R v Macfarlane; Ex parte O'Flanagan and O'Kelly

[1923] HCA 39

32 CLR 518

MACFARLANE AND OTHERS. Ex PARTE O'FLANAGAN AND Ex PARTE O'KELLY.

O'FLANAGAN AND OTHERS

MACFARLANE AND OTHERS Constitutional Law-Powers of Commonwealth Parliament-Immigration-Ertent of

power-Deportation after entering Commonwealth-British subject-Intention to settle-Visitor to Commonwealth-The Constitution (63 &64 Vict. c. 12), secs. MELBOURNE,

51 (XXVIL), 71-Immigration Act 1901-1920 (No. 17 of 1901-No. 51 of 1920), May 29-31;

sec. 8A*-Prohibition-Quo warranto-Certiorari-Board appointed to recom- June 1.

mend as to deportation-Non-judicial tribunal-Action to restrain proceedings SYDNEY,

before Board-Injunction-Interlocutory injunction--Challenging validity of Aug. 23.

* Sec. 8A of the Immigration Act 1901-

all forms of law, or who advocates the 1920 provides that " (1) Where the

abolition of organized government, or Isaacs, Higgins,

Minister is satisfied that, within three

who advocates the assassination of years after the arrival in Australia of a

public officials or who advocates or person who was not born in Australia,

teaches the unlawful destruction of that person

property, or who is a member of, or who advocates the overthrow by force or

affiliated with, any organization which violence of the established government

teaches any of the doctrines and prac- of the Commonwealth or of any State,

tices specified in this paragraph, or of any other civilized country, or of

he may, by notice in writing, summon

32 CLR 519

Commonwealth statute-Criminal prosecution pending-Cause of action-Appre- hension of irreparable injury-Judiciary Act 1903-1920 (No. 6 of 1903-No. 38 of 1920), secs. 31-33, 80-Crimes Act 1914-1915 (No. 12 of 1914-No. 6 of 1915), sec. 24A [War Precautions Act Repeal Act 1920 (No. 54 of 1920), sec. 12].

Held, by Knox C.J., Isaacs, Rich and Starke JJ. (Higgins J. doubting), that sec. 8A of the Immigration Act 1901-1920 is a law with respect to immigration, and is therefore within the legislative power of the Commonwealth Parliament O'FLANAGAN conferred by sec. 51 (XXVII.) of the Constitution.

Held, also, by Knox C.J., Isaacs, Higgins, Rich and Starke JJ., that a Board appointed pursuant to sec. 8A was not a judicial tribunal, that is, a tribunal empowered to give a decision creating or declaring an obligation and, there- fore, that prohibition would not lie to prevent the Board from proceeding with the matter of a summons issued under the section to show cause against deportation; and that neither quo warranto nor certiorari was an appropriate remedy to prevent the Board from SO proceeding.

The two plaintiffs, who were British subjects born in Ireland and had recently arrived in the Commonwealth, had been arrested on a charge, under sec. 24A of the Crimes Act 1914-1915 (enacted by sec. 12 of the War Precautions Act Repeal Act 1920), of being engaged in a seditious enterprise. While that charge was pending the plaintiffs were summoned to appear before a Board appointed under sec. 8A of the Immigration Act to show cause why they should not be deported. The plaintiffs thereupon instituted an action in the High Court against the members of the Board claiming an injunction restraining the defen- dants from proceeding further with the matter of the summons. On an application by the plaintiffs for an interlocutory injunction,

Held, that the application should be refused By Knox C.J., Isaacs, Rich and Starke JJ., on the ground that sec. 8A of the Immigration Act is a valid enactment and applied to the plaintiffs

By Higgins J. on the ground that there was no such irreparable injury or urgency as warranted an interlocutory injunction.

Held, by Knox C.J., Isaacs and Rich JJ. (Higgins J. dissenting, Starke J. doubting), that the fact that the plaintiffs would be prejudiced in their defence on the criminal charge by the continuation of proceedings before the Board would, if sec. 8A were invalid, be a ground for granting an interlocutory injunction. the person to appear before a Board

or Special Magistrate. (4) (a) If the within the time and in the manner

person fails, within the prescribed time, prescribed, to show cause why he

to show cause why he should not be should not be deported from the

deported, or (b) the Board recommends Commonwealth. (2) A Board ap-

that he be deported from the Com- pointed for the purposes of the last

monwealth, the Minister may make an preceding sub-section shall consist of

order for his deportation, and he shall three members to be appointed by the

be deported accordingly. (5) Pending Minister. (3) The Chairman shall be

deportation the person may be kept in a person who holds or has held the

such custody as the Minister directs." office of Judge, or Police, Stipendiary

32 CLR 520

ORDERS NISI and MOTION. About 13th March 1923 Michael O'Flanagan and John Joseph O'Kelly, each of whom was a British subject born in Ireland, arrived in the Commonwealth: each of them having a passport issued by the Imperial Secretary of State for Foreign Affairs. On 30th April 1923 they were arrested on warrants charging them with being engaged in a seditious enterprise under the Crimes Act 1914-1915 as amended by the War Precautions Act Repeal Act 1920. On 8th and 15th May respectively, O'Flanagan and O'Kelly were served with summonses to appear before a Board, consisting of William Mac- pherson Macfarlane, Henry Edward Manning and John Stinson, appointed under sec. 8A of the Immigration Act 1901-1920, to show cause why they should not be deported. On 11th May, O'Flanagan and O'Kelly appeared before the Board, and objection was taken on their behalf to their being called on to show cause why they should not be deported, and on 19th May the objection was overruled. On 15th May, the criminal charges came on for hearing before a Stipen- diary Magistrate of New South Wales, and on the application of the informant the hearing was adjourned until 5th June. On 22nd May, O'Flanagan and O'Kelly each obtained an order nisi calling upon the members of the Board, the Minister administering the Immigration Act and the Commonwealth to show cause why a writ of prohibition should not issue to prohibit further proceedings before the Board upon the summons served on him and from making any recommendation to the Minister in respect of his deportation; and, in the alternative, to show cause why leave should not be granted to exhibit an information of quo warranto, or why the applicant should not have relief of a like nature to quo warranto; or why, in the alternative, a writ of certiorari should not issue. The grounds in each case were: (a) That the Commonwealth Parliament had no power to pass sec. 8A of the Immigration Act 1901-1920 in its present form; (b) in the alternative that the section is invalid SO far as it applies to British subjects; (c) that sec. 8A is invalid because it attempts to vest in the Board portion of the judicial power of the Commonwealth and the judicial power of the Commonwealth can only be exercised by the High Court or other Federal Courts created by Parliament or State Courts vested with Federal jurisdiction

32 CLR 521

(d) that there is no authority in the Commonwealth to legally deport from the Commonwealth the holder of a passport issued by the Imperial Secretary of State for Foreign Affairs to a British subject until after the term of the passport expires or is cancelled.

On 22nd May, O'Flanagan and O'Kelly and John Leo Francis Clancy instituted an action in the High Court against the members O'FLANAGAN of the Board by a writ claiming 1 a declaration that the defendants had no authority to proceed further as a Board in the proceedings in which the first two defendants were being called upon to show cause why they should not be deported, and 2 an injunction restraining the defendants from proceeding further in or about such matters.

Other material facts appear in the judgments hereunder. The orders nisi now came on for hearing. Watt K.C. and Evatt, for the prosecutors. The High Court has jurisdiction in this matter under sec. 75 (III.) of the Constitution for the Commonwealth is behind the Minister in his claim to deport the prosecutors. If it has not jurisdiction under sec. 75 (III.), it has under sec. 75 (v.); for the Minister is an officer of the Commonwealth. Pro- hibition will lie here; for the Board, as constituted by sec. 8A of the Immigration Act 1901-1920, is a Court and purports to act as a Court. The recommendation of the Board against deportation is final; if it does not recommend deportation the prosecutors cannot be deported. Prohibition will go to a person who assumes, under colour of legislative authority, to act as a tribunal affecting the rights of persons (R. v. Hibble; Ex parte Broken Hill Proprietary Co. (1) In re Clifford and O'Sullivan (2); Huddart, Parker &Co. Proprietary Ltd. v. Moorehead 3; Kimber v. Press Association 4; R. v. Ker- mond 5 ).

[ISAACS J. referred to R. v. Local Government Board 6 R. V. Maguire 7.]

The substance of a recommendation of a Board under sec. 8A is a pronouncement which directly affects the rights of the parties

1(1920) 28 C.L.R., 456. 2(1921) 2 A.C., 570, at p. 582. 3(1908-09) 8 C.L.R., 330. 4(1893) 1 Q.B., 65, at p. 73. 5(1898) 19 N.S.W.L.R. (L.), 392. 6(1902) 2 I.R., 349. 7(1923) 2 I.R., 58. 32 CLR 522

OF A. summoned before it, and the fact that execution of the pronounce-

ment is carried out by a third party does not differentiate the case from R. v. Hibble Ex parte Broken Hill Proprietary Co. 1. The proceedings of the Board are judicial proceedings dealing with matters affecting the liberty of the subject. (See Waterside Workers'

O'FLANAGAN Federation of Australia v. J. W. Alexander Ltd. 2 New South Wales

V. Commonwealth 3.)

[Knox C.J. referred to Newcastle Coal Co. v. Firemen's Union 4.]

The meaning of prohibition had been extended in New South Wales before the Constitution was passed, and this Court is not limited to the same extent as the Courts in England are as to granting prohibition. Secs. 30-33 of the Judiciary Act are an extension of the power to grant prohibition, and the writ may be issued wherever a body which has no legal right assumes a power which it has not got.

[STARKE J. referred to Tramways Case [No. 1] 5. [ISAACS J. referred to Peck v. Adelaide Steamship Co. 6.]

A recommendation of the Board affects rights just as much as does a verdict. From the moment of recommendation of deporta- tion the person affected can be deported at the will of the Minister. The presumption is that there will be a judicial proceeding before the liberty of the subject will be interfered with.

[RICH J. referred to R. v. Campbell 7.] If prohibition will not lie, quo warranto will. There is a wrongful assumption, under pretence of statutory authority, of part of the judicial power of the Commonwealth. The writ is appropriate, regardless of whether the Board is or is not sitting as a Court. Sec. 30 of the Judiciary Act enlarges the jurisdiction of the High Court, giving it jurisdiction over this subject matter, and the remedy is largely within the control of the Court. Sec. 32 gives the Court power to grant any remedy.

Lamb K.C. and C. Gavan Duffy, for the respondents, were not called upon as to the matters argued.

1(1920) 28 C.L.R., 456. 2(1918) 25 C.L.R., 434. 3(1915) 20 C.L.R., 54. 4(1908) 6 C.L.R., 466. 5(1914) 18 C.L.R., 54. 6(1914) 18 C.L.R., 167. 7(1921) 2 K.B., 473, at p. 480. 32 CLR 523

By permission of the Court, and with the consent of the defendants, counsel for the plaintiffs in the action for an injunction then moved for an interlocutory injunction pending the hearing of the action.

Watt K.C. and Evatt, for the plaintiffs. An injunction should go to restrain the Minister on the ground that sec. 8A of the Immigration Act is ultra vires. An injunction will lie in such a case. The matter

IS one which involves the interpretation of the Constitution, and under secs. 75 (v.) and 76 of the Constitution and secs. 30 to 33 and sec. 80 of the Judiciary Act this Court has jurisdiction to grant an injunction. Sec. 76 of the Constitution gives this Court the widest powers in order to prevent an infringement of the Constitution.

Knox C.J. referred to Thomas v. Williams 1.

RICH J. referred to Ellis v. Earl Grey 2; New South Wales V. Commonwealth 3; Richardson v. Methley School Board 4.]

The plaintiffs' liberty is put in jeopardy by the proceedings before the Board, and their rights are thereby interfered with. If there is shown a reasonable apprehension of a wrong being done by the continuance of an act done by a person who claims to act under a statute which is unconstitutional, this Court may grant an injunc- tion. There is a reasonable apprehension of an adverse decision by the Board which may have the result of what is contended to be an illegal deportation.

Knox C.J. referred to London and Blackwall Railway Co. v. Cross 5.

[ISAACS J. referred to Harris v. Beauchamp Brothers 6. [HIGGINS J. referred to In re Sawyer 7. [STARKE J. referred to Attorney-General for New South Wales V. Brewery Employees' Union of New South Wales 8.]

