8(1889) 40 Ch. D. 555. 9(1898) 62 J.P. 120. 10(1925) 36 C.L.R., at pp. 178, 220, 11(1913) 227 U.S. 601, at p. 610. 12(1922) 258 U.S. 181, at pp. 186, 13(1875) 92 U.S. 10. 14(1925) 36 C.L.R. 170. 37 CLR 42

A. of the United States, p. 124). The determination of the validity of

the detention of the applicants in this case is part of the judicial power of the Commonwealth, because involved in the validity of the detention is the interpretation of the law of the Commonwealth, and because the question of that validity arises out of that law and in the last resort must depend on the validity of that law. Under sec. 40 removal may be ordered at any stage. That section differs from sec. 40A, under which removal takes place at the particular stage when the question necessarily arises for decision (R. V. Maryborough Licensing Court Ex parte Webster &Co. 1 ). Sec. 40 would be useless if the right of removal arose only when the constitutional question came up for decision. If the constitutional question forms an ingredient of the cause, that is sufficient to justify removal (Railroad Co. v. Mississippi 2 People v. Sanitary District of Chicago 3 ). The American cases referred to in Miller V. Haweis 4 are based on the fact that the Supreme Court of the United States does not give decisions on State laws contrary to the decisions of the Supreme Courts of the particular States. The Judiciary Act makes provision for the exercise of the judicial power of the Commonwealth, and is not a procedure Act. It does what the Constitution requires to be done to complete the judicial power. It deals with the whole matter irrespective of the particular kind of cause-with all matters which come within the judicial power. In that it differs from the Judicature Act 1873, with which Cox v. Hakes 5 dealt. The definition of " cause' in sec. 2 of the Judiciary Act is inclusive; it includes "suit," which is defined as including any original proceeding between parties. That definition includes an application for habeas corpus, which is an original proceeding between parties. The respondent to such an application is a party; he is called on to show cause, he has to do what the Court orders and he may have to pay costs. [Counsel referred to Green v. Lord Penzance 6; Common Law Procedure Act 1899 (N.S.W.), secs. 252, 253 Cox v. Hakes 7 Barnardo v. Ford 8.]

1(1919) 27 C.L.R. 249. 2(1880) 102 U.S. 135. 3(1899) 98 Fed. Rep. 150. 4(1907) 5 C.L.R. 89. 5(1890) 15 App. Cas. 506. 6(1881) 6 App. Cas. 657. 7(1890) 15 App. Cas., at pp. 529, 8(1892) A.C., at p. 337. 37 CLR 43

Evatt, in reply,

PER CURIAM. The Court overrules the objections. The reasons will be delivered later.

Watt K.C. The detention of the applicants is illegal, for sec. 8AA of the Immigration Act is ultra vires. That section is to be presumed to be enacted under the power given by sec. 51 (XXVII.) to make laws with respect to immigration, and there is no warrant for calling in aid any of the other powers conferred by sec. 51. The immigration power does not authorize the Parliament to legislate with respect to a man whose home is in Australia and who is a constituent part of the people of the Commonwealth, more especially if he has been such a constituent part since before the establishment of the Common- wealth (Potter v. Minahan 1 R. v. Macfarlane Ex parte O'Flanagan and O'Kelly 2 ). The section, on its proper construction, does not apply to such a person, and, if it does, it is invalid. The immigration power cannot be applied to a person by reason of the fact that he came into Australia before the institution of the Commonwealth. On the authority of R. v. Electricity Commis- sioners; Ex parte London Electricity Joint Committee Co. 3- which was decided since R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly-sec. 8AA is invalid as being an attempt to confer part of the judicial power of the Commonwealth upon persons who are not a Court. The Board improperly rejected certain evidence tendered on behalf of the applicants. The Board was disqualified on the ground of bias by reason of the payments made for their services. There is no evidence upon which an honest tribunal could make a recommendation of deportation.

Sir Robert Garran, S.-G. Sec. 8AA is amply supported by the power given by sec. 51 (XXVII.) of the Constitution as to immigration and emigration. But it is valid also on broader grounds, based on the whole legislative power of the Commonwealth Parliament. It is legislation with respect to all the matters as to which power is

1(1908) 7 C.L.R. 277, at p. 298. 2(1923) 32 C.L.R. 518, at pp. 532, 580-583. 3(1924) 1 K.B. 171. 37 CLR 44

given by secs. 51 and 52 of the Constitution or elsewhere, It is

legislation incidental to the execution of the power vested in the Executive by sec. 61 of the Constitution, and to the powers vested in the Parliament, and is therefore justified by sec. 51 (XXXIX.). It is also legislation in aid of the King's peace of the Commonwealth, Sec. 8AA deals with a great national emergency, the question being the protection of the Commonwealth against injury from within, which may be as great as injury from without. The principles for determining the validity of such legislation are stated in Attorney- General for Ontario v. Attorney-General for Canada 1 (cited in Colonial Sugar Refining Co. v. Attorney-General for the Commonwealth 2 and Lloyd v. Wallach 3. The whole subject matter is one which comes within the Commonwealth sphere of legislative power (see R. v. Kidman 4 ).

