R v Carter; Ex parte Kisch

This case concerned an application for a writ of habeas corpus brought by Egon Erwin Kisch, a Czechoslovakian national, against Ernest Albert John Webb Carter, the master of the vessel S.S. Strathaird. Kisch sought to challenge his detention on board the vessel, which Carter justified on the grounds that Kisch was a prohibited immigrant under the *Immigration Act 1901-1930*. The Commonwealth intervened in the proceedings.

The central legal issues before the High Court were whether section 3 (gh) of the *Immigration Act 1901-1930* was a valid exercise of the Commonwealth Parliament's legislative power, and if so, whether Kisch had been lawfully declared a prohibited immigrant under that section, thereby justifying his detention by the ship's master. The Court also considered the scope of a shipmaster's authority under section 13B of the Act to detain individuals reasonably supposed to be prohibited immigrants.

The Court held that section 3 (gh) of the *Immigration Act 1901-1930* was a valid law with respect to immigration and within the constitutional power of the Commonwealth Parliament. However, it found that the Minister's declaration deeming Kisch a prohibited immigrant was ineffective. While a Minister's declaration under section 3 (gh) is conclusive as to the undesirability of an immigrant, it is not conclusive as to the source of the information upon which that opinion is based. The Court reasoned that the Act requires the Minister's opinion to be formed upon information received from specific sources, namely the Government of the United Kingdom, a British Dominion, or a foreign government. In this instance, the Commonwealth failed to provide sufficient evidence that the information relied upon by the Minister originated from such a specified source. Consequently, Kisch had not been validly declared a prohibited immigrant.

The Court made the order absolute, directing that Kisch be released from detention by the respondent Carter without the issue of a writ of habeas corpus, and awarded costs. The Court noted that while the master's authority to detain extends to persons reasonably supposed to be prohibited immigrants, this justification ceases once a competent court determines the person is not a prohibited immigrant.