There is forced upon the plaintiffs a choice whether they will or will not defend themselves before the Board, and since the sanction behind the choice imperils their liberty they are entitled to an injunction. The facts of which the Minister was satisfied are those which con- stitute the charge made against the plaintiffs in the pending criminal

1(1880) 14 Ch. D., 864. 2(1833) 6 Sim., 214. 3(1915) 20 C.L.R., at p. 65. 4(1893) 3 Ch., 510, at p. 514. 5(1886) 31 Ch. D., 354. 6(1894) 1 Q.B., 801. 7(1887-88) 124 U.S., 220. 8(1908) 6 C.L.R., 469. 32 CLR 524

OF A. prosecution. The statement that he was SO satisfied was published

before the Board, and was calculated to interfere with the trial of the plaintiffs on that prosecution, and interfered with the plaintiffs' right to have the trial conducted without comments. If sec. 8A of the Immigration Act is invalid, the action in appointing the Board

O'FLANAGAN amounts to a contempt of Court, which is a ground for granting an

injunction (see Halsbury's Laws of England, vol. XVII, p. 270, par. 572; Kitcat v. Sharp 1.

[ISAACS J. referred to R. v. Clement 2. [STARKE J. referred to Cruickshank v. Bidwell 3.] Sec. 8A of the Immigration Act is invalid; for the power conferred by sec. 51 (XXVII.) of the Constitution to legislate with respect to immigration does not extend to the deportation of a British subject. who has or may become resident in the Commonwealth, for a dis- qualifying cause which may not have existed at the time of his entry into the Commonwealth, but may have developed at any time up to three years after his entry. The power does not authorize legislation as to a person who has properly and lawfully come within the Com- monwealth. There is power to enact conditions precedent to a per- son entering the Commonwealth, but not conditions subsequent to the entry. [Counsel referred to Potter v. Minahan 4: Robtelmes

Brenan 5 ] The word "immigration" implies an intention to settle in the country, and the power in sec. 51 (XXVII.) of the Constitution does not extend to visitors to Australia, Sec. 8A is also invalid because it attempts to enable a Minister to exercise a portion of the executive power of the Commonwealth, whereas by sec. 61 of the Constitution that executive power is vested in and is exercisable by the Governor-General. The only authority to delegate that power is in sec. 64, which enables the Governor-General to appoint officers to administer the Departments. Deportation is obviously a matter which falls within the executive power of the Commonwealth. [Counsel referred to Commonwealth v. Colonial Combing, Spinning and Weaving Co. 6; Inglis Clark's Australian Constitutional Law, pp. 52, 68; Harrison Moore's Commonwealth of Australia. 2nd ed., pp. 162, 163.]

1(1882) 52 L.J. Ch., 134. 2(1821) 4 B. &Ald., 218. 3(1899-1900) 176 U.S., 73. 4(1908) 7 C.L.R., 277. 5(1906) 4 C.L.R., 395, at p. 407. 6(1922) 31 C.L.R., 421, at pp. 452-453. 32 CLR 525

Lamb K.C. (with him C. Gavan Duffy), for the defendants. The Court will not consider the validity of an Act of the Commonwealth Parliament unless it is absolutely necessary. The question whether THE the Board will or will not proceed with its inquiry depends upon the plaintiffs themselves. If there were no Act of Parliament behind the Minister, he would simply be asking certain persons their opinions as O'FLANAGAN to whether they think that the plaintiffs should be deported. There is nothing illegal or wrong in that (Clough v. Leahy 1 ). As to any prejudice that may arise from publication of the proceedings, there is an adequate remedy in the Supreme Court of New South Wales if any right of the plaintiffs in the Police Court is affected. The power conferred by the Constitution as to immigration enables the Commonwealth Parliament to prevent a person whose presence in the Commonwealth is undesirable from coming in: and the com- plement of that power is to expel such a person if he has come into the Commonwealth. The immigration laws of the several Colonies before Federation contained provisions similar to those of sec. 8A, and applying to British subjects and visitors (see Immigration Restriction Act (1898) (N.S.W.): Immigration Restriction Act 1897 (W.A.), and the intention of sec. 51 (XXVII.) was to give to the Com- monwealth Parliament the same power as to immigration which the Colonies had. The term "immigrate" is satisfied by coming into the Commonwealth (Chia Gee v. Martin 2 Ah Yin v. Christie 3 [Counsel also referred to Attorney-General for Canada V. Cain and Gilhula 4; Hazelton v. Potter 5.]

Watt K.C., in reply. The colonial Acts only applied to "immi- grants," that is, persons who came with the intention of settling but the mere landing was prima facie evidence of the intention to settle.

Cur. adv. vult. Knox C.J. Each of the orders nisi will be discharged with costs. The motion for an interlocutory injunction will be refused with costs. The Court will deliver its reasons later.

1(1904) 2 C.L.R., 139, at p. 157. 2(1905) 3 C.L.R., 649. 3(1907) 4 C.L.R., 1428. 4(1906) A.C., 542. 5(1907) 5 C.L.R., 445 32 CLR 526

The following written judgments were delivered :- Knox C.J. The King v. Macfarlane; Ex parte O'Flanagan.--This is an application to make absolute an order nisi for prohibition directed to William Macpherson Macfarlane, Henry Edward Manning and John Stinson, constituting a Board appointed under

O'FLANAGAN sec. 8A of the Immigration Act 1901-1920, the Minister adminis-

tering that Act, and the Commonwealth, to prohibit further proceed- ings before the Board in respect of a summons calling upon the prosecutor to show cause why he should not be deported from the Commonwealth. In the alternative the prosecutor asks for relief in the nature of quo warranto or a writ of certiorari.

Sec. 8A of the Act is in the words following " (1) Where the Minister is satisfied that, within three years after the arrival in Australia of a person who was not born in Australia, that person- (a) has been convicted in Australia of a criminal offence punishable by imprisonment for one year or longer (b) is living on the prostitu- tion of others; (c) has become an inmate of an insane asylum or public charitable institution; or (d) is a person who advocates the overthrow by force or violence of the established government of the Commonwealth or of any State, or of any other civilized country, or of all forms of law, or who advocates the abolition of organized government, or who advocates the assassination of public officials or who advocates or teaches the unlawful destruction of property, or who is a member of, or affiliated with, any organization which teaches any of the doctrines and practices specified in this paragraph, he may, by notice in writing, summon the person to appear before a Board within the time and in the manner prescribed, to show cause why he should not be deported from the Commonwealth. (2) A Board appointed for the purposes 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) fails, within the prescribed time, 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 deporta- tion, and he shall be deported accordingly. (5) Pending deportation the person may be kept in such custody as the Minister directs."

32 CLR 527

The Minister has under this section summoned the prosecutor in each case to appear before a Board consisting of the respondents Mac- farlane. Manning and Stinson to show cause why he should not be deported from the Commonwealth. The ground on which this application is based is that the enactment contained in sec. 8A is beyond the power of the Commonwealth Parliament, but before the validity of the section can be called in question the Court must be satisfied that either prohibition, or certiorari, or relief in the nature of quo warranto is an appropriate remedy on the assumption that the Board is acting without statutory authority. As to prohibition it is well settled that the writ will not issue except to a Court or judicial tribunal having some jurisdiction which it is attempting to exceed (per Viscount Cave in In re Clifford and O'Sullivan 1 ) ). In R. V. Local Government Board 2 Palles C.B. laid down that to erect a tribunal into a Court or jurisdiction SO as to make its determinations judicial, the essential element is that it should have power by its determination within jurisdiction to impose liability or affect rights. In the present case there is, in my opinion, no ground whatever for holding that the Board is acting or attempting to act as a Court or judicial tribunal. It has no power by its determination to impose any obligation on any person or to affect any person's rights. Its sole function is to recommend-i.e. to advise the Minister-whether the prosecutor should or should not be deported. Its recommenda- tion has no binding force, imposes no obligations, and affects no rights. If it recommends deportation, the Minister is at liberty to act, or to refrain from acting, on the advice given. In my opinion, its duties are wholly ministerial, and not in any relevant sense judicial. I am therefore of opinion that the writ of prohibition is not an appropriate remedy in this case, even assuming the Board to have no statutory authority to proceed with the inquiry which it has begun.

Relief in the nature of quo warranto is no less inappropriate. An information in the nature of quo warranto will only lie in cases in which an office has been lawfully created by charter or by statute, the object being to prevent the usurpation of an office. Proceedings of this nature cannot be used to attack the legality of the creation of

1(1921) 2 A.C., at p. 583. 2(1902) 2 I.R., at p. 373. 32 CLR 528

the office. In the present case it is the legality of the power to

appoint the Board and not the legality of its appointment that is challenged by the prosecutor.

No argument was addressed to the Court in support of the applica- tion for the writ of certiorari, and in my opinion that remedy is obviously inappropriate.

What I have said with regard to Ex parte O'Flanagan also applies to Ex parte O'Kelly.

The orders nisi should be discharged. O'Flanagan v. Macfarlane.-This was an application for an interim injunction restraining the defendants from proceeding further as a Board in the proceedings in which the plaintiffs O'Flanagan and O'Kelly are being called on to show cause why they should not be deported.

The facts relating to the appointment of the Board and the sum- moning of these plaintiffs to show cause are stated in the reasons given by me on the application for prohibition made by them. The evidence shows that the plaintiffs are British subjects and that before they were summoned to show cause before the Board they were arrested on warrants charging them with being engaged in a seditious enterprise under the Crimes Act 1914-1915 as amended by the War Precautions Act Repeal Act 1920, and that they have been remanded on bail on that charge. It is admitted that the case which will be made for the prosecution on that charge is to a great extent the same as that which is to be investigated by the Board. In these circumstances it is clear that the investigation of the case before the Board, which will probably necessitate the plaintiffs tendering them- selves as witnesses, the conclusion at which the Board arrives, if unfavourable to the plaintiffs, and the order of deportation which the Minister has power in that event to make, may seriously prejudice the plaintiffs in their defence to the criminal proceedings which have been launched. Apart from the stigma which will attach in the event of an adverse finding, they may and probably will be practically compelled prematurely to disclose their defence to the criminal charge. The claim to an injunction is based on the alleged invalidity

32 CLR 529

of sec. 8A of the Immigration Act 1901-1920 as being beyond the legislative power of the Commonwealth Parliament.

The first question to consider is whether this Court should enter- tain an interlocutory application for an injunction based upon the alleged invalidity of a Commonwealth enactment. The same ques- tion has been the subject of judicial decision in the United States. In Cruickshank v. Bidwell 1 Fuller C.J., delivering the opinion of the Court, said It is settled that the mere fact that a law is unconstitutional does not entitle a party to relief by injunction against proceedings in compliance therewith, but it must appear that he has no adequate remedy by the ordinary processes of the law, or that the case falls under some recognized head of equity jurisdiction"; and the learned Chief Justice says 2 " Inadequacy law exists where the case made demands preventive relief, as, for instance, the prevention of multiplicity of suits, or the prevention of irreparable injury.

The mere assertion that the appre- hended acts will inflict irreparable injury is not enough. Facts must be alleged from which the Court can reasonably infer that such would be the result." The power of this Court to grant injunctions is at least as wide as, and probably wider than, that conferred on the Supreme Court of the United States.

The fact that the plaintiffs' rights cannot be adequately protected or vindicated, or the apprehended injury remedied or atoned for by damages, is in general sufficient to establish that the injury is irreparable for the purpose of exercising jurisdiction by way of injunction (see Attorney-General v. Hallett 3 ).

On the assumption that sec. 8A of the Act is invalid, I feel no doubt that the present case is one in which the injury apprehended by the plaintiffs from the continuance of the proceedings before the Board is irreparable, in the sense in which that word is used in the opinion quoted above. The plaintiffs are put in a dilemma. They may have a good answer to the charge made against them by the Minister, but they must either refuse to show cause before the Board or show cause. In the former event, they are liable to be deported by order of the Minister in the latter, they cannot reasonably expect to avoid

1(1899-1900) 176 U.S., at p. 80. 2(1899-1900) 176 U.S., at p. 81. 3(1847) 16 M. &W., 569, at p. 581. 32 CLR 530

disclosing the case which they propose to make in answer to the

charge of being concerned in a seditious enterprise. In these cir cumstances I think the Court is justified in allowing the question whether sec. 8A of the Act is valid to be raised on this application.