[ISAACS J. referred to Farey v. Burvett 5.]

A famine might be an emergency justifying the fixing of the price of bread, just as war was held to be in that case. The remedy proposed-deportation-is protective and not punitive. The end being the protection of the King's peace in the Commonwealth, all the means to that end which are not forbidden by the Constitution are legitimate (D'Emden v. Pedder 6 ).

[ISAACS J. The means must be consistent with the letter and spirit of the Constitution. Is it consistent with the Constitution for the Executive to determine the matter, and award something which, though not a punishment, may have a punitive character ?]

Yes; at least where the question is appropriate for executive determination: e.g., whether a person is a danger to the Common- wealth. That deportation by executive act is within the power of the Commonwealth was decided in R. v. Macfarlane; Ex parte

O' Flanagan and O'Kelly 7. Deportation is a fundamental power which every sovereign State must claim. There is no authority the proposition that the Commonwealth Parliament has not the same power to deport its subjects as it has to deport aliens. The colonies before Federation had that power, and it must now be in

1(1912) A.C. 571, at p. 583. 2(1912) 15 C.L.R. 182, at p. 214. 3(1915) 20 C.L.R., at pp. 310- 4(1915) 20 C.L.R. 425, at pp. 440, 5(1916) 21 C.L.R. 433, at p. 453. 6(1904) 1 C.L.R. 91, at pp. 109-110. 7(1923) 32 C.L.R. 518. 37 CLR 45

the Commonwealth. Deportation by executive act has been provided for in Commonwealth statutes (Pacific Island Labourers Act 1901-1906, sec. 8 Unlawful Associations Act 1916-1917, sec. 6), and has been supported by this Court in Robtelmes v. Brenan 1.

[ISAACS J. referred to Pankhurst v. Kiernan 2.] It is essential that the Commonwealth Parliament should be able to give the Executive full powers for the protection of the country against such dangers as are indicated in sec. 8AA. As Rich J. pointed out in R. v. Macfarlane 3, the liberty of the individual must yield to the safety of the Commonwealth. The primary duty of the Government is to the community, and, if it is necessary for the safety of the community that certain persons should be removed from the country, the Parliament has power to enable the Executive to remove them. If the Parliament declares, or authorizes to be declared, the emergency, the extent of the emergency is a political matter. As long as deportation is enacted as for the protection of the Commonwealth, and not as a punishment for an offence, the intervention of the Judiciary is not necessary. Deportation is an appropriate remedy to prevent the obstruction of the lawful business of the country. It would not be proper to submit to a judicial tribunal the question whether the presence of a certain person in the Commonwealth was likely to be injurious to the community. None of the three departments / legislative, executive and judicial-may encroach on the powers of the others. But the Legislature may, subject to the prohibitions of the Constitution, assign various powers to the other departments. The Constitution does not say that because a matter affects property, or liberty or life, it must be assigned to the Judiciary for judicial determination. What the Parliament may not do is to vest judicial power in a non-judicial body; and here it has not done that. [Counsel referred to Barton v. Taylor 4; Willis and Christie V. Perry 5; Toronto Electric Commissioners v. Snider 6 Huddart Parker &Co. Pty. Ltd. v. Moorehead 7; Roche v. Kronheimer 8.]

1(1906) 4 C.L.R. 395. 2(1917) 24 C.L.R. 120, at p. 132. 3(1923) 32 C.L.R., at p. 578. 4(1886) 11 App. Cas. 197. 5(1912) 13 C.L.R. 592. 6(1925) A.C. 396. 7(1908-1909) 8 C.L.R. 330, at p. 357. 8(1921) 29 C.L.R. 329. 37 CLR 46

[ISAACS J. referred to Fong Yue Ting v. United States 1 Ng Fung Ho v. White 2; Mahler v. Eby 3; Ferrando v. Pearce 4.

Sec. 8AA deals with disturbances which threaten the peace, order and good government of the Commonwealth that is, it deals with cases in which the maintenance of the Constitution is in danger. The section is therefore valid under secs. 61 and 51 (XXXIX.) of the Constitution. The section is within the power as to immigration and emigration (sec. 51 (XXVII.) ). Under that power the Parliament has full control over the coming into and going out of the Common- wealth of any person. The expulsion of undesirable persons falls within the ordinary meaning of the word " emigration " (see Encyclopadia Britannica, sub " Migration," vol. XVIII., pp. 428, 431 sub " Huguenots," vol. XIII., p. 865 Encyclopodia of Laws of England, vol. IV., p. 485; Oxford Dictionary, sub 'Emigrate "). R.v. Macfarlane; Ex parte O'Flanagan and O'Kelly 5, is an authority for the validity of sec. 8AA except SO far as it applies to persons who immigrated before the establishment of the Commonwealth. That section in terms applies to people who may have become members of the community. The right which a man had before Federation to remain in a colony subject to the right of the colony to expel him became, on the establishment of the Commonwealth, a right to remain in Australia subject to the right of the Commonwealth to expel him. Otherwise there would, after Federation, have been no means of dealing with a person who, being a prohibited immigrant within the law of a particular colony, had got into that colony shortly before Federation. Just as under the naturalization power the Parliament might take away naturalization which had been granted before Federation (see Meyer v. Poynton 6 ), SO under the immigration power the Parlia- ment may legislate with respect to immigration which took place before Federation. Sec. 8AA, at its lowest, is a law with respect to trade and commerce with other countries and among the States (sec. 51 (I.) ) and with respect to matters relating to the departments of the public service (sec. 52). At the highest, it is a law with respect to all or any of the legislative powers of the Commonwealth, and particularly with respect to immigration and emigration. The end

