Ex parte Walsh and Johnson; In re Yates

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.