In considering the question whether sec. 8A of the Act is a valid

FLANAGAN enactment. it may be assumed that the power under which the right

to enact it is claimed is that contained in sec. 51 (XXVII.) of the Con stitution-to make laws with respect to immigration and emigration. The enactment, which is expressed in plain and unambiguous words, applies to any person not born in Australia who arrives in Australia, and provides for the deportation of such a person if within three years after his arrival he answers to any of the descriptions specified in clauses (a). (b), (c) and (d).

The main grounds on which the objection to the validity of this provision was founded were 1 that the section purports to vest in the Board portion of the judicial power of the Commonwealth, which by sec. 71 of the Constitution can only be exercised by the High Court and other Courts therein named 2 that the Common- wealth Parliament has no power to legislate for the exclusion or deportation of British subjects: (3) that the power to legislate with respect to immigration does not authorize legislation extending to persons coming into Australia without the intention of settling there (4) that the power referred to does not authorize legislation providing for the deportation of persons who have come into Aus- tralia by reason of events happening after their entry into Australia: (5) that the section purports to vest in the Minister or the Board portion of the executive power of the Commonwealth.

The first ground is substantially covered by the reason given for the refusal of the writ of prohibition applied for by the plaintiffs. The functions of the Minister and the Board under the section are plainly ministerial and not judicial.

The reasons given for the decision in Huddart, Parker &Co. Proprietary Ltd. v. Moorehead (1) completely cover this point (see particularly per O'Connor J. (2) ).

The second ground is covered by the observations of Griffith C.J.

1(1908-09) 8 C.L.R., 330. 2(1908-09) 8 C.L.R., at pp. 377-381. 32 CLR 531

and O'Connor J. and of my brother Isaacs in Potter v. Minahan 1. Griffith C.J. says 2 "There is no doubt that a British subject coming to the Commonwealth from another part of the British Dominions may be an immigrant within the meaning of the Con- stitution." And O'Connor J. says 3 Speaking generally, every person born within the British Dominions is a British subject and owes allegiance to the British Empire and obedience to its laws. Correlatively he is entitled to the benefit and protection of those laws, and is entitled, among other things. to entry and residence in any part of the King's Dominions except in SO far as that right has been modified or abolished by positive law. But the British Empire is subdivided into many communities, some of them endowed by Imperial statute with wide powers of self-government, including the power to make laws which, when duly passed and assented to by the Crown, will operate to exclude from their territories British subjects of other communities of the Empire. To this extent the British subject's right to enter freely into any part of the King's Dominions may be modified by statute law." My brother Isaacs savs (1) - 2< It is not, and cannot be, disputed that the right unre- stricted at common law of all British subjects wherever born outside Australia to enter the Commonwealth is made subject to the pro- visions of the Act. Where their physical or moral conditions would constitute them a public peril they are excluded, no allowance being made for their common nationality." See also Attorney-General for the Commonwealth v. Ah Sheung 5. In my opinion this ground of objection entirely fails.

The third ground raises the question whether "immigration" in sec. 51 (XXVII.) of the Constitution connotes entry into Australia with the intention of settling or residing there, or, on the other hand, extends to any entry into Australia of a person not born in Australia or not having previously had his home there, independently of any such intention on the part of the person entering. On this point also I have the guidance of observations made in cases decided by this Court. In Chia Gee v. Martin 6 Griffith C.J. said :- It was

1(1908) 7 C.L.R., 277. 2(1908) 7 C.L.R., at pp. 288-289. 3(1908) 7 C.L.R., at pp. 304-305. 5(1906) 4 C.L.R., 949, at p. 951. 6(1905) 3 C.L.R., at p. 654. 32 CLR 532

suggested that the term immigrant' in this Act means a person

who arrives in the Commonwealth with the intention of becoming a permanent resident.' The word may have that meaning in some contexts. When you are contrasting immigrants with members of a crew, that may be a convenient distinction to take, but the pur-

O'FLANAGAN pose of this Act is clearly to prevent entry into the Commonwealth;

the test is one to be applied on entry, and the question whether a man is an immigrant must be a matter capable of being determined then and there. If would be reducing the Act to a nullity if it were held that the test of whether a man were an immigrant or not was to be some intention in his mind, which intention the Commonwealth authorities might have no means of discovering." Barton and O'Connor JJ. concurred. It follows from this decision that in the opinion of the Court "immigration" in the Constitution must have been regarded as extending to mere entry into the Commonwealth; for otherwise the Act which made entry the test would have been invalid. To hold that absence of intention to settle or reside in the Commonwealth on the part of a person entering is sufficient to prevent his exclusion under a law with respect to immigration would, in my opinion, render nugatory for all practical purposes the power to exclude undesirable immigrants, which is admittedly con- ferred on the Commonwealth Parliament by sec. 51 (XXVII.) of the Constitution. The word "immigration" is undoubtedly capable of meaning entry with the intention of settling or becoming a resident, but it is also capable of the wider meaning which excludes the element of intention; and it was in this wider sense that it was used in the New South Wales Immigration Restriction Act 1898 (No. 3 of 1898) and in the West Australian Act of 1897, which were in force when the Con- stitution was drawn up and when it became law. I see no reason to doubt that it was used in the same sense in sec. 51 (XXVII.) of the Constitution, with the intention of conferring on the Commonwealth Parliament the full powers of exclusion of strangers theretofore exercised by the Parliaments of at least some of the States. This view is, I think, supported by reference to sec. 92 of the Constitution, which prohibits legislation directed to the prevention of inter-State migration. It can hardly have been intended to leave with a State Parliament power to prohibit the entry of strangers coming directly

32 CLR 533

from abroad and not intending to settle or reside in Australia, while H. C. OF depriving it of the power to exclude such persons if they entered through another State. In my opinion, the word immigration in sec. 51 (XXVII.) should not be construed in its narrower sense as con- noting the idea of intended settlement or residence, but rather as including the entry into Australia of any person who in SO entering is not coming home.

On the fourth ground of objection I understood counsel for the plaintiffs to concede, and I do not think it is possible to deny, that the Commonwealth Parliament had power to prohibit absolutely the entry into Australia of any person who is an "immigrant." If this be so, it seems to follow that Parliament may prescribe the conditions on which an "immigrant" may be permitted to enter. The condition imposed by sec. 8A is that if during a period of three years after his entry he shall not remain free from certain disabilities he shall be liable to be deported-that is to say, his entry is permitted on probation. If during that probationary period he proves to be unfit for certain reasons, which in the opinion of Parliament are sufficient. to become a member of the Australian community, his conditional permission to enter may be revoked and its revocation enforced by the only really effective method--deportation. The argument against the validity of the section was really founded on the hardship that might result from its enforcement, but this is irrelevant when, as here, the question is as to the extent of the power conferred on Parliament. The policy of the Act is a matter with which this Court is not concerned. In my opinion this ground of objection also fails.

The fifth ground is clearly untenable. If I understand the argu- ment in support of it, it would, if carried to its logical conclusion, deny to Parliament the power to provide by legislation for the per- formance of any ministerial act by any person but the Governor- General.

For these reasons I am of opinion that the application for injunction should be dismissed.

ISAACS J. We are called upon to decide questions of law which affect the administration of an Act of Parliament touching an

32 CLR 534

important principle of public policy as dealt with by the Legislature

In these circumstances I regard it as more than usually essential for the Court to bear in mind the attitude which every Court-and. if there be degrees in the matter, this Court in particular, charged as it is with very special constitutional functions-must preserve. I

O'FLANAGAN venture to quote. with respectful acquiescence, some words of a very

distinguished Judge, Lord Macnaghten, when dealing with a statute embodying public policy. In Vacher &amp;Sons v. London Society of Compositors 1 he said A judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret, That may be a matter for private judgment. The duty of the Court, and its only duty, is to expound the language of the Act in accord- ance with the settled rules of construction. It is, I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act of Parlia- ment, or to pass a covert censure on the Legislature." That great Judge rendered many signal services to the jurisprudence of the Empire. but by no means the least of these is his clear and authori- tative reminder to every judicial tribunal of an essential and funda- mental duty which it owes alike to itself and the community it serves. Very different considerations may sometimes come within the sphere of our judicial duty, when, for instance, the Executive itself assumes to make and act on regulations affecting individual liberty or property and claims for its own regulations the force of law. These considerations are entirely absent from this case. We have simply to consider the legality and effect of a clear and unambiguous enactment of Parliament itself and of executive action unquestionably authorized by the enactment, if only Parliament had power to make it.

In order to succeed, it is necessary for the applicants to make good two propositions: (1) that sec. 8A of the Immigration Act 1901-1920 is invalid and (2) that, assuming such invalidity, a writ of prohibition or quo warranto or certiorari or an injunction is a permissible remedy to protect them against the proceedings before the Board. The second proposition is a consideration that affects the jurisdiction of this Court. It must always be remembered that we are Judges, not legislators. In enforcing the law we must be

1(1913) A.C., 107, at p. 118. 32 CLR 535

the first to obey it. If it were necessary, we have as to this the direction of the Privy Council. In R. v. Hughes 1 Lord Chelmsford for the Judicial Committee said: " that the question of the power of a Court to proceed in a particular course of administering justice. was one of substance and not merely of form. And that. however con- venient or necessary a mode of proceeding for the redress of certain O wrongs might be, that consideration alone would not confer juris- diction on the Court to sanction its introduction."

We are therefore compelled to consider the second proposition first. The applicants are at once in a dilemma. If the section is not invalid, the application admittedly must be refused, because the basic contention fails. On the other hand, as the Board depends for its very existence on the section, it is plain that if the section is invalid there is in law no Board, but merely three gentlemen purporting to be a Board but whose conclusions have no legal force. In the latter case, is it permissible to grant prohibition or quo warranto or certiorari. or do the circumstances justify an injunction

1. Prohibition.-Taking prohibition first, which was the main remedy relied on, the principles of law are deeply rooted in pre- cedents and authorities; and these have recently, to an extent largely relevant to this case, been confirmed, restated and applied by the House of Lords in the case of Chifford and O'Sullivan 2 and by the King's Bench Division of the Irish Free State in R. v. Maguire 3. It is now beyond question that the writ of prohibition has its well- established limits. Only one of these limits need be referred to now. It is contained in the celebrated answer to the third objection found in the Articuli Cleri in these words "Prohibitions by law are to be granted at any time to restrain a Court to intermeddle with or execute anything which by law they ought not to hold plea of, and they are much mistaken that maintain the contrary." In the case of Chifford and O'Sullivan 4 the present Lord Chancellor, Viscount Cave, says: The writ" of prohibition "should only issue to a Court having some jurisdiction which it is attempting to exceed." He adopts 5 the passage in Short and Mellor's Crown Practice, 2nd

1(1866) L.R. 1 P.C., 81, at p. 91. 2(1921) 2 A.C., 570. 3(1923) 2 I.R., 58. 4(1921) 2 A.C., at pp. 582-583. 5(1921) 2 A.C., at p. 582. 32 CLR 536

OF A. ed., p. 252, as to the definition of the writ of prohibition "It

a judicial writ, issuing out of a Court of superior jurisdiction and directed to an inferior Court for the purpose of preventing the in- ferior from usurping a jurisdiction with which it was not legally vested, or, in other words, to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction."

One of the essentials of this application then is, that it must be " a Court " which is exceeding its jurisdiction; for the purpose of pro- hibition is to restrain the usurpation of the King's judicial power by inferior Courts. Is the Board a Court ? Clearly not. It is an adjunct of the executive power. Parliament, while providing that in certain circumstances the Minister may make an order for deporta- tion, has taken great care to safeguard the individual from any arbitrary exercise of that power, and secures him absolutely against a mere political use of it. This it does by interposing a Board presumably non-political, and, as to the chief member, necessarily non-political--between the opinion of the Minister when it is first formed and any action by him on that opinion, and by requiring the Chairman of the Board to be a Judge or a Police, Stipendiary or Special Magistrate, and, therefore, free from any influence of the Minister. The individual is thus afforded the opportunity of satis- fying the independent Board that the Minister's prima facie view is wrong. If the individual, by absenting himself (personally or by counsel), indicates that he has no reason to offer, the Minister has the power to make the order. If the individual appears, he has the opportunity to place the facts before the Board. If the Board does not recommend deportation, the Minister has no power to deport. If, however, the Board recommends deportation, then, and then only, the Minister may, if he thinks right, make the order, not as a judicial but as an executive, act. He is, however, not bound to accept any recommendation. Reasons may still appear sufficient to cause him to refrain from making the order. But it is he, and he alone, who can make any order which, on the construction of the section, imposes the obligation on an individual of departing from the Commonwealth. The Board's recommendation has no legal force whatever, beyond being a necessary safeguard against either the undue use of minis- terial power or even a mistaken opinion of a Minister when all the

32 CLR 537

facts are known. It is a guarantee provided by Parliament to the individual that he has a non-political and unprejudiced opinion on the merits before an adverse decision by the Executive is possible. The opinion of the Board is not a decision: the persons who are the subject of inquiry are not charged with any offence with a view to conviction: and the Board's recommendation, whether favourable or unfavourable to them, has not the character of a judicial deter- mination. Tested by the considerations I set out fully in Huddart, Parker &amp;Co.'s Case 1, the Board is not a Court and is not intended to be a Court. Prohibition is therefore quite inapplicable.