1(1893) 149 U.S. 698, at p. 730. 2(1922) 259 U.S. 276, at p. 284. 3(1924) 264 U.S. 32, at p. 39. 4(1918) 25 C.L.R. 241, at p. 253. 5(1923) 32 C.L.R. 518. 6(1920) 27 C.L.R. 436. 37 CLR 47

is legitimate, being the removal of an obstruction to trade and commerce and public services, and to the peace, order and good government of the Commonwealth in relation to matters in respect of which the Parliament has power to make laws. The means- deportation-are appropriate as being protective or preventive (see R. v. Campbell; Ex parte Moussa 1 ). Those means are neither prohibited nor contrary to the letter or spirit of the Constitution. The only suggested prohibition is that against vesting judicial power in the Executive, but sec. 8AA does not vest any judicial power in the Executive. There is no judicial matter or controversy involved. The Constitution does not prohibit executive action without previous judicial inquiry. When a power is not in itself essentially judicial, the Parliament may, in the absence of any prohibition in the Constitution, exercise it itself or may vest it in the Executive. The Parliament could have ordered deportation by direct legislation or it could, in its discretion, invest a Minister with power to order deportation. The power being established, the Court is not concerned with the policy of the section. The section is, as stated on its face, an emergency law. The opinion expressed by the Privy Council in Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. 2, that the Parliament cannot legislate under sec. 51 (XXXIX.) unless there is in existence a law of the Parliament upon the particular subject matter in respect of which the proposed legislation is to be ancillary, is an opinion upon an inter se matter, and is beyond the terms of the certificate given by the High Court 3. This Court should therefore consider that question for itself. [Counsel also referred to R. v. Halliday; Ex parte Zadig 4.]

Watt K.C. Sec. 8AA appears in an immigration Act, and the immigration power is the only power which can be relied on to support it. It purports to be a law with respect to persons not born in Australia and with respect to their conduct, and it attempts to regulate their conduct by imposing on them a sanction for non-compliance with the ethical opinion of a Minister of the Crown. Because it is directed to persons not born in Australia the section is not a law with respect to

1(1921) 2 K.B. 473, at p. 480. 2(1914) A.C. 237; 17 C.L.R. 644. 3(1912) 15 C.L.R., at p. 234. 4(1917) A.C. 260. 37 CLR 48

A. trade and commerce; just as in Union Colliery Co. of British Columbia

V. Bryden 1 a law prohibiting Chinamen from working coal mines was held not to be a law as to coal mines but to be a law as to naturaliza- tion and aliens (see also Huddart Parker &Co. Pty. Ltd. v. Moorehead 2 ). The protection of trade and commerce may be the motive of the section, but its object is to prescribe a rule of conduct for persons not born in Australia. Sec. 51 (XXXIX.) cannot be relied on to justify a law of the Commonwealth Parliament unless that law is incidental to some other law of the Parliament or to some common law power which the Crown in right of the Commonwealth has (Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. 3 ). Under the guise of the exercise of the incidental power the Parliament cannot go beyond the necessities of the case or extend the field of any enumerated power (see The Moorcock 4 ). The immigration power does not extend to a person who was a constituent part of the people of Australia at the time of Federation, as Walsh was; and, in order to support the validity of sec. 8AA under that power, it must be construed as not applying to such a person. It should be SO construed also because the section is in an Act called the Immigration Act. That the section is intended to be under the immigration power is shown by the title of the Act and by sec. 3 (gg) of the Immigration Act, which provides that a person deported under the Act is a prohibited immigrant. The matter of the liberty of the subject generally has not been handed over to the Commonwealth Parliament, and can only be dealt with as incidental to some power which is in fact given. A law that a man who a Minister is of opinion has been guilty of obstructing trade and commerce shall be deported is not a law with respect to trade and commerce any more than a law that a man who a Minister is of opinion has been guilty of forging a bill of exchange shall be deported is a law with respect to bills of exchange. Sec. 8AA is not a law in regard to any matter within the legislative ambit: to be such it should prescribe a rule of conduct or provide for the conduct of any individual in regard to some matter within the legislative ambit under the section, however, it is impossible for any individual (not

