R v MacFarlane [1923] HCA 39

High Court of Australia|1923-07-01|Before: Starke JJ, Higgins J, By Higgins J, Rich JJ, Starke J

H.C, or A, Constitutional Law - Powers of Commonwealth Parliament - Immigration - Exten 1923. power - Deportation after entering Commonwealth - British subject - Intention | ated settle - Visitor to Commonwealth - The Constitution (63 & 64 Vict. c. 12),

MELsourNE, 51 (xxvut.), 71 - Immigration Act 1901-1920 (No. 17 of 1901 - No. 51 of 192 May 29-31; sec. 8a* - Prohibition - Quo warranto - Certiorari - Board appointed to Tune 1. mend as to deportation - Non-judicial tribunal - Action to restrain J proc Perens before Board - Injunction - Interlocutory injunction - Challenging valAug. 28... «oe 8a ot the Immigration Aré10D1..>. alli formue cf aside at an

Knox c.3,, 1920 provides that '(1) Where the abolition of organized gover Isaacs, Higgins, Minister is satisfied that, within three who advocates the assassination 0 Rich and" years after the arrival in Australia of a public officials or who advocat Starke JJ. person who was not born in Australia, teaches the unlawful destruc that person . . . (d) is a person property, or who is a member

who advocatesthe overthrow by foree or __ affiliated' with, any organization

violence of the established government __ teaches any of the doctrines and

of the Commonwealth or of any State, tices specified in this pa

or of any other civilized country, or of he may, by notice in writing,

~ Commonwealth statute - Criminal prosecution pending - Canse of action - A ppre- hension of irreparable injury - Judiciary Act 1903-1920 (No. 6 of 1903 of 1920), secs. 31-33, 80 - Crimes Act 1914-1915 (No. 12 of 1914 - 1915), sec. 244 [War Precautions Act Repeal Act 1920 (No. 54 of 1920), sec. 12].

Held, by Knox C.I., Isaacs, Rich and Starke JJ. (Higgins J. doubting), that sec. 84 of the Immigration Act 1901-1920 is a law with re

and is therefore within the legislative power of the Commonwealth Parliament "conferred by sec. 51 (xxvut.) 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 wouid not lie to prevent the Board from proc'

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 plaintifis, who were British subjects born in Ireland and had recently arrived in the Commonwealth, had been arrested on a charge, under sec, 244 of the Crimes Act 1914-1915 (enacted hy 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. 8 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. application by the plaintiffs for an interlocutory injunction,

By Knox C.J., Isaacs, Rich and Starke Jd., 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 plaintitts would be prejudiced in their defence on the criminal charge by the continuation of proceedings before the Board _ would, if sec. 84 were invalid, be a ground for granting injunction.

€ person to appear before a Board hin the time and in the manner

scribed, to show cause why he sh not be deported from the ommonwealth. (2) A Board ap- pointed for the purposes of the last

ng sub-section shall consist of e members to be appointed by the in (3) The Chairman shall be person who holds or has held the fice of Judge, or Police, Stipendiary

or Special Magistrate. (4) (a) If the person fails, within the prescribed time, to show cause why he should not be deported, or () the Board recommends that he 'be deported from the Com- monwealth, the Minister may make an order for his deportation, and he shall be deported accordingly. (5) Pending deportation the person may be kept in such custody as the Minister directs."

san 1923 they were arrested on warrants charging them with by

About 13th March 1923 Michael O'Flanagan and John Ji O'Kelly, each of whom was a British subject born in Ireland, a in the Comthonwealth; each of them having a passport issued ] the Imperial Secretary of State for Foreign Affairs. On 30th Ap

engaged in a seditious enterprise under the Crimes Act 1914-19) amended by the War Precautions Act Repeal Act 1920. On 8th 15th May respectively, O'Flanagan and O'Kelly were served ¥ summonses to appear before a Board, consisting of William M pherson Macfarlane, Henry Edward Manning and John Stinson appointed under sec. 84 of the Immigration Act 1901-1920, to show cause why they should not be deported. On 11th May, O'Flana; and O'Kelly appeared before the Board, and objection was taken their behalf to their being called on to show cause why they sho not be deported, and on 19th May the objection was overruled.

informant the hearing was adjourned until 5th June. On 2: May, O'Flanagan and O'Kelly each obtained an order nisi ca upon the members of the Board, the Minister administering Immigration Act and the Commonwealth to show cause why a ¥ of prohibition should not issue to prohibit further proceedings before the Board upon the summons served on him and from making recommendation to the Minister in respect of his deportation ; a in the alternative, to show cause why leave should not be grante exhibit an information of quo warranto, or why the applicant sho not have relief of a like nature to quo warranto; or why, in th alternative, a writ of certiorari should not issue. The grounds each case wer (a) That the Commonwealth Parliament had n power to pass sec. 84 of the Immigration Act 1901-1920 in its presen form; (b) in the alternative that the section is invalid so far as

applies to British subjects; (c¢) that sec. 8a is invalid because 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 create by Parliament or State Courts vested with Federal jurisdiction ; -

d) that there is no authority in the Commonwealth to legally deport H- ©. oF a. om the Commonwealth the holder of a passport issued by the 19? perial Secretary of State for Foreign Affairs to a British subject Time Kiva

after the term of the passport expires or is cancelled. Meee On 22nd May, O'Flanagan and O'Kelly and John Leo Francis Clancy instituted an action in the High Court against the members if 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

hich the first two defendants were being called upon to show cause

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.