2. Quo Warranto.-This remedy is stated by Blackstone (3 Comm., p. 262) to be in the nature of a writ of right for the King against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim in order to determine the right. But it is well settled that this proceeding cannot be resorted to for the purpose of challenging the validity of the office itself. This is established by the case of R. v. Taylor 2. The law is stated very distinctly in Halsbury's Laws of England, vol. X., par. 270, and in High on Extraordinary Remedies, par. 670.

3. Certiorari.-Then - as to certiorari, the judgment of Fletcher- Moulton L.J. in R. v. Woodhouse 3 is clear that, though this remedy is not restricted to Courts, as is prohibition, but extends to judicial acts in a wider sense, yet there is always this limitation that the body to which a writ of certiorari is directed must have some right or duty to decide." As I have stated, the Board have no right or duty to "decide" anything. They may or may not recommend deporta- tion. but, such a recommendation, not being a decision. certiorari is inapplicable.

4. Injunction.-B consent, the claim for an injunction in the action

O Flanagan v. Macfarlane was proceeded with, SQ that, whatever possible remedy exists for any assumed invalid action or threatened action of the Board, relief might be granted. This is in accord with the very wide terms of sec. 32 of the Judiciary Act, which I regard as the dominant section in this connection. But even that section, wide as it is, limits the possible remedies to such as any of the

1(1908-09) 8 C.L.R., at pp. 382- 2(1840) 11 A. &amp;E., 949. 3(1906) 2 K.B., 501. 32 CLR 538

are entitled to in respect of any legal or equitable claim properly brought forward." The claim here is legal, not equit- able. It includes the right to personal liberty. No higher claim can be asserted short of that to life itself. I am disposed to give the largest scope to the section, consistent with its express terms, that I can in favour not only of liberty but of all rights invaded. But the law is clear that, to obtain an injunction to restrain an act alleged to infringe upon a right, it must be shown either that the act has infringed, or that, if persevered in, it is calculated to infringe, upon the right; that is, that the act if pursued to completion will be an invasion of the right relied on. It is not pretended that liberty or any other right has SO far been interfered with. The nature of the application is, as Mr. Watt very properly admitted, quia timet: that is, it is apprehended by the plaintiffs, in the first place, that their liberty will be interfered with. "But," said Lord Dunedin for the Privy Council in Attorney-General for Canada v. Ritchie Contracting and Supply Co. 1, " no one can obtain a quia timet order by merely saying Timeo'; he must aver and prove that what is going on is calculated to infringe his rights." In Attorney-General v. Man- chester Corporation 2 Chitty J. said: "The principle which I think may be properly and safely extracted from the quia timet authorities is, that the plaintiff must show a strong case of prob- ability that the apprehended mischief will, in fact, arise."

I assume on the part both of the Minister and the Board the utmost good faith and a conscientious desire to do their respective duties impartially. They have an unquestionable right to that assumption. On that basis the Board has to proceed in order to consider whether it ought or ought not to make a recommendation for deportation. In order to arrive at a conclusion on that point, it has to consider (inter alia) whether in fact the persons who are summoned before it are persons such as are described in par. (d) of sub-sec. 1 of sec. 8A. It has to be guided, of course, by the evidence as to that. If the Board recommends against deportation, there is no suggestion of any risk to liberty; for then the Minister is powerless. But there is, in my opinion, a real danger of an adverse recommenda- tion unless the plaintiffs submit to what, on the assumption of

1(1919) A.C., 999, at p. 1005. 2(1893) 2 Ch., 87, at p. 92. 32 CLR 539

illegality of the enactment, they are not bound to submit to, namely, C. examination and cross-examination. I shall elaborate this further a little later on. The alternative is: 'Either attend under com- pulsion, or tacitly confirm by absence whatever evidence is adduced against you." I think, therefore, there is a technical case of attempted wrong made out, once we regard the Board as unauthor- ized. But still I do not think a case is established for interposition by injunction. The Court is not entitled to apply the obstacle of injunction to the contemplated action of a co-ordinate branch of the Government unless not only a case of clear illegality, proved to be calculated to result in a clear injury, is established, but also it is shown that by no other means can injury be averted or sufficiently compensated for. Where that is shown, then, by principles of both British jurisprudence (see Rogers v. Rajendro Dutt 1 and Eastern Trust Co. v. McKenzie, Mann &amp;Co. 2 ) and of American juris- prudence (see Western Union Telegraph Co. v. Andrews 3 ), injunc- tion is a well-recognized remedy against the individuals purporting to act as agents of the Government.

So far, all that is sought by the Executive is the advice or opinion of the Board, not any effective action effective action may or may not be possible even if possible, it may or may not occur. If no other consideration presented itself than the apprehended danger of deportation, to intervene now by injunction would, on legal principles and on principles of constitutional right, be unjustifiable. But another consideration does present itself, namely, that there is pending a criminal prosecution against the plaintiffs instituted at the instance of the State of New South Wales under the Crimes Act 1914-1915 as amended by the War Pre- cautions Act Repeal Act 1920. That prosecution is for alleged sedition. It was mutually admitted at the Bar that substantially the same facts are common to both the criminal proceeding and the deportation proceeding. Thus an entirely new factor is introduced into the case. Now, although the Commonwealth, in any lawful proceeding it thinks fit by its appropriate organ to pursue, cannot be obstructed by any State proceeding, it may be necessary, when

1(1859-60) 13 Moo. P.C.C., 209, at 2(1915) A.C., 750, at p. 760. p. 236. 3(1909-10) 216 U.S., 165. 32 CLR 540

the legality of the Commonwealth proceeding is challenged as

prejudicial to an individual, to consider his actual position, even though created by a State proceeding, in order to determine whether he is in fact prejudiced or not by the Commonwealth proceeding.

I am of opinion that though, apart from the criminal proceedings

O'FLANAGAN now pending, no sufficient case is proved for the intervention of this

O'KELLY. Court by injunction, vet sufficient is proved, once the element of

criminal prosecution is introduced, provided the deportation pro- ceedings are shown to be unwarranted by law. While the plaintiffs,

SO far as any order of deportation itself is concerned, could be adequately protected if needful by habeas corpus, no remedy-not even habeas corpus-could adequately compensate them for the prac- tical compulsion either to disclose their case before the Board or to risk, as an alternative, an order for deportation which, even if set aside for illegality, would represent a finding of facts or admission of facts seriously pertinent to the criminal charge. This practical compulsion in SO weighty a matter is in itself, in my opinion, an abridgment of the common law right of accused persons. On this ground only I think that, assuming sec. 8A to be illegal (as I have up to the present assumed) and, therefore, not a justification for the course proposed, there would be a proper case for an injunction.

5. Power to grant Injunction.--It is very desirable in the circum- stances to state with some degree of explicitness why, in my opinion, the remedy of injunction would be properly granted on the assump- tion always that the enactment now challenged was found to be invalid. There are several important features in this case; but I consider that the clear assertion of the power of a Court to protect individual rights of liberty from unauthorized violation, and especially from such violation when attempted by illegal executive action with all the administrative force of the nation behind it, is by far the most important. The concrete question raised by this phase of the matter may be very tersely stated thus "Has a competent Court power to prevent by prohibitory injunction unauthorized persons from committing an illegal act calculated to imperil in advance the liberty of an accused person, namely, the holding of a public inquiry with a view to a public pronouncement as to his committing the very act with which he stands charged before the

32 CLR 541

King's Courts ? " The power seems to me self-evident. If the act were consummated, no one could, in the face of the numerous authorities criminal and civil, doubt that punishment and repression would follow if the offenders were subject to the jurisdiction of the Supreme Court of New South Wales. It would be a contempt of the King's Courts, and an offence against public justice. Nor could it be controverted that in a pending action a party can obtain from the Court seised of the cause an injunction to restrain the publication of matter calculated to prejudice the trial. Has an accused person whose liberty or life is at stake in a pending prosecu- tion no means of preventing what might well be an irreparable injury by invoking the interposition of a competent Court ? Is it the law that the wrong must first be done, the fountain of justice poisoned, the accused convicted, and then, as it is conceded, that the law gives a remedy by process of contempt or indictment or habeas corpus ? A remedy for what ? For an irreparable injury that can never be undone or compensated for-the loss of liberty, of reputation, perhaps of life itself. Unless constrained by the most explicit and commanding authority I could not accept that as the law. Even beyond these considerations it must be remembered that a Board may not sit in New South Wales or do anything there which would give the State Courts jurisdiction for contempt or in any other way. What possible remedy, then, either before or after publication or before or after trial, could an accused person have, if not by action in the Federal Court or in some other Court having jurisdiction over the persons offending or threatening to offend, as for a wrong threatened or done ? This, however, only emphasizes the appropriateness of the remedy if there be a right invaded or threatened, as I am of opinion there is on the assumption that the enactment is invalid.

There would on the facts before us be a clear invasion of the elemen- tary right of every accused person to a fair and impartial trial. That such a right exists as a personal right seems to me SO deeply rooted in our system of law and SO elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It is only a variant of the maxim that every man is entitled to his personal liberty

32 CLR 542

A. except SO far as that is abridged by a due administration of the law.

Every conviction set aside, every new criminal trial ordered. are mere exemplifications of this fundamental principle. And if the right be admitted, it would be an empty thing, unless the law adequately protected it. It seems necessary, however, to adduce authority. Fortunately it is clear and weighty.

That an invasion of personal liberty or personal reputation unjustified by law is a tort for which, when accomplished, an action for damages, or in proper cases an injunction, is a remedy will be readily conceded. What constitutes such a tort ? It may be that the precise form of attempted violation that has occurred in the present case-on the assumption made-has not previously arisen. But that is no answer. As was observed by Pratt C.J. in a classical passage in Chapman v. Pickersgill 1, "this action is for a tort: torts are infinitely various, not limited or confined, for there is nothing in nature but may be made an instrument of mischief."

A modern confirmation is found in the words of Lord Herschell in Allen v. Flood 2 :-"I should be the last to suggest that the fact that there was no precedent was in all cases conclusive against the right to maintain an action. It is the function of the Courts to apply established legal principles to the changing circumstances and conditions of human life." The novel conditions of our Con- stitution, leaving diverse and concurrent powers in Commonwealth and State in respect of the same facts, have led to the present situation. And SO it is our duty to see how far deeply-rooted prin- ciples apply to maintain the first essentials of justice.