1(1899) A.C. 580. 2(1908-09) 8 C.L.R., at p. 413. 3(1914) A.C. 237 17 C.L.R. 644 4(1889) 14 P.D. 64, at p. 68. 37 CLR 49

born in Australia), in the event of the proclamation being made and during its continuance, to know how to regulate his conduct, acts or speech SO as to avoid the punishment prescribed. Sec. 8AA is invalid because there is no connection between the recommendation of the Board and any of the objects which are specified in sub-sec. 2, such as the obstruction of trade and commerce. The words in sec. 51 (XXXIX.) "incidental to the execution of any power" presuppose that the powers referred to have been exercised. Sec. 8AA is not incidental to any power exercised by the Parliament, but is incidental to the object which the Parliament intended to effect. In order to support the validity of an Act which affects to operate on the general liberty of the subject, there must be indicated some law the execution of which needs the assistance of that restriction of liberty. The argument based on sec. 8AA being justified as emergency legislation is disposed of by Toronto Electric Commissioners v. Snider 1. The Parliament, if it intended to regulate trade and commerce SO as to prevent interference with it, might have made a law prohibiting such interference and making deportation the sanction. But it would be necessary that that sanction should be imposed as a punishment SO as to make it a matter for the Judiciary. The means of preventing the evil to which sec. 8AA is directed are not consistent with the letter and spirit of the Constitution. The letter of the Constitution requires that the judicial part of the means shall be exercised by the Judiciary, and the spirit of the Constitution requires that the liberty of the subject shall be dealt with only by the Judiciary. Deportation under sec. 8AA is a punishment. It is a deprivation of a right except in the case of an alien, who has no right to be in the country. The American cases as to deportation all refer to aliens; and the word

'deportation" is appropriate to the expulsion of an alien and not to that of a citizen. What the Minister is required by sec. 8AA (2) to do, namely, to form an opinion on certain matters, is an exercise of judicial power, and can be conferred only upon a Court. Even if sec. 8AA is valid, since it is found in an immigration Act it must be construed SO "as to exclude persons who are not subject to the immigration power. The Board deprived the applicants of their

1(1925) A.C. 396. 37 CLR 50

statutory right to show cause, for they refused to hear certain

evidence which the applicants desired to give (see Immigration Regulations 1913 (Statutory Rules 1925, Nos. 146 and 147).

Evatt. It has been suggested that the two questions in this case are :-(a) Can the Parliament validly legislate to the effect that persons other than aliens or immigrants shall be deported ? (b) If so, can it do SO without the intervention of the judicial power ? The vital issue here is not covered by these two questions. Question (a) may be answered " 'Yes," if the enactment in question is a part of a law with respect to any one of the placita in secs. 51 and 52. Similarly question (b) may also be answered "Yes" without the true principle in this case being determined. The absence of the intervention of the judicial power does not in itself invalidate the legislation, but it may show that an enactment is not in substance

law " with respect to " any relevant head of power. For example, an enactment that " any person who in the opinion of the executive Government is an alien shall be deported" is bad, not because of the absence of reference to the judicial organs of the Commonwealth, but because such absence points to the fact that the enactment is not a law with respect to aliens at all, but merely a law with respect to the opinion of the Government concerning certain persons. The judicial power of the Commonwealth is protected from complete subversion by the legislative power, because the shutting off of access to the Courts may be strong or conclusive evidence that Parliament has gone outside the field indicated in secs. 51 and 52 of the Constitution. This case is the corollary to the decision in Amalgamated Society of Engineers v. Adelaide Steamship Co.

37 CLR 51

and commerce implies (a) a command with respect to that subject, (b) a duty or obligation really connected with that subject and (c) an appropriate sanction. For the purposes of the trade and commerce power sec. 8AA says in substance: "Any person who, in the opinion of the executive Government or its agents, injures trade and commerce shall be deported." There is no command with respect to trade and commerce, there is no duty or obligation imposed with reference to that subject matter, and, although there is a sanction stated, it has no relation to any command genuinely connected with trade and commerce. It is impossible for any person to obey such a law. It may be admitted that a law which says "any person who injures trade and commerce shall be deported" is a valid law, because in that case the connection between the sanction, the command and the duty is obvious. The principle applies to every head of power in secs. 51 and 52. " Any person who forges a bill of exchange shall be deported " may be a valid law with respect to bills of exchange, but an enactment to the effect that " "any person who in the opinion of the Minister has forged a bill of exchange shall be deported" is bad. This view is consistent with all the judgments in R. v. Barger 1, including those of Isaacs J. 2 and Higgins J. 3. Trade and commerce is a practical conception, and has been SO regarded by this Court (New South Wales v. Commonwealth 4 W. &A. McArthur Ltd. v. Queensland 5 ). Giving the widest scope to the concept, trade and commerce does not include opinions about trade and commerce, or opinions about the activity of any person in connection with trade and commerce. [Counsel referred to Attorney-General for Ontario V. Reciprocal Insurers 6.] If sec. 8AA is a valid law with respect to trade and commerce, Parliament could validly enact that a person who is in fact carrying on purely domestic trade within the State and is not engaged in inter-State trade in any way, could be punished, because in the opinion of the executive Government of the Common- wealth his trade interfered with inter-State trade. It is obvious that an enactment in these words, "any person who obstructs

