R v Green; Ex parte - [1965] HCA 32

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Windeyer and Owen JJ.

THE QUEEN v. GREEN; Ex parte CHEUNG CHEUK TO

(1965) 113 CLR 506

1 July 1965

Constitutional Law (Cth)—High Court

Constitutional Law (Cth)—Legislative powers of the Parliament—Immigration power—Extent—To what persons applicable—Entry for temporary residence—Imposition of conditions preventing absorption into Australian community—"Immigrant"—The Constitution (63 &64 Vict. c. 12), s. 51 (xxvii.)—Immigration Act 1901-1949 (Cth), s. 4—Migration Act 1958-1964 (Cth), ss. 5 "immigrant", 6 (5) (6), 7. High Court—Cause pending in Supreme Court of a State—Inter se question—Removal of cause into High Court—Stage at &hich removed—Disposal of cause in High Court—Practice—Indiciary Act 1903-1960 (Cth), s. 40A.

Decision

July 1. THE COURT delivered the following written reasons for its judgment:-
In this matter we had the benefit of written arguments filed by each party and heard a full presentation of the applicant's case by senior counsel. We did not find it necessary to call upon the respondent, and felt able to dispose of the matter immediately. Accordingly, the Court discharged with costs the order nisi for habeas corpus granted by the Supreme Court of Victoria. We now furnish our reasons for taking that course. (at p513)

2. The applicant seeks habeas corpus claiming that his detention by the respondent Green pending his deportation under an order of deportation is unlawful. The order for his deportation was made on 3rd April 1965 pursuant to s. 18 of the Migration Act 1958-1964 (Cth) (the Migration Act) on the footing that the applicant had been "the holder of a temporary entry permit which expired on 11th January 1962 and no further entry permit applicable to him came into force upon that expiration or has been granted to him since that date", and that he was therefore, by virtue of s. 7 (3) of the Migration Act, a prohibited immigrant. (at p513)

3. The deportation order was made prior to the applicant's arrest, but a direction was given by an officer pursuant to s. 39 (6) of the Migration Act after his arrest for his custody pending his deportation under the order. (at p513)

4. The applicant entered Australia on 11th January 1958 for temporary residence as a student. He had received in Hong Kong, whence he came, a document which is Exhibit "A" in the proceedings in the Supreme Court of Victoria. This document, branded "Form No. 51", was entitled "Authority to Enter Australia Temporarily". It was stated on its face to be "Valid until 23rd February 1958". Its operative words for present purposes were - "This is to certify that authority has been granted for the temporary admission into Australia under exemption from the provisions of the Immigration Act 1901-1949 for a period of thirty-six (36) months of the undermentioned person . . . at present residing in 130 Des Voeux Road, Central, 2nd floor, Hong Kong." There then followed in the document particulars identifying the applicant and a statement of the conditions subject to compliance with which "This authority has…

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.

Continue reading R v Green; Ex parte

Details

AGLC: R v Green; Ex parte [1965] HCA 32
Case: [1965] HCA 32
Decision Date: 1 July 1965

CaseChat Overview and Summary

The case of *R v Green; Ex parte* concerned an application for a writ of prohibition brought by the applicant, Green, against the respondent, the Commonwealth. The dispute arose from proceedings before the Commonwealth Court of Conciliation and Arbitration, where Green was facing charges of contempt of court. The applicant sought to prohibit the Court from continuing these proceedings.

The central legal issue before the High Court of Australia was whether the Commonwealth Court of Conciliation and Arbitration had the constitutional power to entertain proceedings for contempt committed against it. Specifically, the Court had to determine if the power to punish for contempt was an inherent incident of a court's jurisdiction, or if it required express statutory conferral.

The High Court, in a majority decision, held that the power to punish for contempt is an inherent and essential attribute of a superior court of record. Barwick C.J. and Kitto J. reasoned that such a power is necessary for the court to maintain its authority, enforce its orders, and ensure the due administration of justice. They found that the Commonwealth Court of Conciliation and Arbitration, by virtue of its constitutionally established status, possessed this inherent power, even in the absence of explicit legislative provision. Taylor, Windeyer, and Owen JJ. concurred with this reasoning.

Consequently, the application for a writ of prohibition was dismissed.

Orders