If, therefore, in principle, the plaintiffs have a legal right, and if without legal warrant, that right is invaded, then it matters not that the method of invasion is novel, a legal wrong is done (Rogers V. Rajendro Dutt 3 ). If that be so, if the plaintiff have a legal right, then, to borrow the words of Lord Holt in Ashby v. White 4, "he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it and indeed it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal." Perhaps the

1(1762) 2 Wils. K.B., 145. 2(1898) A.C., 1, at pp. 127-128. 3(1859-60) 13 Moo. P.C.C., at p. 241. 4(1703) 2 Ld. Raym., 938, at p. 953. 32 CLR 543

32 C.L.R.]

OF AUSTRALIA. most apposite reference to begin with is Duncan v. Thwaites 1. H. That was an action for libel, but the declaration alleged (inter alia) that at the time of publication the plaintiff was under a pending charge of indecent assault and not yet indicted, and that the defen- dant published the libel to hinder and obstruct the course of justice and to prevent the plaintiff having a fair and impartial trial. The O'FLANAGAN libel alleged consisted of the preliminary proceedings before the justice on the criminal charge. Modern circumstances, no doubt, as pointed out in Usill v. Hales 2, materially affect the right to publish such lawful preliminary examinations. But that is beside the point now at issue. We have to assume for present purposes that the publication is unlawful. And, as that is the assumption made by Lord Tenterden (then Abbott L.C.J.) in Duncan v. Thwaites, in the passage I am about to quote, the opinion is of high authority. The Lord Chief Justice said 3: "I take it to be a general rule that a party who sustains a special and particular injury by an act, which is unlawful on the ground of public injury, may maintain an action for his own special injury and if publications like the present tend to prevent or impede the due administration of justice towards persons accused of offences, it is impossible to say that the individual whose trial may be affected by them, does not sustain a special and peculiar injury even in that view." That generalization is, as will be observed, entirely independent of the question whether the publication complained of is a libel or not. In Lewis v. Levy 4 it was pointed out by Lord Campbell C.J., referring to Duncan V. Thwaites that "the actual pendency of a prosecution was a main ingredient in that decision." The two cases were distinguished by Lord Campbell, who expressed no dissent from the general proposition enunciated by Lord Tenterden or its application to the particular case. The recent case of Neville v. London "Express" Newspaper Ltd. 5, though dealing with "maintenance," appears to me to involve the correctness of the general proposition of Lord Tenterden. The learned Lords differed on two points; but all of them agreed, as I understand the judgments on this, that what- ever was unlawful "maintenance" was an offence, and, if it caused

1(1824) 3 B. &amp;C., 556, at p. 953. 2(1878) 3 C.P.D., 319, at p. 325. 3(1824) 3 B. &amp;C., at p. 584. 4(1858) E. B. &amp;E., 537, at p. 562. 5(1919) A.C., 368. 32 CLR 544

damage, was actionable at common law. Lord Finlay L.C. said

1 "It is an action in respect of an offence which causes damage to the plaintiff." Lord Atkinson said 2: "Every subject has a legal right not to be harried in Courts of Justice by actions such as

I have mentioned." Though his Lordship thought damage was

O'FLANAGAN imported by law, the statement quoted is valuable on the point in

O'KELLY. hand. Lord Shaw said 3 " What in short is to be accomplished

is the impartial administration to poor and rich alike." His Lord- ship also says 4 :- This is a civil suit. I am of opinion, my Lords, that in any civil action in respect of maintenance it is neces- sary to establish these two things-namely, (1) that the maintenance was unlawful in the sense above described both in statutes and in text-books that is to say, that it was to the hindrance or disturb- ance of common right, to the delay or distortion or withholding of justice; and (2) that the plaintiff in an action of maintenance shall have suffered actual injury by reason thereof, for which injury alone and to the extent of it is the maintenance answerable." Here, if the act threatened be tortious, there is, of course, no need of special damage. Again Lord Shaw says 5 :----- What was it that had been done unlawfully, what was it that was in contempt of the Queen ? It was that an action of debt had been maintained with these two essential qualities (1) 'to the manifest retardation and disturbance of justice; and (2) to the serious loss of the foresaid' plaintiff." Lord Phillimore 6 referred to the fact that in the early days "the ordinary subject of the King found great difficulty in procuring a fair trial when his adversary was in some privileged position." He also says "Embracery and subornation of perjury were some of the means used " to defeat justice. He adds 7 "Maintenance is on a par with champerty, conspiracy and embracery. The doctrine was established to prevent injustice." I may here observe that the common law gave a civil action for maintenance and also for embracery (see Hawkins' Pleas of the Crown, vol. I., p. 467). It would seem strange that the doctrine of civil action for maintenance and embracery, which, as Lord Phillimore says,

1(1919) A.C., at p. 380. 2(1919) A.C., at p. 405. 3(1919) A.C., at p. 410. 4(1919) A.C., at p. 415. 5(1919) A.C., at pp. 416-417. 6(1919) A.C., at p. 427. 7(1919) A.C., at p. 433. 32 CLR 545

was established to prevent injustice," fails where injustice needs H. most of all to be prevented. Even SO early as Charles I.'s time two Judges of the King's Bench thought an action on the case lay against a stranger who was not one of the jury but caused himself to be sworn in as a juryman and gave a verdict adverse to the party complaining (Sir Edward Powell's Case 1 ). The case of a witness disobeying a subpoena is much in point. By a number of cases it has been well settled (1) that the breach of duty in that case arises, not out of any contract with the party causing the subpoena to be issued, but for disobeying the order of a com- petent authority (Couling v. Coxe 2; Collins v. Godefroy 3; (2) that this gives rise to an obligation to the Court to be present at each particular moment the Court is sitting, and an obligation to the party to be there when he is wanted and is called upon ad testi- ficandum (Lamont v. Crook 4; (3) that failure to attend is a contempt (Mullett v. Hunt 5 ) for which he could be attached (Mullett v.Hunt 6 and R. v. Sloman 7; (4) that failure to attend was actionable if injury be shown (Mullett v. Hunt and Horne v. Smith 8 ); (5) that the plaintiff in such an action need not show that the witness was indispensable, but only material (Mullett v. Hunt). That class of cases rests, as it seems to me, on an acknowledged basis that the law, for the advancement and preservation of justice, recognizes the legal right of every litigant to have the litigation proceed in due course of law, and recognizes, as a means to that end, a corresponding duty on every other person not to do anything the law forbids, or to fail to do anything the law commands him to do; and, further, that, besides whatever public sanction exists for his breach of duty, an action for damages lies where actual special prejudice is shown. There is one other high authority to which I ought to refer now. It is R. v. Fisher 9. Again we have to bear in mind the modern tendency as to privileged publications; but again I have to observe that the principle of the statement to be quoted is unaffected. The defendants were indicted for libel on

1(1642) Mar., 80. 2(1848) 6 C.B., 703, at p. 719. 3(1831) 1 B. &amp;Ad., 950. 4(1840) 6 M. &amp;W., 615. 5(1833) 1 Cr. &amp;M., 752, at p. 758. 6(1833) ] Cr. &amp;M., at p. 764. 7(1832) 1 Dowl. P.C., 618. 8(1815) 6 Taunt., 9. 9(1811) 2 Camp., 563. 32 CLR 546

a man standing charged with assaulting a female, and Lord Ellen-

borough said 1 :- The necessary tendency of the libel was, in the language of the indictment, to traduce and defame the prosecutor, and to prejudice him in the minds of his countrymen, and to cause it to be believed that he was guilty of the assault laid to his charge,

O'FLANAGAN and to deprive him of the benefit of an impartial trial. If so, the law

infers that such was the intention of the defendants in publishing it, and they must answer for the injury they have there done to the prose- cutor individually, and to the community of which he is a member." The case was a criminal case, but the point is that it recognizes an in- dividual injury to the prosecutor for which the law exacts punish- ment. The ground on which the individual in a case like this is entitled to civil redress is that he has been put in danger to lose his life or liberty. That is brought out in several cases, The case of Chapman v. Pickersgill 2 was a case of maliciously instituting bankruptcy proceedings. It was in 1762, and was novel then. Even down to the year 1883 the true principle of the tort was not fully developed. In that year a very eminent Court of Appeal decided the case of Quartz Hill Consolidated Gold Mining Co. V Eyre 3, where a petition to wind up a company had been pre- sented and an action was brought for doing SO maliciously and with- out probable cause. An objection was taken that no such action would lie under any circumstances. As to this point, Brett M.R. and Bowen L.J., founding themselves on the basic principles enun- ciated by Holt C.J. in Savile v. Roberts 4, held that such an action would lie in certain circumstances. Lord Holt had laid down three positions where the law would support an action for malicious prosecution, namely (1) "The damage to a man's fame, as if the matter whereof he is accused be scandalous"; (2) 'where a man is put in danger to lose his life, or limb, or liberty" (3) 'damage to a man's property." The Court of Appeal held that, as in the case before them damage to reputation was from the nature of the petition involved, the action would lie without proof of special damage, because the law imported damage. The case is instructive. An action for malicious prosecution or maliciously presenting a petition

1(1811) 2 Camp., at p. 572. 2(1762) 2 Wils. K.B., 145. 3(1883) 11 Q.B.D., 674. 4(1698) 1 Ld. Raym., 374. 32 CLR 547

of bankruptcy or to wind up are proceedings before a duly con- stituted Court. Prima facie, therefore, they are competent and justifiable proceedings, which will meet in that Court with their just determination. But, if "malicious and without reasonable and prohable cause," the protection of the law is taken away and the act is reduced to one which has to be judged of as tortious or not O'FLANAGAN on ordinary grounds. So judging by the petition in the case cited, the Court said that the necessary proceedings before the hearing involved publication to the world of the allegations of the petitioner, and that those allegations involved an injury to reputation, just as any ordinary libel does, before the person attacked had the oppor- tunity to meet and disprove it in open Court. Bowen L.J. said 1: "I do not see how a petition to wind up a company can presented and advertised in the newspapers without striking a blow at its" (the company's) "credit." Brett M.R. said 2: "The very touchstone of this point is that the petition to wind up is by force of law made public before the company can defend itself against the imputations made against it." The principle of that decision was sustained, but on account of the varying circumstances a con- verse decision was arrived at, by an equally eminent Court, in Wiffen V. Barley and Romford Urban Council 3. Buckley L.J. (as he then was) held that the proceedings in that case, a complaint under the Health Act, involved neither (1) damage to fame, (2) danger of imprisonment nor (3) damage to property. After quot- ing Lord Holt's test, and adopting Lord Justice Bowen's words, the learned Lord Justice said 4 "So the exception of civil proceed- ings 11 " (that is, from being actionable), " so far as they are excepted, depends, not upon any essential difference between civil and criminal proceedings, but upon the fact that in civil proceedings the poison and the antidote are presented simultaneously." Phillimore L.J. and Pickford L.J. agreed.

The principle I extract from those cases is that any unjustifiable publication attacking a man's reputation or endangering his liberty is an actionable tort without proof of special damage, It may be said of the threatened action of the Board, as appears from the

1(1883) 11 Q.B.D., at p. 693. 2(1883) 11 Q.B.D., at p. 685. 3(1915) 1 K.B., 600. 4(1915) 1 K.B., at p. 607. 32 CLR 548

notification of the Minister, practically what Bowen L.J. and Brett

M.R. said of the publication of the petitioner in the passages above quoted. Assuming the invalidity of the enactment, it is not con- tested that if an unauthorized body of persons set up by the Adminis- tration were prior to the trial to summon persons accused of crime,

O'FLANAGAN whether murder or sedition or any other crime you please, and

were to insist on investigating the facts and publishing their con- clusions, even though inviting the accused to offer what explanation they pleased, it would be a contempt of Court if done within the jurisdiction of the Court and would be sternly punished.

But is the remedy confined to proceedings for contempt; and only after the damage has been done ? The damage would be irreparable. No punishment of the offender, no money compensation, would repair the damage done by prejudicially affecting the result of the trial on which the liberty, and perhaps the life, of the accused depended. Has he no personal rights to prevent this danger ? In my opinion he has, as I have said. I think the cases already cited necessarily involve it. But there is further authority. In R. v. Editor of Daily Mail; Ex parte Farnsworth 1, the King's Bench Division made absolute a writ of attachment against the editor of a newspaper for publishing the sentence of a Court Martial before it was duly confirmed and promulgated. The central point of the case is that it was recognized that the accused had a right to have the confirming officer's decision-which had yet to be given --uninfluenced by the publication of the determination of the Court Martial. Lord Coleridge J. said 2: " To make public that which should be secret may be seriously to interfere with the free action of that officer." As to one portion of the publication, namely, defamatory statements, Lord Coleridge J. said: "Here the published statements which are defamatory of the accused, unconnected in some instances with the crime alleged, unproved and possibly false, might easily tend to prejudice his case, and would be calculated seriously to thwart and interfere with the due administration of justice." Avory J. quotes Bowen L.J.'s reference to "a fair and impartial trial" and Salter J. says the Act does not, in his opinion, "take away the

1(1921) 2 K.B., 733. 2(1921) 2 K.B., at p. 749. 32 CLR 549

right of an accused person, who fears that his fair trial may be pre- judiced, of applying to this Court by way of a rule nisi."

