Lee Fay v Vincent

The appellant, Lee Fay, was convicted in a Court of Petty Sessions for an offence under section 46 of the Factories Act 1904 (W.A.). The charge alleged that the appellant, as the occupier of a factory, employed a Chinese person who had not been employed in a factory on or immediately before 1 November 1903. The Chinese person in question was a naturalized British subject residing in Western Australia, who had been employed in a factory in Victoria on the relevant date but not in Western Australia. The appellant objected to the validity of the Act, arguing it imposed unlawful discrimination between residents of different States. A case was stated for the Supreme Court of Western Australia, which, assuming jurisdiction under section 5 of the Judiciary Act 1907, transmitted the proceedings to the High Court.

The High Court was required to determine two principal questions. Firstly, whether the Supreme Court had the power to determine the case, particularly in light of the Judiciary Act 1907 and the nature of the constitutional questions raised. Secondly, the court needed to consider the validity of the Factories Act 1904, specifically whether its provision discriminated between residents of different States, contrary to section 117 of the Commonwealth Constitution, and whether the Act was within the legislative competence of Western Australia. The court also had to address the interpretation of the term "factory" within the exemption clause of section 46.

The High Court held that the case did not involve a question as to the limits inter se of the constitutional powers of the Commonwealth and the States, nor between the powers of different States. Therefore, the Supreme Court retained jurisdiction to determine the matter. However, the court treated the case as if it had been stated by the Supreme Court under section 18 of the Judiciary Act 1903 for the consideration of the High Court. The court found that section 117 of the Constitution, which prohibits discrimination against residents of other States, was inapplicable as the person in question was a resident of Western Australia and the rights were asserted within that State. The question of whether the Factories Act applied to employment in factories outside Western Australia was not a matter of federal jurisdiction, and the High Court could only consider it on appeal.

Consequently, the High Court remitted the case back to the Supreme Court of Western Australia for determination of the remaining issues, including the interpretation of the Factories Act. The appellant was ordered to pay the costs of the appeal to the High Court.