Watt K.C. and Evatt, for the prosecutors. The High Court has iction in this matter under sec. 75 (11.) of the Constitution; for the Commonwealth is behind the Minister in his claim to deport the utors. If it has not jurisdiction under sec. 75 (r11.), it has under 75 (v.); for the Minister is an officer of the Commonwealth. Pro- ition will lie here: for the Board, as constituted by sec. 84 of the gration Act 1901-1920, is a Court and purports to act as a Court. recommendation of the Board against deportation is final; if t does not recommend deportation the prosecutors cannot be orted. Prohibition will go to a person who assumes, under colour legislative authority, to act as a tribunal affecting the rights of sons (R. v. Hibble; Ex parte Broken Hill Proprietary Co. (1); In Clifford and O'Sullivan (2); Huddart, Parker & Co. Proprietary d. v. Moorehead (3); Kimber v. Press Association (4); R. v. Ker- d (5)).

{Isaacs J. referred to R. v. Local Government Board (6); R. v. aguire (7).

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

(1) (1920) 28 C.L.R., 456. (5) (1898) 19 (2) (1921) 2 A.C., 570, at p. 582. (6) (1902) 2 LR., (3) (1908-09) 8 C.L.R., 330. (7) (1923) 2 LR., 58. (4) (1893) 1 Q.B., 65, at p. 73.

H.C. or A. summoned before it, and the fact that execution of the pronoun 1923. ment is carried out by a third party does not differentiate the ¢ from R. v. Hibble; Ex parte Broken Hill Proprietary Co. (1). proceedings of the Board are judicial proceedings dealing y _ matters affecting the liberty of the subject. (See Waterside Wor in connection with politi

regarded as its primary signification in an instrument of Gove ment. Who could imagine that, when " immigration " was entrust to the Commonwealth Parliament, Chinese visitors were to be h forth free from interference ? Such a contention puts back the of Australian history a quarter of a century.

But there is the strongest confirmation of the fact that Austi Parliaments were not singular in their terminology. In New Zeala in Canada, in South Africa, the same expansive connotation of

word "immigration," when used legislatively, exists. It was a fat of international life and intercourse that nations for their o existence' sake were recognizing and coping with. In 1899, by No. 33, the New Zealand Parliament passed the Immigration tion Act. By sec. 3 " prohibited immigrant " was defined. was nothing in the Act to affirm or deny expressly that " vis was included in " immigrant." In 1908, by Act No. 78, the law

consolidated, but not, | think, altered. Up to this time, as far as |

subject had - except the United Kingdom in relation to aliens 1905 - contented themselves with enacting what they considered

insufficient to guard against undesirable persons gaining a foo in the community. Persons might, without any attempt at con ment, pass through and, though without the manifestations of perils sought to be excluded, they might be dangerous carriers, the evils they brought, as I have said, might very soon afte become openly visible. On the other hand, a man might sue conceal his disqualification. But how could the authorities abroad to the immigrant's own country and obtain proof ; and at w trouble and expense ? Or how could anyone, in the case of manifesting itself subsequently, prove the actual condition of immigrant on arrival? These considerations led to a

method of provisional admission exemplified by sec. 84. In 1910 H.C. oF A 1923.

minion Parliament enacted provisions of a very drastic nature sec. 40 and following sections), which are directed to protect

provisions were apparently adapted from the English s Act 1905, secs. 3 and 4, and applied to immigration.

y regulation." The South African Act is also very interesting from s testimony on the subject of " visitors." I have quoted a section ing to the undesirability of an immigrant as an " inhabitant," m indicating permanency. But sec. 4 of the Act, under the head- "Prohibited Immigration," includes among " prohibited immi- grants' (d) any person who from information received from any Government (whether British or Foreign) through official or diplo-

as been convicted in any country of" (certain offences), and " by eason of the circumstances connected with the offence, is deemed by he Minister or by an immigration officer acting pursuant to directions from the Minister, to be an undesirable inhabitant of or visitor to the von." That is to say, in the first case, the person arriving might considered by the Minister undesirable only as an inhabitant, or as a visitor; and in either case he is a " prohibited immigrant." , in the second case, the Minister or immigration officer may ink the person arriving undesirable as an inhabitant only - or even S a visitor - and in like manner he is a " prohibited immigrant."