It is true the order nisi is for an attachment for possible injury already done, but the point is that there is recognized a personal right to a remedy of the accused who " fears that his fair trial may be prejudiced." That seems to me to connote such a legal right to a fair trial as is entitled to whatever protection the Court in the circumstances finds necessary. Lord Hardwicke in Anon. 1 said his reason for committing for publishing an advertisement as to pending proceedings was " not only for the sake of the party injured by such advertisement, but for sake of the public proceedings in this Court." "

The final and paramount consideration in all cases is that empha- sized in Scott v. Scott 2, namely, " to do justice " (Viscount Haldane L.C.). All other considerations are means to that end. They are ancillary principles and rules. Some of them are SO deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn 3 termed "the parties entitled to justice." Lord Atkinson 4 spoke of contempts "prejudicing the case of any litigant in any pending suit." The same learned Lord 5 contemplated the possibility of a given con- tempt as capable of being viewed in either of two aspects " the one criminal and the other simply tortious." Lord Shaw 6 referred to "the elementary principle that an accused person is not bound to incriminate himself." His Lordship said 7 that the order of Bargrave Deane J., ordering a cause to be heard in camera, was

an exercise of judicial power violating the freedom of Mrs. Scott in the exercise of those elementary and constitutional rights which she possessed, and in suppression of the security which by our Con- stitution has been found to be best guaranteed by the open adminis- tration of justice." "The elementary principle that an accused

1(1754) 2 Ves., 520. 2(1913) A.C., 417, at p. 437. 3(1913) A.C., at p. 446. 4(1913) A.C., at p. 455. 5(1913) A.C., at p. 464. 6(1913) A.C., at p. 469. 7(1913) A.C., at p. 484. 32 CLR 550

person is not bound to incriminate himself " is of the highest import ance. For, while it is true that the summons to attend the Board's inquiry would give the persons summoned an opportunity to con- test the allegations against them, it would only afford that oppor- tunity at the cost of surrendering the elementary right just adverted to. The alternative presented amounts to practical coercion (see Maskell v. Horner 1, and per Hawkins J. in Allen v. Flood 2 ) Absence or silence preserved would go a considerable way in strengthening any affirmative evidence before the Board against the plaintiffs, while any statement on their part would be a forced abandonment of their right of maintaining silence on the subject of the prosecution. If that alternative be not justified by law, it is, in my opinion, a violation of the right of liberty. I understand by all these references to "rights," real active rights, legal rights, which find appropriate remedies in the Courts, according to the stage and the circumstances in which redress is sought. In some circumstances habeas corpus may be the appropriate remedy, in others committal or attachment, in others damages; but wherever damages are possible as compensatory, injunction is possible as preventive. The right to injunction does not and never did depend on property (Prince Albert v. Strange 3 Pollard v. Photographic Co. 4 ). There were at one time reasons why from one cause or another the English Courts had a more or less limited power of granting injunctions, reasons which have now disappeared, as explained by an unusually powerful Court of Appeal in Bonnard V. Perryman 5. All this aggregation of power, and perhaps more, is concentrated in sec. 32 of the Judiciary Act already cited. On principle, as Lord Watson said in White v. Mellin 6, " damages and injunction are merely two different forms of remedy against the same wrong." If damage is irreparable in the sense that pecuniary compensation would be inadequate protection, injunction may, and in the absence of countervailing circumstances will, be granted to protect a legal right (Stollmeyer v. Trinidad Lake Petroleum Co. 7 ), affirming Lord Kingsdown in Imperial Gas Light and Coke

1(1915) 3 K.B., 106. 2(1898) A.C., at pp. 17-18. 3(1849) 1 Mac. &amp;G., 25. 4(1888) 40 Ch. D., 345, at p. 354. 5(1891) 2 Ch., 269, at pp. 282 6(1895) A.C., 154, at p. 167. 7(1918) A.C., 485, at p. 499. 32 CLR 551

Co. v. Broadbent 1 ).

It need hardly be said that an interlocutory injunction may be refused where finally an injunction might be granted at the hearing (Bonnard v. Perryman 2 ). That is really beside the real question here, though cases on interlocutory injunc- tions sometimes obscure a point like the present.

The real consideration which a Court would have regard to when O'FLANAGAN once a position like the present is established is the substantial imminence of irreparable damage, regard being had to the serious- ness of the consequences should that damage occur. Lord Brougham L.C., in Earl of Ripon v. Hobart 3, used language equally appro- priate to a case like the present. He said For, in matters of this description, the law cannot make over-nice distinctions, and refuse the relief merely because there is a bare possibility that the evil may be avoided. Proceeding upon practical views of human affairs, the law will guard against risks which are SO imminent that no prudent person would incur them, although they do not amount to absolute certainty of damage. Nay, it will go further, according to the same practical and rational view, and, balancing the mag- nitude of the evil against the chances of its occurrence, it will even provide against a somewhat less imminent probability in cases where the mischief, should it be done, would be vast and overwhelming." That there may be other remedies for other aspects of what is complained of is no reason for refusing personal remedies for the personal wrong (see Lord Brougham in Ferguson v. Kinnoull 4 ).

I have elaborated this part of my opinion because I consider that the clear assertion of the power of a Court to protect individual rights of liberty from unauthorized violation, particularly when asserted in the name of the law, is, even among the many important features of this case, by far the most important. The serious effect that, in my opinion, the action of the Board would most assuredly have had upon any subsequent trial of the plaintiffs would have been sufficient to have called for the restraining hand of this Court, if it could have been shown that the Board's action was not supported by a valid enactment of the Commonwealth Parliament.

6. Validity of Sec. 8A.-The final question then is whether sec. 8A

1(1859) 7 H.L.C., 600, at p. 612. 2(1891) 2 Ch., 269. 3(1834) 3 Myl. &amp;K., 169, at p. 176. 4(1842) 9 Cl. &amp;Fin., 251, at p. 297. 32 CLR 552

is valid or not. This is a necessary question, because there can be

no controversy that the section includes in its terms the plaintiffs, since they are persons " not born in Australia." Validity was challenged on various grounds, which are substantially reducible to three. The relevant power in the Constitution to support the legis- lation is par. XXVII. of sec. 51. By that enactment it is provided that O'KELLY. "the Parliament shall, subject to this Constitution, have power to

make laws for the peace, order, and good government of the Common- wealth, with respect to (XXVII.) immigration and emigration." The provisions of sec. 8A of the Act, it was said, assuming them on proper construction to apply to British subjects (not Australian born)- and the contrary was only SO faintly suggested, that it does not call for further attention-were unwarranted by the Constitution, first because the power did not extend to British subjects, next because the power did not in any case extend beyond the very act of immi- grating into or emigrating from the Commonwealth, and lastly because the power did not extend to persons who did not enter the Commonwealth for the purpose of "settling" there either per- manently or for some period vaguely suggested but apparently of prolonged and indefinite duration-in other words, to persons euphemistically termed 'visitors."

1(1903) A.C., 355, at p. 363. 2(1918) A.C., 591, at p. 603. 3(1882) 10 Q.B.D., 309, at p. 321. 4(1885) 16 L.R. Ir., 150. 5(1852) 18 Q.B., 647, at p. 660, 6(1908) 6 C.L.R., 466. 7(1904) C.L.R., 139. 32 CLR 570

OF A. Board is not a judicial tribunal to try these men in any sense for the

offence and in my opinion, therefore, the rules nisi for prohibition must be discharged.

The alternative remedies suggested by the rules are obviously inappropriate (quo warranto, relief in the nature of quo warranto,

O'FLANAGAN certiorari).

As to Injunction.-But at the conclusion of the arguments as to the rules nisi, counsel for the two accused moved in an action, No. 24 of 1923-with the consent of counsel for the Board-for an injunction restraining the members of the Board from proceeding further with the inquiry under sec. 8A. The question is, assuming the section to be invalid, should an injunction be granted on this motion.

The only relief sought in this action is 1 a declaration that the members of the Board have no authority to proceed further as a Board, and 2 an injunction restraining them from doing SO. There is no claim for damages.

In the first place I see no cause of action, legal or equitable, against the Board. There is no actionable wrong done to the plaintiffs by the Board. It is admitted that there would be no ground for injunction unless the prosecution under the Crimes Act in the New South Wales Court were pending; but it is said that the plaintiffs are put in a dilemma, inasmuch as this inquiry compels them either to disclose their case before the Board, or to risk a de facto order for deportation, which would injure them on the criminal prosecution. But to be put in such a dilemma is not to have a cause of action (see per Bowen L.J., Mogul Steamship Co. v. McGregor, Gow &amp;Co. (1) ). In North London Railway Co. v. Great Northern Railway Co. (2) the defend ant, as in pursuance of an agreement to refer differences with the plaintiff to arbitration, appointed an arbitrator, and gave notice to the plaintiff to do likewise. The plaintiff was in a dilemma. Its contention was that the agreement for arbitration did not apply to the matter; but if the plaintiff should fail to appoint, the award might be made by the defendant's arbitrator alone. The plaintiff applied by motion for an injunction restraining the defendant from proceed- ing with the arbitration as it would be futile and vexatious but the Court of Appeal discharged the injunction granted by a Divisional

1(1889) 23 Q.B.D., 598, at p. 613. 2(1883) 11 Q.B.D., 30. 32 CLR 571

Court, saying that there was no wrong, legal or equitable, done by the defendant. "Of course," said Cotton, L.J. 1, "it is very incon- venient to any one to be brought before a tribunal which has no juris- diction, but does that give a right to the High Court to interfere ? " It is what is called a case of damnum absque injuria-loss without an actionable wrong done by the defendant to the plaintiff. To O'FLANAGAN found a valid action, there must be injury as well as damage (Day V. Brownrigg 2 ). A's property may be lessened in value by B's building a wall in front of it; but it does not follow that A has a cause of action against B. A tradesman often suffers in credit by an action brought against him, or by an application to adjudicate him bank- rupt; but he has no cause of action unless the action has been brought, or the application made, maliciously and without reasonable and probable cause. No action lies against a person for bringing an action or proceeding unless there be malice and no reasonable or probable cause. It is not here alleged or pretended that the mem- bers of the Board are acting on such a motive they are merely carrying out the words of sec. 8A on the natural assumption that the section is valid. The argument of dilemma is rather a reflection on the Sydney bench of magistrates in postponing the trial until the inquiry should be over-a reflection which I have sought to avoid. But the Board has done nothing censurable the members have no control over the prosecution. It is said that the Court has power to protect rights of liberty from unauthorized violation. No doubt it has; but the Board is not violating any such rights. It is merely making an inquiry, leaving it to the law to say whether the recom- mendation will be effective or not. Of course, the existence of a cause of action against the defendants must be tested on the facts as they stood on 22nd May last, the date of the action; we must ignore anything that has since happened.

But, even if there were a cause of action against the members of the Board, there is certainly nothing here to justify an interlocutory injunction. There is no such irreparable injury or urgency as justifies a Court in interfering by interlocutory order before the action has been tried. If, as has to be assumed for the present purpose, sec. 8A is invalid, the plaintiffs' rights to liberty are not being violated

1(1883) 11 Q.B.D., at p. 38. 2(1878) 10 Ch. D., 294. 32 CLR 572

by the inquiry; the inquiry will be futile. If the inquiry end in a

recommendation against deportation, no harm is done - the Minister cannot deport. If the inquiry end in a recommendation to deport, and if the Minister choose to make an order for deportation, and pending deportation, keep these men in custody, there is ample and speedy remedy by writ of habeas corpus. There is a further remedy O'KELLY. by an action for false imprisonment. What is done cannot be

undone-the Minister already on 7th May made his orders reciting that he is satisfied that the plaintiffs were guilty of the offence charged, and referring it to the Board to inquire whether they should not be deported. The plaintiffs have only to wait until the Minister make an order for deportation meantime, a futile Board is (on the assumption) making a futile inquiry. Nor is it the practice of the Court to grant an interlocutory injunction when the damage done pending the trial of the action would be nominal; such an injunction is a substitute for damages between the writ and the trial (Read V Wotton 1 ), and it is significant that in this proceeding no damages at all are claimed. The object of an interlocutory injunction is to keep matters in statu quo till the trial of the action, when what the defendant is doing will defeat the very object of the action but there can be no such defeating here. It is a mistake to treat an interlocutory injunction as a matter of course, even where the plaintiff seems to have merits. In England, under sec. 25 (8) of the Judicature Act 1873, the Court can grant an interlocutory injune tion " in all cases in which it shall appear to the Court to be just or convenient"; but, notwithstanding the amplitude of this dis- cretion, the Courts will discharge an order for an injunction if made on insufficient grounds (cf. Bonnard v. Perryman 2 ).

