R v Smithers; Ex parte Benson

The case of *R v Smithers; Ex parte Benson* concerned an order nisi for certiorari sought by John Benson to quash his conviction in New South Wales under section 3 of the *Influx of Criminals Prevention Act 1903* (N.S.W.). Benson, a Victorian resident, had been convicted in Victoria for having insufficient lawful means of support, an offence punishable by up to twelve months' imprisonment. After serving his sentence, he moved to New South Wales within three years and was subsequently convicted under the N.S.W. Act for entering the state after such a prior conviction. The High Court of Australia was asked to determine the validity of this conviction and the N.S.W. Act.

The central legal issues before the High Court were whether section 3 of the *Influx of Criminals Prevention Act 1903* (N.S.W.) was invalid as contravening the Commonwealth Constitution. Specifically, the Court had to consider whether the Act infringed upon section 92 of the Constitution, which mandates that "trade, commerce, and intercourse among the States... shall be absolutely free," and potentially section 117, which prohibits discrimination against residents of other States. The Court also had to determine the extent to which a State's residual police power to exclude undesirable persons was limited by the establishment of the Commonwealth and its Constitution.

A majority of the Court, comprising Griffith C.J. and Barton J., held that the conviction was bad. They reasoned that while States retain a police power to exclude persons deemed undesirable for reasons of public order, safety, or morals, this power is limited. They found that excluding an individual for an offence like having insufficient lawful means of support, even if technically falling within the Act's broad terms, did not meet the threshold of necessity required for a justifiable exclusion. Isaacs and Higgins JJ. also found the conviction invalid, but on the ground that the Act directly contravened section 92 of the Constitution by unduly restricting "intercourse" between the States.

The Court made absolute the order nisi for certiorari. The conviction of John Benson was quashed, and the record of that conviction was removed into the High Court.