Thisis a clear indication of opinion in an English-speaking comm ni that " visitors" equally with intending " inhabitants" are eq ; Within the scope of a law dealing with "immigration." s enables the Minister to issue a temporary permit to any prohibi immigrant to enter and reside in the Union or any particular #4N upon such conditions as may be lawfully imposed by regulation,

can, if he chooses, deal with the circumstances of the case. It is no

unimportant also, as evidencing what may be termed the gene understanding throughout the self-governing Dominions of | word "immigration," that at the sitting of the Imperial Conferen held on 13th June 1911, when British, Canadian, Australian, N Zealand and South African Ministers were present, Mr. Wh Churchill in the course of a speech on Nationalization s

or affect the local law as regards immigration, that is to say,

exclusion of aliens or even natural-born British subjects, which th

tion Acts passed up to that date. There is no trace of any exception of

isitors" ; and such an exception, if it had been suggested, would it need scarcely be said, have been strongly resented by the Dominion representatives present. (See English Parliamentary Papers. 5745, July 1911, p. 257.) Finally, in the New Zealand Act of 1920, No. 23, an amending Immigration Restriction Act, following provisions are made: - The Act is made part of Immugration Restriction Act 1908. By sec. 5, as an addition to immigration restrictions in the Principal Act, permits are requi from persons other than persons of British birth or parentage enter New Zealand. But by sec. 8 a " visitor" may obtain a temporary permit, provided he intends to leave New Zeala within six months. By Part II. of the Act the oath of allegiance may be required in certain cases, and sec, 20 provides that in cases of contravention of the oath the person shall be deemed a ' pro- hibited immigrant." 4 These enactments show very plainly the extended scope attributed to the subject of immigration, dictated of course by the enormous - public danger arising from persons arriving from abroad, and the -

ity - a necessity becoming constantly more peremptory - of a H. ©. oF A.

tion guarding itself against dangers all the more serious because

immediately detectable. It is true that New Zealand, Canada tun Kia

nd South Africa have Constitutions differing from our own. But

e head of * Immigration," it is cogent evidence that they are O'ieennx.

ded, by the representatives of the millions they are intended to ect, as properly incidental to that subject.

I have thought it right in the circumstances to examine these jections as if the matter were res nova, though it is not. The lusions at which I have arrived by an independent examination the subject are precisely those declared by this Court several years (Chia Gee v. Martin (1), Ah Yin v. Christie (2) and Potter v. Minahan (3) ).

Hicerss J. Two Rules Nisi for Prohibition. - Each applicant seeks have a Board, constituted under sec. 84 of the Immigration Act 1901-1920, prohibited from proceeding with a summons issued by the

applicants that the section is unconstitutional and invalid. But fore entering on the question of validity, we are invited by the Board to say that prohibition does not lie - that even if the section s invalid, prohibition is not an allowable remedy because the Board not a judicial tribunal. Prohibition is not an appropriate remedy ept for judicial proceedings (In re Clifford and O'Sullivan (4) ).

So far as material for this case, the section 8a provides that " where Minister is satisfied that, within three years after the arrival in stralia of a person who was not born in Australia, that person

. isa person who advocates the overthrow by force or violence the established government . . . of any other civilised or who is a member of, or affiliated with, any

CLR., 649. (3) (1908) 7 C.L.R., 277. C.LR., 1428. (4) (1921) 2 A.C., 570.

the person to appear before a Board . . . to show cause why should not be deported from the Commonwealth." The Board is consist of three members to be appointed - selected - by the Minist himself, and the chairman must be or have been a Judge or Stipendi ' &e., Magistrate. Then if the person fail to show cause why he shoul not be deported, or if the Board recommend that he be deport the Minister may make an order for his deportation, and he shall |

Higgins 3 deported accordingly, and " pending deportation the person may

The question then is: Is this Board a judicial tribunal? We mu face the fact that if it is not, a person may be found guilty of the offences mentioned in the section, may be put in custody and deported from the Commonwealth, without having been tried fo the offence, without any judicial proceedings of any kind. It

"out of respect to" Parliament, as Chancellor Kent put it (Ma on Statutes, 6th ed., 383); but if the words used by Parliament quite clear, to the effect that the men are to be if custody a

Parliament. There is immeasurable danger if the section be con sidered in its relation to the particular men accused in this case only

decision, in the long years to come. In the very recent case of v. Home Secretary ; Ex parte O' Brien (1), Scrutton L.J. said, spe of the anxious care of the British Courts with regard to liberty of the subject : - * This care is not to be exercised less vigilantly becar the subject whose liberty is in question may not be particularly

believe in freedom of speech if you are willing to allow it to men whose opinions seem to you wrong and even dangerous." # (1) (1923) 39 T.LR., 487, at p. 491.

Unless this Board is a judicial tribunal, these men have not even e semblance of a trial. In the first place, the Minister has to be tisfied " ; but he need not hear the accused. There is nothing in Jaw to prevent him from satisfying himself in any way that he may choose - by anonymous letters, newspapers, informers, political

ought not to be deported lies on the accused. I presume that if the sed could show that he is too ill to be moyed, or too ill for pro- ganda, such a fact might be treated as reasonable cause against deportation.