For these reasons, I concurred in the refusal of the application made; but I hope that I shall not be understood as implying that there is a power to grant even at the hearing an injunction in such a case as this. Unless the power is conferred by sec. 31, 32 OF 80 of our Judiciary Act, under the general words of those sections, I should say that there is no such power; but, as the effect of those sections has not been fully considered in argument, I withhold my final opinion on this point.

1(1893) 2 Ch., 171. 2(1891) 2 Ch., at pp. 284-285. 32 CLR 573

The old doctrine was that injunctions must be based on property- H. OF some infringement of rights of property (Macaulay v. Shackell 1 Sarby v. Easterbrook 2 ). In modern practice, however, the power to grant an injunction has been applied to injury to the plaintiff's trade, to breach of contract or of confidence, to cases which come under some distinctive head of equitable jurisdiction-such as an O'FLANAGAN action to set aside an agreement (Prince Albert v. Strange 3; O'KELLY. Pollard v. Photographic Co. 4 Kitts v. Moore 5 ). Certain Judges have said that an injunction may be issued for a merely personal libel. The late Jessel M.R., in particular, took a very wide conception of his powers but he explains his reasons clearly in Beddow V. Beddow 6. He said 7: Having regard to these two Acts of Parlia- ment 22 (the Common Law Procedure Act 1854 and the Judicature Act 1873. sec. 25 8 ), "I have unlimited power to grant an injunction in any case where it would be right or just to do so." The Master of the Rolls reasons that if, under the English Judicature Act, sub- sec. 8 of sec. 25, an injunction can be granted on interlocutory application if it shall appear to the Court to be just or convenient," it can be done at the trial of the action on the principle of omne majus continet in se minus-the greater includes the less. But, whatever be the force of this reasoning, the Court of Appeal in England, in a later case, held that sec. 25 (8) of the Judicature Act 1873 does not enlarge jurisdiction, it only affects procedure (North London Railway Co. v. Great Northern Railway Co. (8) ).

I shall not labour this point further; but I may point out that in the United States it is well settled that the mere fact that an Act is inconstitutional does not entitle a party to relief by injunction against proceeding under the Act (Cruickshank v. Bidwell 9; Boisé Artesian Hot and Cold Water Co. v. Boisé City 10 ). See also Attorney-General v. Birmingham, Tame, and Rea District Drainage Board 11 ).

Validity of Sec. 8A. In my opinion, therefore, the injunction sought ought to be refused even if the section is invalid; and, under

1(1827) 1 Bli. (N.S.), 96, at p. 127. 2(1878) 3 C.P.D., 339. 3(1849) 1 Mac. &amp;G., 25. 4(1888) 40 Ch. D., 345. 5(1895) 1 Q.B., 253. 6(1878) 9 Ch. D., 89. 7(1878) 9 Ch. D., at p. 93. 8(1883) 11 Q.B.D., 30. 9(1899-1900) 176 U.S., 73. 10(1909) 213 U.S., 276. 11(1910) 1 Ch., 48. 32 CLR 574

ordinary circumstances, it would not be fitting that I should pro-

nounce as to the validity or invalidity of the section. The practice of the Court is to assume that Acts of Parliament are valid until we find that justice cannot be done in a case before us without deciding that the Act in question is valid or invalid. But as I understand

O'FLANAGAN that my learned colleagues take the contrary view as to the right

to an injunction, it is my duty to say, out of respect for them and in the public interest, that I am by no means satisfied as to the validity of the section under the power to make laws " with respect to immigration." The section would be more fitly called "a law for the exportation of undesirable persons"; although it is applied to such persons only as have not have been born in Australia, and as have offended in Australia within three years after arrival. If the limit of three years is valid, a limit of seventy years would be valid: and a man who sixty-nine years before became a member of the Carbonari in Italy, and had not ceased to be a member of that society, or is affiliated to it (whatever affiliated" means), and has for all the long years lived in Australia as a reputable citizen, is liable to be deported by the Minister without trial, with the sanction as to deportation of a Board selected and appointed by the Minister himself. The power to make laws is not to make laws with respect to persons who have been immigrants, or even with respect to "immigrants" it is a power to make laws with respect to "immigration "---the act of immigrating (it has that meaning in the dictionaries)--power to regulate that act of immigration, perhaps preventing some persons, encouraging or assisting others, imposing any conditions on the act of immigrating. I take the same view as I expressed fully in Huddart, Parker &amp;Co. Proprietary v. Moorehead 1, that the power to make laws "with respect to

immigration" is a power to legislate on the subject of immigration, that we have to find what is the primary matter dealt with, "the true nature and character of the legislation in the particular instance under discussion" (Russell V. The Queen 2 ) and that the various subjects of legislation are not mere pegs on which the Federal Parliament may hang legislation on any other subject that it likes. What is the true nature and character

1(1908-09) 8 C.L.R., at p. 408. 2(1882) 7 App. Cas., 829, at pp. 839-840. 32 CLR 575

32 C.L.R.]

OF AUSTRALIA. of this legislation ? How does it differ in essence from legislation for the deportation of undesirable persons, though limited to persons not born in Australia who have not been three (hereafter it may be thirty) years here ? This section does not bear on the act of immi- grating at all the immigrating is over and past. It is to be noticed that the section 8A of the Act does not use the words 'immigration' or immigrant," or any of their congeners. That fact, of course,

IS not conclusive of the matter, but it strongly tends to the same conclusion, that the Federal Parliament was not really dealing with immigration at all, but with something else. It is suggested that these men were admitted on probation. Probably the Federal Parliament could, in pursuance of this power, provide some system of probation for immigrants; but the simple answer here is that the Act contains no provision for such a system. These men-subjects of the King, not aliens-entered Australia in pursuance of passports there was no condition put upon their entry; and they are to be driven out, not because of anything relating to their entry but because, being (as alleged) advocates of revolution in Ireland, they were not born in Australia. Moreover, it is very difficult to see how these men can be called immigrants, or their visit to Australia "immigra- tion" into Australia. All the dictionaries, I think, concur in treating the words as connoting entry into a country for the purpose of settling there: and these men certainly had no such purpose. The power is not to make laws with respect to entering or being in Australia for a visit. It has been held by the Judge of a District Court in the United States that the immigration laws of the United States apply only to such aliens as enter the States with the intention that they shall become residents thereof-that the laws do not apply to (e.g.) seamen coming with their ship (United States v. Burke 1 ). This was held, not because of any distinctive words in the Act, but because of the meaning of the word "immigration." As for the so-called Immigration Acts," enacted by the Colonial Legislatures before Federation, it would surely be fallacious to attach much importance to the fact that these Acts contain sections which include provisions not comprehended under the word "immigration" in its strict sense. The Colonies had then full power to legislate on all subjects;

1(1899) 99 Fed. Rep., 895. 32 CLR 576

and if the Legislatures chose to call the Acts which contained such provisions Immigration Acts," for a short title, that is no indica- tion that the word had changed its meaning, or that in Australian usage "immigration' " has any other than its ordinary meaning in the English language. If indeed, without evidence on the subject,

O'FLANAGAN we are to say what immigration means in ordinary Australian par-

O'KELLY. lance, I should have no doubt that the "man in the street would

not treat a mere visitor to Australia as an immigrant. So in South Africa and in New Zealand, the Parliaments are not restricted, as the Australian Parliament is, to specific powers; and in Canada the Dominion Parliament has all the powers not specifically granted to the Provincial Legislatures. It is worthy of notice, also, that in the Canadian Immigration Act of 1910, "immigrant " is defined as meaning a person who enters Canada with the intention of acquiring Canadian domicile (sec. 2 (g) ); and Canadian domicile is acquired for the purposes of the Act by a person having his domicile for at least three years in Canada after being landed there (sec. 2 (d) ). The case of Chia Gee v. Martin 1, on which reliance has been placed by the defendants, was merely a case on the interpretation of the Immigration Act itself-not of our Constitution. The Court did not deal with the question whether in this respect the Act was beyond the powers of the Commonwealth Parliament; though it certainly held that on the true construction of the Act, as distinguished from the Constitution, the word 'immigrant included those who entered the Commonwealth in fact-whether with the intention of settling or not. The difficulty, sometimes occurring, of proving that a certain person is intending to settle in Australia does not affect the question of construction of the Constitution. Parliament has power, if it think fit, to follow the Canadian Act by putting upon every person who enters Australia the burden of proving that he does not intend to settle in Australia. The cases of Attorney-General for the Commonwealth v. Ah Sheung 2 and Potter v. Minahan 3 show, of course, that British subjects may be prohibited immigrants but Minahan's Case recognizes that all the King's subjects, being bound by the one tie of allegiance to the one sovereign, are free to

1(1905) 3 C.L.R., 649. 2(1906) 4 C.L.R., 949. 3(1908) 7 C.L.R., 277. 32 CLR 577

32 C.L.R.]

OF AUSTRALIA. move at will throughout the Empire unless some law forbid them. The subject has this right by virtue of his natural liberty-andlibertas naturalis est facultas ejus quod cuique facere libet nisiquodi jure prohibetur (Bracton). The position is different with regard to aliens, who have no enforceable right to enter British territory (Musgrave v. Chun Teeong Toy 1; and I have no doubt that under pl. XIX. of sec. 51 of our Constitution the Parliament could pass a law for the expulsion and deportation of aliens (Attorney-General for Canada v. Cain and Gilhula 2 ). But these plaintiffs are subjects of the King.

In my opinion, the motion for an injunction was rightly dismissed, not on the ground that sec. 8A is valid, but on the ground that the plaintiffs were not entitled to an injunction under the circum-

RICH J. In the circumstances, were it not for a position which was taken late in the argument and which I will deal with further on. it would not be right for the Court to determine the validity or invalidity of sec. 8A of the Immigration Act 1901-1920. Apart from that position, there exist objections at the threshold which decide the result of the application before we reach the constitutional question. A writ of prohibition is a process which can only be issued to restrain within the limits of its legal jurisdiction some inferior Court. It follows that, unless the Board constituted under sec. 8A is in the eye of the law a Court, prohibition does not lie to it. Its only power, which is conferred in terms really too plain for argument, is to hear what the person called before it has to say and then, not to decide anything, but merely to "recommend" or not to recom- mend " deportation to the Minister. That is not a decision, and the whole process is utterly unlike the well-known judicial functions of

Court. The Board is in the nature of an advisory body, and its function is merely ancillary to the executive power. Prohibition therefore, out of the question.

As there is no decision, certiorari is inapplicable. With respect to quo warranto, the application in this case is directed in effect rather against the office than the officer under the guise of questioning the title of the officers to hold the office. It questions the existence

1(1891) A.C., 272. 2(1906) A.C., at p. 546. 32 CLR 578

of the office. That is not the function of quo warranto, The

application SO far fails.

Before going to the last position I wish to add a few words in view of the course the argument took. A good deal was said about the liberty of the subject, very little about the safety of the Common- wealth; stress was laid on the harshness of holding in custody O'KELLY. pending deportation a person coming from abroad who, after due

opportunity for explanation, has been considered both by an impar tial Board and a responsible Minister to be SO dangerous as a citizen that his deportation is necessary. The policy and expediency of such provisions are not for the Court to consider, but I would say that the detention for the purpose mentioned has been recognized by an English Court (R. v. Campbell 1 ) as being, not imprisonment in the strict sense, but as mere detention in custody for the purpose of seeing that deportation is not evaded.

The last position arose on the application for injunction, which by consent was put forward to restrain the Board from proceeding on the ground of the alleged illegality of sec. 8A. It appeared that the plaintiffs are being charged at the instance of the Government of New South Wales with sedition, and criminal proceedings are pending. On the ground that, if the Board's proceedings are not justified by some law (and if sec. 8A is bad it is not a law), there would, I think, be a good case made out for injunction, because of the prejudicial effect on the criminal charge.

I am bound, therefore, to consider whether sec. 8A is authorized or not by the Constitution. That depends on the proper scope to be given to the word " immigration" in sec. 51 (XXVII.) of the Constitu- tion. Dictionary definitions are frequently very helpful, but they are not coercive. Everything depends upon the particular docu- ment in which a word is found; for, as Lord Blackburn said in River Wear Commissioners v. Adamson 2, " the meaning of words varies according to the circumstances with respect to which they were used."

I have had the opportunity of reading the judgment of my brother Isaacs, and agree with what he had said on this subject with refer- ence to the word "immigration" as it is found in the Constitution, and also with regard to the subject of injunction.