1(1908) 6 C.L.R. 41. 2(1908) 6 C.L.R., at p. 99. 3(1908) 6 C.L.R., at pp. 119-120. 4(1915) 20 C.L.R. 54, at pp. 99-101. 5(1920) 28 C.L.R. 530, at pp. 545- 6(1924) A.C. 328, at pp. 337-338. 37 CLR 52

trade and commerce shall be deported, and the Minister shall decide

whether such person is guilty of obstruction or not," is bad, because it vests judicial power in the Minister. This enactment, although it does not vest judicial power in the Minister, is similarly bad

JOHNSON;

because there is no nexus between deportation and any obligation imposed with respect to trade and commerce. The law as to trade and commerce is the same before the Act as after; no rule is prescribed either of conduct or even of thought, and therefore 8AA cannot stand as a law with respect to trade and commerce. It is also suggested that sec. 8AA is a valid law under sec. 52 of the Constitution with respect to public departments. The same reasoning, however, that prevents the enactment from being a law with respect to trade and commerce also prevents it from being a law with respect to public departments. The sanction of deportation operates, not upon obstruction to public departments, but upon the expression of the opinion of the Executive about such matters. In other words, Parliament is really giving to itself or the executive Government the power to enlarge the legislative field marked out in secs. 51 and 52. Nor is sec. 8AA a valid law under sec. 51 (XXXIX.). The argument is that sec. 51 (XXXIX.) justifies legislation with respect to matters incidental to the execution of powers vested in the executive Government, that by virtue of sec. 61 the executive Government has a duty to maintain the Constitution, and therefore that Parliament can pass this law protecting the Constitution by removing obstructive persons. In order to answer this, it is not necessary even to rely upon the decision in Attorney-General for the Commonwealth v. Colonial Sugar Refining Co.

37 CLR 53

Weaving Co. 1 ). So far as executive power is derived from valid Commonwealth legislation, it is obvious that sec. 51 (XXXIX.) does not enlarge the scope of legislative power. Apart from such executive power, there are certain direct executive powers created by the Constitution itself, for example, by secs. 64, 67, 68, 69, 70, 81, 84, 85, 119; and the decision in R. v. Kidman 2 is based upon the duty of the executive Government to protect its own organs against fraud by recourse to the judicial power. At the most, however, the executive power of the Commonwealth given by implication in the Constitution does not exceed the executive powers exercisable by the King himself by virtue of his common law prerogatives. So far as the Dominions are concerned, it may be that the prerogatives exercisable by the Governor-General are less than those exercisable by the King in England (Musgrave v. Pulido 3 ), and in a Federal union, such as Australia, there has to be in addition a division of these prerogative powers between the central and local Governments (Bonanza Creek Gold Mining Co. v. The King 4 --for example, the common law right of excluding aliens apart from legislation and the common law prerogative of the King in time of war would clearly be exercisable by the Commonwealth executive Government (see Joseph v. Colonial Treasurer of New South Wales 5 ). The real question is whether there is any common law or inherent right of the King, even in England, to expel or deport British subjects from his realm. There is no such power, although aliens may be in an entirely different position (Johnstone v. Pedlar 6 ).

[STARKE J. referred to Walker v. Baird 7.] If the King were to order the deportation of a British subject apart from statutory powers, an action would lie against every individual taking part in such illegality, and on an application for habeas corpus it is obvious that the King's command would be no answer. The duty of keeping the King's peace is not a special duty of the executive Government at all, but the right and duty of every subject of the King (Dicey's Law of the Constitution, 8th ed., App., note X., p. 538; Maitland's Constitutional History, pp. 489-492). Moreover, there

1(1922) 31 C.L.R. 421, at p. 429. 2(1915) 20 C.L.R. 425. 3(1879) 5 App. Cas. 102. 4(1916) 1 A.C. 566, at pp. 579-581, 5(1918) 25 C.L.R. 32. 6(1921) 2 A.C. 262. 7(1892) A.C. 491. 37 CLR 54

is no inherent power of the King to prevent actual or apprehended

interference with his own public service by arresting British subjects and ejecting them from the country, let alone a power to eject on suspicion of interference, When an officer of the Government arrests a supposed thief, he is not exercising any power of the King, but is simply a citizen keeping the King's peace, which he must do or be liable for a common law misdemeanour. If he makes a mistake, he may have no defence to a civil or a criminal charge. There is no analogy whatever between the chairman of a public meeting ejecting persons obstructing its proceedings and the Government ejecting resident British subjects. One is lawful, but the other is a civil wrong. It follows, therefore, that, inasmuch as there is no executive power vested in the Commonwealth Government to deport British subjects, there can be no legislation under sec. 51 (xxxix.) to provide for such deportation by legislation. Sec. 8AA is not justified as an emergency law, but (a) the situation in time of war may be entirely different, as per Isaacs J. in Farey v. Burvett 1; (b) there is no reference to "emergency" in sec. 51 or sec. 52, and the Commonwealth Parliament has no emergency power except with respect to naval and military defence, and such power is not relied on here; (c) the position in Canada is different, because there the residuary power of legislation is in the central authority; (d) Snider's Case 2 shows that, even where emergency is relied upon, the existence of an emergency is a question of fact, and here there is no evidence of emergency in fact, but simply of an opinion of the Government. It follows that sec. 8AA can only be supported, if at all, under the power of "immigration and emigration." It is clearly not a law with respect to emigration, because the fundamental idea of emigration is voluntary departure from one's home country to another. With respect to immigration, the decisions of the High Court establish clearly that the power does not apply to any person who, at the moment when the power is sought to be applied to him, has become a part of the people of Australia, with his permanent home here. This test is in substance adopted by the five Justices in Potter v. Minahan 3 and by Knox C.J., Higgins and Starke JJ. in