According to Maawell (Interpretation of Statutes, 6th ed., p. 501), 'statutes which encroach on the rights of the subject, whether as ards person or property," "it is a recognized rule that they should be interpreted, if possible, so as to respect such rights." At p. 356 the learned author says : henever the language of the Legislature admits of two construc-

. and if construed in one way would lead to obvious injustice, e Courts act upon the view that such a result could not have been

anished, forced to abjure the realm against one's consent) " or in ny way destroyed ; nor will we condemn him, nor will we commit to prison except by the legal judgment of his peers or by the law of the land." The delicacy of the position with which we have to deal can be better appreciated, perhaps, when one reflects that if such a statute as this were on the British Statute Book in the middle 8 of last century, Kossuth might be deported from England, Mazzini and Garibaldi. Moreover, it appears from the affidavits hat the Minister made his order at a time (7th May 1923) when these were actually under a charge of " seditious enterprise " - a charge which involved substantially the facts of which the Minister was " satisfied" (see Crimes Act 1914-1915, sec. 24c). O' Flanagan

had been arrested on this charge on 30th April, and was ren at the instance of the police, to 15th May. On that day the sol for the informant applied for a further remand * on the ground

the proceedings under the Jmmigration Act" (these pro F under sec. 8A) "were shortly to be heard." The solicitor for S accused objected, insisting on the prisoner's right to trial at th

earliest possible moment; but the remand was granted. The

Higgney, Justice, in his judgment, has indicated the peculiar position in whi the Minister's action taken under sec. 8a, during the pendency of tl prosecution for seditious enterprise, has placed the accused ; u as the prosecution was instituted and conducted by State authorit who are not before us, and as the questions of law in this case ¢ be affected by the position, I think it best to abstain from com:

There are many cases that could be cited as showing the lengths which Courts have gone in their endeavours to construe Acts in suc way as will make them consistent with the first principles of justi and as will leave fundamental, time-honoured, practices stan but I shall refer to one case only, In Cox v. Hakes (1) the Judica Act 1873 had provided that the Court of Appeal might entertain appeal "from any judgment or order" of the Queen's Bench. There had existed, however, for centuries a principle that if Queen's Bench had once discharged a prisoner from custody under a habeas corpus there could be no appeal; and it was held in th House of Lords that the unqualified words of the Judicature must be read with a qualified meaning, must be treated as confined to appealable cases, There is the highest authority, therefore, fo

approaching this case with the prepossession that our Parlia

intended that the Board should be a judicial tribunal. As Marshall C.J, said in United States v. Fisher (2), "' where rights are infri where fundamental principles are overthrown, where the gent system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a Court of just to suppose a design to effect such objects"; and see We Counties Railway Co. v. Windsor and Annapolis Railway Co. (3);

(1) (1890) 15 App. Cas., 506, (2) (1804) 2 Cranch, 358, at p. 390. (3) (1882) 7 App. Cas., 178, at p. 188.

It is not for those who exercise the judicial power of the Common- lth to condemn what is done by those who exercise the legislative That is not our business. But it is my right. and my duty,

sumption itself is based on respect for Parliament, and to ignore uld be disrespectful to Parliament. have therefore anxiously sought to find in these provisions of

ec. 8, or in the rest of the Act, something which would justify me

upon individuals " (R. v. Local Government Board (3) ): and this was adopted by Palles C.B. (In re Local Government Board ; Ex e Kingstown Commissioners (4) ). The mere facts that there is an upon which evidence can be taken to which witnesses can summoned, and that the decision involves certain discretion, are jot enough (per Palles C.B.) ; nor the facts that there is a meeting. ummons or notice, a complaint depending, a right to be heard ; nor fact that the Board says " We wish to hear you before we do t which will be to your prejudice " (Ex parte Death (5) ). There st be some exercise of the prerogative of the King to establish or e rights judicially. Here, the Board merely recommends or sto recommend ; and if it recommends deportation the Minister ty refuse to act on the recommendation. Proceedings which can d in a mere recommendation are not judicial proceedings (see " e Coal Co. v. Firemen's Union (6): and, as to Royal Com- sions, Clough v. Leahy (7) ). This is a mere inquiry with a view suutive action, as the case before Palles C.B. was with a view to tive action. In principle, lam unable to distinguish an inquiry by this Board from an inquiry made by police under Govern- orders. Under such rulings, I am compelled to say that this (1) (1903) A.C., 355, at p (5) (1852) 18 Q.B., 647, at p. 660. (1918) A.C., 591, at p. (6) (1908) 6 C.L.R., 466,

(1882) 10 Q.B.D., 309, at p. 321, (7) (1904) 2 C.L.R., 139. (1885) 16 L.R. Tr., 150.

missioner of Public Works (Cape Colony) v. Logan (1): Union H. ©. or A

act on this presumption, and to state it where expedient. The O'F:

H.C. or A. Board is not a judicial tribunal to try these men in any sense for #l

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

The alternative remedies suggested by the rules are obvious inappropriate (quo warranto, relief in the nature of quo wa certiorari).

