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

The case of *R v Macfarlane; Ex parte O'Flanagan and O'Kelly* involved two British subjects, O'Flanagan and O'Kelly, who had recently arrived in Australia. They were facing criminal charges under the *Crimes Act* for engaging in a seditious enterprise. Concurrently, they were summoned to appear before a Board appointed under section 8A of the *Immigration Act 1901-1920* to show cause why they should not be deported. The plaintiffs sought an interlocutory injunction from the High Court of Australia to restrain the Board from proceeding with its inquiry.

The central legal issues before the High Court were whether section 8A of the *Immigration Act* was a valid exercise of the Commonwealth Parliament's legislative power, and if so, whether the Board constituted under that section was a judicial tribunal to which writs of prohibition, quo warranto, or certiorari could lie. The plaintiffs also argued that the proceedings before the Board would prejudice their defence in the pending criminal prosecution.

A majority of the Court, comprising Knox C.J., Isaacs, Rich, and Starke JJ., held that section 8A of the *Immigration Act* was a valid law with respect to immigration, falling within the scope of section 51(xxvii) of the Constitution. Furthermore, the Court unanimously determined that the Board appointed under section 8A was not a judicial tribunal, as it lacked the power to impose obligations or affect rights; its function was merely to recommend deportation to the Minister. Consequently, prohibition, quo warranto, and certiorari were deemed inappropriate remedies.

The application for an interlocutory injunction was refused. Knox C.J., Isaacs, Rich, and Starke JJ. based their refusal on the validity of section 8A and its applicability to the plaintiffs. Higgins J. dissented on the grounds that there was insufficient evidence of irreparable injury or urgency to warrant an interlocutory injunction.