1(1916) 21 C.L.R., at p. 453. 2(1925) A.C. 396. 3(1908) 7 C.L.R. 277. 37 CLR 55

R. v. Macfarlane; Ex parte O'Flanagan and O'Kelly 1. The test is a simple one: Has the person at the moment in question his permanent home in Australia (Dicey's Conflict of Laws, pp. 83-93) ? As Isaacs J. pointed out in Potter v. Minahan 2, locality of birth, although an evidentiary fact, may be of little moment. The Courts will look at all the circumstances of each case: place of birth; place of residence; length of residence; intention of remaining in the country the colour of the person in question, having regard to the policy of the Australian people the question whether the individual is married and has had children born here and brought up here; the nationality of the individual, whether a person alien born has be- come naturalized or not; the public positions held by the individual any period of probation indicated by Parliament as desirable. All these are to be looked at, but the question is not one of law but a question of fact in each case. Potter v. Minahan decides definitely that the test mentioned is the test to be applied on entry into the Commonwealth. It follows that the same test (it being a test of the power) must be applied to a person resident in the Commonwealth. It is impossible to suppose that if two persons have their permanent homes in Australia, the immigration power does not apply to one who, having visited another country, comes back here, and yet does apply to the other who has not left the country since establishing his home here. Johnson and Walsh are both Australians within the meaning of the test. Therefore, sec. 8AA either is invalid altogether as an immigration law, or, if valid, does not apply to them. In the Irish Envoys' Case 3 this argument was not open, because both persons in question there were casual visitors to this country. In each case the rule should be made absolute.

Sir Robert Garran S.-G., in reply. The fact that sec. 8AA is in an immigration Act does not prevent its validity being supported under other powers, and it should be read without any limitation due to its association with provisions as to immigration in the same Act. There may be provisions in an amending Act which are not within the title or scope of the original Act, and there is nothing in the

1(1923) 32 C.L.R., at pp. 533, 580, 583. 2(1908) 7 C.L.R. 277. 3(1923) 32 C.L.R. 518. 37 CLR 56

words of sec. 8AA to tie it to the immigration power. One law may be

referred to several powers. If one power is sufficient to support it, it does not matter that the others do not (see Robtelmes v. Brenan 1 It is only when an Act can be supported by one power only that it will be construed SO as to come within that one power (see Colonial Sugar Refining Co. v. Attorney-General for the Commonwealth 2 ) [Counsel referred to Duncan v. State of Queensland 3; Waterside Workers' Federation of Australia v. Gilchrist, Watt &Sanderson Ltd.4.] The summons is a sufficient one. Welsbach Light Co. of Australasia V. Commonwealth 5 is absolutely in point. A summons which stated no more than that under the powers conferred on him the Minister summons the particular person to appear before a Board &. would be sufficient. Before the Board it is necessary, in accord- ance with natural justice, to inform the person summoned what acts he is alleged to have been concerned in; and that was done. Any question of natural justice depends on what was done before the Board, and the question is one of fact and not of form (R. v. Duff 6 ). Sec. 8AA is a law with respect to trade and commerce notwithstanding that it is only the opinion of the Minister about trade and commerce which brings trade and commerce into the section. [Counsel referred to United States v. Ju Toy 7; Tang Tun v. Edsell 8.]

[ISAACS J. referred to Reetz v. Michigan 9.] The section may be read as applying where there is in fact an obstruction of trade and commerce. If that is its proper construction, then, if anything is done under the section which has no relation to trade and commerce, it would not be lawfully done. If it were established that the acts as to which the Minister had formed an opinion were in relation to purely intra-State ships, the Court on an application for habeas corpus or other proceedings could say that the section did not apply. If sec. 8AA is valid only under the immigration and emigration power, it applies to immigration or emigration as well before as after Federation. Those words were

1(1906) 4 C.L.R., at pp. 415, 417. 2(1912) 15 C.L.R., at pp. 195, 211. 3(1916) 22 C.L.R. 556, at pp. 604- 4(1924) 34 C.L.R. 482, at pp. 521. 5(1916) 22 C.L.R. 268. 6(1921) 41 N.S.W.W.N. 23. 7(1905) 198 U.S. 253, at pp. 262- 8(1912) 223 U.S. 673, at p. 675. 9(1903) 188 U.S. 505. 37 CLR 57

used at a time when it was known that after Federation the States would have no effective powers of legislation with regard to immigration or emigration, and it could not have been intended to limit their meaning to immigration or emigration after Federation.