As to Injunction. - But at the conclusion of the arguments as the rules nisi, counsel for the two accused moved in an action, No

restraining the members of the Board from proceeding further | the inquiry under sec. 84. The question is, assuming the section be invalid, should an injunction be granted on this motion.

The only relief sought in this action is (1) a declaration that th members of the Board have no authority to proceed further Board, and (2) an injunction restraining them from doing so. 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 Board. It is admitted that there would be no ground for injune tic

Court were pending; but it is said that the plaintiffs are put dilemma, inasmuch as this inquiry compels them either to disclos their case before the Board, or to risk a de facto order for deportatior which would injure them on the criminal prosecution. But to b put in such a dilemma is not to have a cause of action (see per Bo L.J., Mogul Steamship Co. v. McGregor, Gow & Co. (1)). In Nort London Railway Co. v. Great Northern Railway Co, (2) the defen ant, as in pursuance of an agreement to refer differences with plaintiff to arbitration, appointed an arbitrator, and gave noti to the plaintiff to do likewise. The plaintiff was in a dilemma. _ contention was that the agreement for arbitration did not apply to the matter ; but if the plaintiff should fail to appoint, the award mi be made by the defendant's arbitrator alone. The plaintiff appli by motion for an injunction restraining the defendant from proce ing with the arbitration as it would be futile and vexatious ; but th Court of Appeal discharged the injunction granted by a Divisi

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

, saying that there was no wrong, legal or equitable, done by the H.C. or A. "Of course," said Cotton, L.J. (1), "it is very incon- 1874 nient to any one to be brought before a tribunal which has no juris- ion, but does that give a right to the High Court to interfere ?" t is what is called a case of damnum absque injuria - loss without n actionable wrong done by the defendant to the plaintiff. To da valid action, there must be injury as well as damage (Day v.

brought against him, or by an application to adjudicate him bank- ; 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 ion or proceeding unless there be malice and no reasonable or ybable cause. It is not here alleged or pretended that the mem- ff the Board are acting on such a motive; they are merely out the words of sec. 8a on the natural assumption that the ion is valid. The argument of dilemma is rather a reflection on Sydney bench of magistrates in postponing the trial until the inquiry should be over - a reflection which I have sought to avoid.

9 protect rights of liberty from unauthorized violation. No doubt ; but the Board is not violating any such rights. It is merely an inquiry, leaving it to the law to say whether the recom- ndation will be effective or not. Of course, the existence of a of action against the defendants must be tested on the facts as stood on 22nd May last, the date of the action ; we must ignore thing that has since happened.

t, even if there were a cause of action against the members of he Board, there is certainly nothing here to justify an interlocutory injunction, There is no such irreparable injury or urgency as ustifies a Court in interfering by interlocutory order before the action s been tried. If, as has to be assumed for the present purpose, ec, 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.

recommendation against deportation, no harm is done - the Mit nis cannot deport. If the inquiry end in a recommendation to de and if the Minister choose to make an order for deportation, pending deportation, keep these men in custody, there is ample ¢ speedy remedy by writ of habeas corpus. There is a further rem by an action for false imprisonment. What is done cannot undone - the Minister already on 7th May made his orders recit that he is satisfied that the plaintiffs were guilty of the off

not be deported. The plaintiffs have only to wait until the Min make an order for deportation ; meantime, a futile Board is (on th assumption) making a futile inquiry. Nor is it the practice of th Court to grant an interlocutory injunction when the damage don pending the trial of the action would be nominal ; such an injunetio is a substitute for damages between the writ and the trial (Read
Wotton (1) ), and it is significant that in this proceeding no damag 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 defendant is doing will defeat the very object of the action ; there can be no such defeating here. It is a mistake to treat an interlocutory injunction as a matter of course, even where # plaintiff seems to have merits. In England, under sec. 25 (8) of the Judicature Act 1873, the Court can grant an interlocutory inj tion "in all cases in which it shall appear to the Court to be or convenient"; but, notwithstanding the amplitude of this d cretion, the Courts will discharge an order for an injunc'

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 there is a power to grant even at the hearing an injunction in s a case as this. Unless the power is conferred by sec. 31, 32 or s of our Judiciary Act, wnder the general words of those sections,

should say that there is no such power; but, as the effect of sections has not been fully considered in argument, I withhold fina] opinion on this point. a (1) (1893) 2 Ch., 171. (2) (1891) 2 Ch., at pp. 284-285.