1(1921) 2 K.B., 473. 2(1877) 2 App. Cas., 743, at p. 763. 32 CLR 579

On all the points raised I agree that the applications should be refused.

STARKE J. On 7th May 1923 the Minister of State administering the Immigration Act 1901-1920 issued a summons to the applicants Kelly and O'Flanagan to appear before a Board consisting of the respondents Macfarlane, Manning and Stinson, which he had on the same day appointed pursuant to sec. 8A of the Act, to show cause why the applicants should not be deported from the Common- wealth. On 22nd May 1923 the applicants obtained orders nisi from this Court calling on the members of the Board and the Minister to show cause why a writ of prohibition should not issue, directed to the members of the Board and the Minister, prohibiting them from further proceeding in respect of the said summons, and from further proceeding in any respect before the Board, and in the alternative to show cause why leave should not be granted to either exhibit an information of quo warranto or obtain relief of a like nature to quo warranto, or why, in the alternative, a writ of certiorari should not issue. The applicants also, on 22nd May 1923, issued a writ of summons out of this Court against the members of the Board, claim- ing a declaration that the Board had no authority to proceed further, as a Board, in the proceedings in which the applicants were being called upon to show cause why they should not be deported, and also an injunction restraining the defendants from proceeding further in or about the said matters. Towards the close of the arguments on the orders nisi the Court, with the consent of the members of the Board, allowed the applicants-the plaintiffs in the action-to move for an interim injunction in the action in the terms claimed by the writ of summons.

I may postpone, for the moment, the consideration of all questions relating to the procedure adopted by the applicants for the purpose of testing the power of the Commonwealth under the Immigration Act. and come at once to the question of substance, namely, whether the power conferred upon the Parliament of the Commonwealth to make laws for the peace, order and good government of the Common- wealth with respect to immigration and emigration (Constitution,

32 CLR 580

sec. 51, pl. XXVII.) warrants the enactment of sec. 8A of the Immigra- tion Act. Immigration and emigration in the Constitution connote the movement of human beings into and out of the Commonwealth. And a law with respect to these subjects may not only encourage that movement but also restrict it. The power to deal with this

O'FLANAGAN movement is not founded upon the intent of the person entering into

O'KELLY. or departing from the Commonwealth, but upon the fact of entry

or of departure (Chia Gee v. Martin 1 ). But the Constitution unites into a Federal Commonwealth the people of Australia. The entry into the Commonwealth of a person who at the moment of entering is already one of the people of Australia could hardly be described as an immigration into the Commonwealth it would in truth be the return of an Australian to his homeland. And SO this Court has decided (Potter v. Minahan 2; and see also Ah Sheung V. Lindberg 3 ). Whether any given person is one of the people of Australia is necessarily a question of fact. I agree, however, with the observation of my brother Isaacs in Potter's Case 4, and am of opinion that neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weight according to the circumstances of the particular case. But with this limitation-which is implied in the Constitution and controls the authority of Parliament-the legislative power with respect to immigration extends to every person entering the Commonwealth, whether a British subject or an alien. The history of the immigra- tion laws of the Empire tends to confirm this conclusion (Keith's Responsible Government in the Dominions, Vol. II., Part V., Ch. 4, pp- 1075-1100), but it would be unsafe to lay much stress upon it, for those laws were largely made by legislative bodies having plenary power within their territorial limits, and not by bodies restricted to specified powers, as in the case of the Parliament of the Common- wealth.

This great constitutional power with respect to immigration was conferred upon the Commonwealth for the peace, order and good government of Australia, for the maintenance of its social and

1(1905) 3 C.L.R., 649. 2(1908) 7 C.L.R., 277. 3(1906) V.L.R., 323 ; 27 A.L.T., 189. 4(1908) 7 C.L.R., at p. 308. 32 CLR 581

material interests and for its protection.

"It is not made a statu- tory condition that the exercise of such power shall be, in the opinion of a Court of law, discreet. In SO far" as the Parliament possesses THE

legislative power, the discretion committed to it " is unfettered. It is the proper function of a Court of law to determine what are the limits of the jurisdiction committed" to the Parliament; "but, when that point of law has been settled, Courts of law have no right whatever to inquire whether" the "jurisdiction has been exercised wisely or not (Union Colliery Co. of British Columbia v. Bryden 1. A rhetorical appeal was made during the argument to the Charter of John and to the principles of British justice and liberty; but I was myself unable to appreciate the precise bearing of these observations upon the matter which calls for decision by this Court, namely, what is the true interpretation of the power conferred upon the Parliament with respect to immigration. Within the limits prescribed by the Constitution, Parliament has an "authority as plenary and as ample

as the Imperial Parliament in the plenitude of its power possessed and could bestow " (Hodge v. The Queen 2; Attorney-General for Canada v. Cain and Gilhula 3 Lloyd V. Wallach 4 ). Clearly, as it seems to me, a restrictive power is involved in the authority to make laws with respect to immigration. But restriction must operate upon persons; and if it is to be effective, the Parliament must have authority to refuse, to a person who does not belong to the people of Australia, permission to enter the Com- monwealth, or to annex what conditions it pleases to the permis- sion to enter," and further, to expel or deport from the Common- wealth at pleasure, any such person, if the Parliament considers his presence in Australia "opposed to its peace, order, and good govern- ment, or to its social or material interests" or to the welfare of its people (see Attorney-General for Canada v. Cain and Gilhula 5 Union Colliery Co. of British Columbia v. Bryden). The learned counsel who appeared for the applicants suggested, however, that the authority to make laws with respect to immigration involved no more than a power to regulate the act of immigrating (whatever

1(1899) A.C., 580, at p. 585. 2(1883) 9 App. Cas., 117, at p. 132. 3(1906) A.C., at p. 547. 4(1915) 20 C.L.R., 299. 5(1906) A.C., at p. 546. 32 CLR 582

OF A. that may mean). The phrase is loose and ill-defined. The argu-

ment seemed to concede that the Parliament might attach any con- dition it thought proper to the permission to enter the Commonwealth, but insisted that legislation is invalid which does not attach those con- ditions at the moment of entry, and to the act of entry. Once a person has entered Australia, and his entry was subject to no condition, then, according to this view, his immigration is over, and presumably he becomes permanently incorporated in the people of Australia. This argument is more remarkable for its refinement than for its per suasiveness. Once concede that the constitutional power involves the right to exclude certain persons from the Commonwealth and to attach conditions to their entry, then it is apparent that the Parlia- ment may deal, not only with the privilege of entering the Common- wealth, but also with the privilege of remaining within it.

Consequently, the argument for the applicants in the present case reduces itself to an emphasis of the form rather than the sub- stance of the legislation. But I cannot subscribe to the view that a law with respect to immigration either ends when the person immigrating has entered Australia, or, for the matter of that, begins when he sets out on his voyage to Australia. On the contrary, many laws could, I should think, be supported under the power, which have no direct concern with the act of immigrating. Thus Acts for the purpose of encouraging immigration might make provision for the suitable housing or settlement of immigrants in advance of the act of immigrating, or for the assistance, in various forms, of persons who had completed the act of immigrating. The view I take of the constitutional power does not, as the case of Cunningham V. Tomey Homma 1 suggests, enable the Parliament to legislate with respect to the ordinary civil rights and duties within the States of persons who fall under the category of immigrants, but it does affirm the power of the Parliament to regulate the right of those persons to enter and remain within the Commonwealth.

If these propositions be true, then the validity of sec. 8A of the Immigration Act can, in my opinion, be satisfactorily demonstrated. The section deals with arrivals within the Commonwealth who were

1(1903) A.C., 151. 32 CLR 583

not born in Australia. Prima facie, at all events, such arrivals are immigrants. It was argued, however, that the section covered as well immigrants as persons who had arrived in Australia from abroad, even before the passing of the Constitution, and had made their homes in Australia and become part of its people. But a construction which would destroy the constitutional validity of an enactment is opposed to the well-settled rule of this Court, unless the words are incapable of an interpretation within the ambit of the power assigned to the Parliament. Now, as I have said, the enact- ment prima facie deals with immigrants, and its title is " an Act to place certain restrictions on immigration and to provide for the removal from the Commonwealth of prohibited immigrants." With these aids to interpretation before us, it is impossible, in my opinion, to misunderstand the Act. It is aimed at and hits immigrants, and not members of the Australian community. The specific cases provided for in sec. 8A are clearly within the discretion of Parliament (Hodge V. The Queen 1; Baxter v. Ah Way 2 ); and, as the Judicial Committee has SO well observed, it would be not only unseemly, but distinctly wrong, for the Court to inquire whether that discretion has been exercised wisely or not.

Consequently, the provisions of the section are within the immi- gration power conferred upon Parliament by the Constitution. It is unnecessary to consider whether the section could be supported either wholly or in part under other constitutional powers, e.g., those with respect to aliens.

Coming now to the procedure adopted by the applicants for the purpose of testing the validity of sec. 8A of the Immigration Act. Even if that section were invalid, still prohibition would not be an appropriate remedy. The Board's authority allows it simply to make a recommendation: it has no judicial function. And it is well settled that prohibition only goes to restrain proceedings of a judicial nature, and not proceedings of an administrative or advisory nature (see In re Clifford and O'Sullivan 3 ). Again, quo warranto proceedings do not enable the legality of a statute or of a charter to

1(1883) 9 App. Cas., 117. 2(1909) 8 C.L.R., 626. 3(1921) 2 A.C., 570. 32 CLR 584

be attacked, but are rather directed against the individual title of a person holding or purporting to hold office under the statute or charter (Short and Mellor's Crown Practice, p. 284; and see R. V. Taylor 1 ). And certiorari, wide as is its scope, lies in respect of proceedings in their nature judicial as opposed to proceedings in their nature administrative or advisory (R. v. Manchester Justices O'KELLY. 2 R. v. Johnson 3; R. v. Woodhouse 4, overruled in the

House of Lords 5 but without consideration of this point). As to injunction, the basis of the jurisdiction to grant that remedy is the violation of some right: the mere fact that a law was uncon- stitutional would not warrant the issue of an injunction. Some injury to the applicants must be shown, some violation of their rights. Now, the evidence wholly fails, in my opinion, to establish either the infringement by the Board of any right in the plaintiff, of property, personal liberty, or reputation, or any act which, if carried into effect, will necessarily result in the violation of any of those rights. What, then, is the suggested right in this case ? All we can say is that unauthorized proceedings before the Board might possibly prejudice the applicants in connection with a charge in the nature of sedition before the State Courts, and upon the hearing of that charge, if it ever comes to trial. And this, it is said, is calculated to infringe what is called the applicants' right to a fair trial. But interference with the administration of the King's justice is rather an offence against the King himself than a violation of any right in the subject. The King's Courts in the States are, as it seems to me, armed with ample powers to secure fair trials and the proper adminis- tration of justice in proceedings pending in the States, and to deal with persons within their territorial limits who, without any lawful authority, interfere with or obstruct those proceedings (see Packer V. Peacock 6 ). Consequently, but for the opinions of the Chief Justice and of my brothers Isaacs and Rich, I should have hesitated to conclude that an injunction was an appropriate remedy in this case, even if sec. 8A of the Immigration Act had been unconstitutional but, in the face of their opinions, I shall content myself with

1(1840) 11 A. &amp;E., 949. 2(1899) 1 Q.B., 571. 3(1905) 2 K.B., 59. 4(1906) 2 K.B., 501. 5(1907) A.C., 420. 6(1912) 13 C.L.R., 577. 32 CLR 585

expressing a doubt upon the subject, and avoid deciding the matter in a sense contrary to the view they have formed.

Orders nisi discharged with costs. Motion for

interlocutory injunction dismissed with costs. Solicitors for the prosecutors and plaintiffs, R. D. Meagher, O'KELLY Hogarth &amp;Co.; Collins &amp;Mulholland.

Solicitor for the respondents and defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

[HIGH COURT OF AUSTRALIA.] TROWER

THE COMMONWEALTH Public Service (Commonwealth)-Transferred officers-Officer in Public Service of H. C. OF

State-Transfer to Public Service of Commonwealth-Break in service of State between establishment of Commonwealth and time of transfer-The Constitu- tion (63 &amp;64 Vict. C. 12), sec. 84-Commonwealth Public Service Act 1902-1918 BRISBANE, (No. 5 of 1902-No. 46 of 1918), sec. 60.

Sec. 84 of the Constitution