Evatt, in further reply. It is now suggested that sec. 8AA may be read as follows: "In cases where there is in fact an obstruction to trade and commerce the executive Government may deport certain persons suspected of being connected with such obstruction." There are three answers to this view :-(a) The section cannot be SO read. (b) Even if SO read, the section is not a valid law with respect to trade and commerce. There may be obstruction in fact to trade and commerce, but no person can be punished under a law with respect to trade and commerce unless he is in fact connected with the actual obstruction. (c) Even if the section can be SO read and is valid law with respect to trade and commerce, the onus is on the respondent on an application for habeas corpus to prove all the facts necessary to justify such detention and arrest. Here there is no evidence of obstruction in fact, and therefore the rule should be made absolute.

Cur. adv. vult. Knox C.J. The applicant in each case is detained in custody pending deportation in pursuance of an order made under sec. 8AA of the Immigration Act 1901-1925, and the question for decision is whether such detention is lawful.

Each applicant having obtained in the Supreme Court of New South Wales a rule nisi calling on the respondent Robert Walter Yates, the person in whose custody he was detained, to show cause why a writ of habeas corpus should not issue, an order was made in each case by this Court, on the application of the Attorney-General of the Commonwealth, removing the cause into this Court in pursuance of sec. 40 of the Judiciary Act. On the motions to make absolute the rules nisi coming on in this Court, counsel for the applicants submitted that this Court had no jurisdiction to entertain the matter and, in the alternative, that the order for removal ought to

37 CLR 58

be rescinded. I have had the advantage of considering the opinion

about to be expressed by my brother Starke on the questions SO raised, and agree with him both in his conclusions and in the reasons by which they are supported. It is therefore unnecessary for me to deal further with them.

The preliminary questions being disposed of, it remains to consider whether the rules nisi should be made absolute.

The legality of the detention of the applicants was challenged in this Court on a number of grounds, some of which imputed bias, mala fides and improper conduct to the members of the Board in connection with the proceedings before it. Ultimately these grounds were abandoned by counsel for the applicants; but, the charges having been made, I think it right to say that in my opinion there was no shadow of justification for making the imputations referred to, and they should never have been made. I desire to say further that, having had the opportunity of reading the transcript of the proceedings before the Board, I have come to the conclusion that the members of the Board showed admirable patience and self- restraint, having regard to the conduct of counsel before them, which fell lamentably short of the standard which ought to, and generally does, regulate the conduct of members of the Bar. Apart from these matters counsel for the applicants rested their case mainly on the contention that sec. 8AA of the Act was beyond the powers of the Parliament. It was pointed out by Viscount Haldane, in delivering the opinion of the Judicial Committee in Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. 1, that the necessity for considering this question arose from the Federal nature of the Constitution and from the express provisions of secs. 51 and 107 of that instrument. In this case, as in that 2, "the burden rests on those who affirm that the capacity to pass" this law was put within the powers of the Commonwealth Parliament to show that this was done." Sec. 8AA is in the words following: (1) If at any time the Governor-General is of opinion that there exists in Australia a serious industrial disturbance prejudicing or threatening the peace, order or good government of the Commonwealth, he

1(1914) A.C. 237 ; 17 C.L.R. 644. 2(1914) A.C., at p. 255; 17 C.L.R., at p. 653 37 CLR 59

may make a proclamation to that effect, which proclamation shall be and remain in force for the purposes of this section until it is revoked by the Governor-General (2) When any such proclamation is in force, the Minister, if he is satisfied that any person not born in Australia has been concerned in Australia in acts directed towards hindering or obstructing, to the prejudice of the public, the transport of goods or the conveyance of passengers in relation to trade or commerce with other countries or among the States, or the provision of services by any department or public authority of the Common- wealth, and that the presence of that person in Australia will be injurious to the peace, order or good government of the Common- wealth in relation to matters with respect to which the Parliament has power to make laws, may, by notice in writing, summon the person to appear before a Board, at the time specified in the summons and in the manner prescribed, to show cause why he should not be deported from the Commonwealth. (3) Sub-sections 2, 3 and 4 of section eight A of this Act shall apply in relation to the Board mentioned in the last preceding sub-section." Sub-secs. 2, 3 and 4 of sec. 8A of the Act are in the words following (2) A Board appointed for the purpose of the last preceding sub-section shall consist of three members to be appointed by the Minister. (3) The Chairman shall be a person who holds or has held the office of Judge, or Police, Stipendiary or Special Magistrate. (4) (a) If the person fails to appear at the time specified in the summons to show cause why he should not be deported, or (b) the Board recommends that he be deported from the Commonwealth, the Minister may make an order for his deportation."