'The old doctrine was that injunctions must be based on property - H. ©. or A 1923. ~

ome infringement of rights of property (Macaulay v. Shackell (1) ;

y. Easterbrook (2) ). In modern practice, however, the power

ction to set aside an agreement (Prince Albert v. Strange (3): O'Keuy. Pollard v. Photographic Co. (4); Kitts v. Moore (5) ). Certain Judges have said that an injunction may be issued for a merely personal

ment " (the Common ae 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 e Rolls reasons that if, under the English Judicature Act, sub- 8 of sec. 25, an injunction can be granted on interlocutory ipplication 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, atever be the force of this reasoning, the Court of Appeal in land, in a later case, held that sec. 25 (8) of the Judicature Act does not enlarge jurisdiction, it only affects procedure (North

e United States it is well settled that the mere fact that an Act is titutional does not entitle a party to relief by injunction

(7) (1878) 9 Ch. D., at (8) (1883) 11 Q.B.D., 3 (9) (1899-1900) 176 (10) (1909) 213 U. (11) (1910) 1 Ch.,

H.C. or A. ordinary circumstances, it would not be fitting that I should

pounce as to the validity or invalidity of the section. The pi ae of the Court is to assume that Acts of Parliament are valid find that justice cannot be done in a case before us without decid that the Act in question is valid or invalid. But as I underst that my learned colleagues take the contrary view as to the ri

AND é O'Kerny, toan injunction, it is my duty to say, out of respect for ther

the public interest, that I am by no means satisfied as to the valid of the section under the power to make laws " with respect to. immigration." The section would be more fitly called "a law fort exportation of undesirable persons" ; although it is applied to sv persons only as have not have been born in Australia, and as ha offended in Australia within three years after arrival. If the lin

of three years is valid, a limit of seventy years would be valid;

in Italy, and had not ceased to be a member of that society, affiliated to it (whatever " affiliated " means), and has forall thelo years lived in Australia as a reputable citizen, is liable to be deport by the Minister without trial, with the sanction as to depoi ati of a Board selected and appointed by the Minister himself. power to make laws is not to make laws with respect to persons have been immigrants, or even with respect to "immigrants"; it power to make laws with respect to 'immigration " - the immigrating (it has that meaning in the dictionaries) - pows regulate that act of immigration, perhaps preventing some pe encouraging or assisting others, imposing any conditions on 1 act of immigrating. I take the same view as I expressed fu lly Huddart, Parker & Co. Proprietary v. Moorehead (1), that the pov to make laws " with respect to . . . immigration" is a poy to legislate on the subject of immigration, that we have to find wh is the primary matter dealt with, " the true nature and char:

the legislation in the particular instance under discussion " (R v. The Queen (2) ); and that the various subjects of legislation ari mere pegs on which the Federal Parliament may hang legislatio1 any other subject that it likes. What is the true nature and chara

(1) (1908-09) 8 C.LLR., at p. 408, (2) (1882) 7 App. Cas., 829, at pp. 839-840.

legislation 2 How does it differ in essence from legislation H. ©. oF A. 1923.

deportation of undesirable persons, though limited to persons

born in Australia who have not been three (hereafter it may be Tue Kina years here? This section does not bear on the act of immi- yy, Reape

at all; the immigrating is over and past. It is to be noticed section 8a of the Act does not use the words " immigration "

grant," or any of their congeners. That fact, of course,

ot conclusive of the matter, but it strongly tends to the same yiggins 3. ion, that the Federal Parliament was not really dealing with ation at all, but with something else. It is suggested that men were admitted on probation. Probably the Federal ent could, in pursuance of this power, provide some system obation for immigrants ; but the simple answer here is that the contains no provision for such a system, These men - subjects King, not aliens - entered Australia in pursuance of passports ; re was no condition put upon their entry ; and they are to be driven not because of anything relating to their entry ; but because, ig (as alleged) advocates of revolution in Ireland, they were not in Australia. Moreover, it is very difficult to see how these n can be called immigrants, or their visit to Australia "' immigra- to Australia. All the dictionaries, I think, concur in treating yords as connoting entry into a country for the purpose of settling ; and these men certainly had no such purpose. The power to make laws with respect to entering or being in Australia Tt has been held by the Judge of a District Court in the States that the immigration laws of the United States apply o such aliens as enter the States with the intention that they become residents thereof - that the laws do not apply to (e.g.) coming with their ship (United States v. Burke (1)). This d, not because of any distinctive words in the Act, but because meaning of the word " immigration." As for the so-called iigration Acts," enacted by the Colonial Legislatures before ration, it would surely be fallacious to attach much importance that these Acts contain sections which include provisions mprehended under the word "immigration" in its strict The Colonies had then full power to legislate on all subjects ; (1) (1899) 99 Fed. Rep., 895.

H.C. or A. and if the Legislatures chose to call the Acts which contained 1923.

provisions "' Immigration Acts," for a short title, that is n¢ tion that the word had changed its meaning, or that in At _ usage "immigration" has any other than its ordinary mean :_, the English language. If indeed, without evidence on the " we are to say what immigration means in ordinary Australi: lance, I should have no doubt that the " man in the street" not treat a mere visitor to Australia as an immigrant. So in { Africa and in New Zealand, the Parliaments are not restricted, Australian Parliament is, to specific powers; and in Canada Dominion Parliament has all the powers not specifically gran the Provincial Legislatures. It is worthy of notice, also, the Canadian Immigration Act of 1910, " immigrant" is d as meaning a person who enters Canada with the intention of aequi Canadian domicile (sec. 2 (g) ); and Canadian domicile is acqu the purposes of the Act by a person having his domicile for at three years in Canada after being landed there (sec. 2 (d) ). case of Chia Gee v. Martin (1), on which reliance has been by the defendants, was merely a case on the interpretation Immigration Act itself - not of our Constitution. The Court did 1 deal with the question whether in this respect the Act was the powers of the Commonwealth Parliament ; though it ce held that on the true construction of the Act, as distinguished fre the Constitution, the word " immigrant " included those who ent the Commonwealth in fact - whether with the intention of se

certain person is intending to settle in Australia does not aff question of construction of the Constitution. Parliament power, if it think fit, to follow the Canadian Act by putting up

for the Commonwealth v. Ah Sheung (2) and Potter vy. Mina show, of course, that British subjects may be prohibited immi; but Minahan's Case recognizes that all the King's subjects, bound by the one tie of allegiance to the one sovereign, are fi

(1) (1905) 3 C.L.R., 649. (2) (1906) 4 OLR, 949. (3) (1908) 7 C.L.R., 27. :

-e at will throughout the Empire unless some law forbid th subject has this right by virtue of his natural liberty - and Libertas ralis est facultas ejus quod cuique facere Tibet nisi quod jure prohibetur con). The position is different with regard to aliens, who have acran- nforeeable right to enter British territory (Musgrave v. Chun re, mg Toy (1) ); and I have no doubt that under pl. x1x. of sec. 5] O'Franacan ur Constitution the Parliament could pass a law for the expulsion Oven.

| deportation of aliens (Attorney-General for Canada v. Cain and yiggins 3. a(2)). But these plaintiffs are subjects of the King.

In my opinion, the motion for an injunction was rightly dismissed,

on the ground that sec, 8a is valid, but on the ground that the

were not entitled to an injunction under the circum-

cu J. In the circumstances, were it not for a position which taken late in the argument and which I will deal with further it would not be right for the Court to determine the validity or lidity of sec. 8a of the Immigration Act 1901-1920. Apart from t position, there exist objections at the threshold which decide It of the application before we reach the constitutional tion, A writ of prohibition is a process which can only be issued restrain within the limits of its legal jurisdiction some inferior It follows that, unless the Board constituted under sec. 8a e eye of the law a Court, prohibition does not lie to it. Its ower, which is conferred in terms really too plain for argument, o hear what the person called before it has to say and then, not ecide anything, but merely to " yecommend " or not to * recom- 1d" deportation to the Minister. That is not a decision, and the process is utterly unlike the well-known judicial functions of The Board is in the nature of an advisory body, and its n is merely ancillary to the executive power. Prohibition is, refore, out of the question. 'there is no decision, certiorari is inapplicable. With respect to anto, the application in this case is directed in effect rather the office than the officer under the guise of questioning the of the officers to hold the office. It questions the existence (2) (1906) A.C., at p. 546.

of the office. That is not the function of quo warranto, ' application so far fails.

Before going to the last position I wish to add a few words in _ of the course the argument took. A good deal was said abou _ liberty of the subject, very little about the safety of the Comn wealth ; stress was laid on the harshness of holding in pending deportation a person coming from abroad who, a

opportunity for explanation, has been considered both by an ir tial Board and a responsible Minister to be so dangerous as a cit that his deportation is necessary. The policy and expedi such provisions are not for the Court to consider, but I wou that the detention for the purpose mentioned has been by an English Court (R. v. Campbell (1) ) as being, not impri in the strict sense, but as mere detention in custody for the pury of seeing that deportation is not evaded. 4

The last position arose on the application for injunction, w by consent was put forward to restrain the Board from proc

on the ground of the alleged illegality of sec. 8a. It appeared tl

New South Wales with sedition, and criminal proceedings : pending. On the ground that, if the Board's proceedings justified by some law (and if sec. 8a is bad it is not a law), would, I think, be a good case made out for injunction, be: the prejudicial effect on the criminal charge.

J am bound, therefore, to consider whether sec. 8a is aut or not by the Constitution, That depends on the proper scop'

are not coercive. Everything depends upon the particular d ment in which a word is found; for, as Lord Blackburn said in. Wear Commissioners v. Adamson (2), " the meaning of words vé

and also with regard to the subject of injunction. (1) (1921) 2 K.B., 473. (2) (1877) 2 App. Cas., 743, at p. 7

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

Starke J. On 7th May 1923 the Minister of State administering Immigration Act 1901-1920 issued a summons to the applicants ly and O'Flanagan to appear before a Board consisting of the pondents Macfarlane, Manning and Stinson, which he had on the same day appointed pursuant to sec. 8a of the Act, to show eause 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 weeding 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 ot issue. The applicants also, on 22nd May 1923, issued a writ of summons out of this Court against the members of the Board, claim- a declaration that the Board had no authority to proceed further, 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 ard, allowed the applicants - the plaintiffs in the action - to move an interim injunction'in the action in the terms claimed by the of summons.