Sub-sec. 1 of sec. 8AA may be excluded from consideration, no question having been raised as to its validity. The first step towards determining whether the law contained in sub-sec. 2 is valid is to ascertain the meaning of the words in which it is expressed and the object or effect of the enactment. Read according to ordinary rules of grammar, sub-sec. 2 applies only to persons not born in Australia, and provides that, if the Minister is satisfied (a) that any such person has been concerned in certain acts, and (b) that such acts were directed towards hindering or obstructing certain operations, and (c) that such hindrance or obstruction was to the prejudice of the

37 CLR 60

public, and (d) that the operation to the hindrance or obstruction

of which the acts were directed consisted of either (1) the transport of goods or the conveyance of passengers in relation to trade and commerce with other countries or among the States, or (2) the

JOHNSON;

provision of services by any department or public authority of the Commonwealth, and (e) that the presence of that person in Australia will be injurious to the peace, order and good government of Australia in respect to some matter and (f) that Parliament has power to make laws as to that matter, he may summon the person to appear before a Board to show cause why he should not be deported. Shortly stated, sub-sec. 2 purports to authorize the Minister, if he is satisfied that the specified conditions exist and that the presence in Australia of any person not born in Australia will be injurious to the peace, order and good government of the Commonwealth in relation to any matter with respect to which the Parliament has, in the opinion of the Minister, power to make laws, to call on such person to show cause why he should not be deported from the Commonwealth. Sub-sec. 3 provides by reference for the constitution of a non-judicial tribunal before which cause may be shown, and for the deportation of the person called on if he fails to appear before the tribunal or if the tribunal recommends that he be deported. The object aimed at-the effect which would be produced by the exercise of the authority conferred-is the removal from Australia of any person not born in Australia whose continued presence in Australia is, in the opinion of the Minister, likely to be injurious in the manner specified and the remedy provided-deportation-is in my opinion, clearly preventive and not punitive in its nature. It is true that the operation of the enactment is made conditional on the Minister being satisfied that the person proposed to be dealt with has been concerned in acts which may be supposed to be detrimental to the welfare of the Commonwealth; but those acts are not, either by this section or, SO far as I am aware, by any other law of the Commonwealth, prohibited or declared to be unlawful, nor is any punishment provided by law for persons concerned in committing them. The section provides, not that a person who has been concerned in acts of the kind specified shall be punished by being deported, but that, if the Minister is satisfied that he has

37 CLR 61

been concerned in such acts, he may be removed from Australia in order to prevent an apprehended injury to the peace, order or good government of the Commonwealth in relation to matters not necessarily connected in any way with the class of acts in which he is found to have been concerned. A law containing no provisions other than those contained expressly or by reference in sec. 8AA would, I think, be correctly described as an Act to authorize the deportation of persons not born in Australia whose presence in Australia will in the opinion of the Minister be injurious to the peace, order or good government of the Commonwealth in relation to any matter with respect to which the Parliament has power, in his opinion, to make laws.

The Solicitor-General contended that this enactment was a valid exercise of one or more of the following powers of the Parliament: 1 The power to make laws with respect to immigration and emigration (sec. 51 (XXVII.)); (2) the power to make laws with respect to trade and commerce with other countries or among the States (sec. 51 (1.) ); (3) the power to make laws with respect to matters relating to the public service (sec. 52 read with sec. 61) (4) the power to make laws with respect to matters incidental to the execution of any power vested by the Constitution in the Parliament or in the Government of the Commonwealth or in any department or officer of the Commonwealth (sec. 51 (xxxix.) read with sec. 61); (5) the power to make laws with respect to all the matters with respect to which the Parliament is empowered by the Constitution to make laws. It will be convenient to consider the several powers invoked in the order in which I have stated them.

1Immigration and Emigration.-In my opinion, the validity of the law as an exercise of this power is established by the decision in the Irish Envoys' Case (R. v. Macfarlane; Ex parte Flanagan and O'Kelly 1 ). In that case it was held that sec. 8A of the Act was a valid exercise of the power. Sec. 8A purports, as does sec. 8AA, to confer on the Minister authority, if he be satisfied of the existence of certain specified facts, to deport from the Commonwealth persons not born in Australia. I agree with the opinion expressed by my brother Starke in that case, that sec. 8A is aimed at and hits immigrants 1(1923) 32 C.L.R. 518. 37 CLR 62

and not members of the Australian community, and that it should

not be construed as extending to persons who had made their homes in Australia and become part of its people, and that its validity as a law with respect to immigration depends on this conclusion. No reason exists for attributing to the expression "person not born in Australia " used in sec. 8AA a meaning different from that given in the case under notice to the expression "person who was not born in Australia " in sec. 8A of the same Act; and it follows that, sec. 8A having been held to be a valid exercise of the power to make laws with respect to immigration because its operation is limited to persons coming into or already in Australia who have not become members of the Australian community, sec. 8AA, the operation of which is limited to the same class of persons by words indistinguish- able from those used in sec. 8A, is also a valid exercise of that power. But the constitutional validity of the enactment depends on its operation being SO limited, and it thus becomes necessary to con- sider whether either of the applicants is a person within the scope of the power to make laws with respect to immigration.

The rules must, in my opinion, be made absolute, and the applicants released.

Rules nisi absolute with costs. Order that

applicants be immediately discharged from custody without the issue of a writ of habeas corpus. Solicitors for the applicants, R. D. Meagher &Co. Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.

1(1916) 22 C.L.R. 268. 2(1916) 22 C.L.R., at p. 276