I may postpone, for the moment, the consideration of all questions lating 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 e laws for the peace, order and good government of the Common- Ith with respect to immigration and emigration (Constitution,

see. 51, pl. xxv.) warrants the enactment of sec. 84 of the Zmm tion Act. Immigration and emigration in the Constitution the movement of human beings into and out of the Commony And a law with respect to these subjects may not only encou ra that movement but also restrict it. The power to deal with movement is not founded upon the intent of the person entering int or departing from the Commonwealth, but upon the fact of ent or of departure (Chia Gee v. Martin (1)). But the Constitutic

unites into a Federal Commonwealth the people of Australia.

entering is already one of the people of Australia could hardly described as an immigration into the Commonwealth: it would truth be the return of an Australian to his homeland, And so tl Court has decided (Potter v. Minahan (2); and see also Ah Sheung 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 Zsaacs in Potter's Case (4), and am opinion that neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weigh according to the circumstances of the particular case. But wi this limitation - which is implied in the Constitution and cont 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 Responsible Government in the Dominions, Vol. I1., Part V.,Ch. 4, pp. _ 1075-1100), but it would be unsafe to lay much stress upon it, fe those laws were largely made by legislative bodies having plena power within their territorial limits, and not by bodies restricted specified powers, as in the case of the Parliament of the Common- wealth. . 4

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

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

naterial interests and for its protection. "It is not made a statu- H.C. oF A.

y condition that the exercise of such power shall be, in the opinion Court of law, discreet. In so far" as the Parliament possesses islative power, the discretion committed " to it "is unfettered. he proper function of a Court of law to determine what are limits of the jurisdiction committed " to the Parliament; " but, hen that point of law has been settled, Courts of law have no right atever to inquire whether" the "jurisdiction has been exercised ly or not" (Union Colliery Co. of British Columbia v. Bryden A rhetorical appeal was made during the argument to the ter of John and to the principles of British justice and liberty ; I was myself unable to appreciate the precise bearing of these bservations upon the matter which calls for decision by this Court, namely, what is the true interpretation of the power conferred pon the Parliament with respect to immigration. Within the its prescribed by the Constitution, Parliament has an "authority plenary andasample . . . as the Imperial Parliament in the itude of its power possessed and could bestow" (Hodge v. The en (2); Attorney-General for Canada v. Cain and Gilhula (3) ; Lloyd Wallach (4)). Clearly, as it seems to me, a restrictive power is nyolved in the authority to make laws with respect to immigration. But restriction must operate upon persons ; and if it is to be effective, Parliament must have authority to refuse, to a person who does ot belong to the people of Australia, permission to enter the Com- jonwealth, or " to annex what conditions it pleases to the permis- on to enter," and further, to expel or deport from the Common- ealth at pleasure, any such person, if the Parliament considers his e in Australia " opposed to its peace, order, and good govern- or to the welfare of its

, or to its social or material interests e (see Attorney-General for Canada v. Cain and Gilhula (5) ; Colliery Co. of British Columbia v. Bryden). The learned 1 who appeared for the applicants suggested, however, that the uthority to make laws with respect to immigration involved no e than a power to regulate the act of immigrating (whatever

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

i that may mean). The phrase is loose and ill-defined. The a1

ment seemed to concede that the Parliament might attach any dition it thought proper to the permission to enter the Commonwes but insisted that legislation is invalid which does not attach those ditions at the moment of entry, and to the act of entry. Once a pers N has entered Australia, and his entry was subject to no condition, tl

O'Keuty. according to this view, his immigration is over, and presumably

Starke J. becomes permanently incorporated in the people of Australia, argument is more remarkable for its refinement than for its' suasiveness. Once concede that the constitutional power invo

the right to exclude certain persons from the Commonwealth a

ment may deal, not only with the privilege of entering the Con wealth, but also with the privilege of remaining within it.

Consequently, the argument for the applicants in the presen case reduces itself to an emphasis of the form rather than the ! stance of the legislation. But I cannot subscribe to the view tha a law with respect to immigration either ends when the pet immigrating has entered Australia, or, for the matter of that, be, when he sets out on his voyage to Australia. On the contrary, laws could, I should think, be supported under the power, wl

have no direct concern with the act of immigrating. Thus for the purpose of encouraging immigration might make provisio for the suitable housing or settlement of immigrants in advan of the act of immigrating, or for the assistance, in various form persons who had completed the act of immigrating. The vie take of the constitutional power does not, as the case of Cunningha v. Tomey Homma (1) suggests, enable the Parliament to legisl

with respect to the ordinary civil rights and duties within the

affirm the power of the Parliament to regulate the right of persons to enter and remain within the Commonwealth.

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

not born in Australia. Prima facie, at all events, such arrivals are H.C. oF A. 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 ir 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 07K the words are incapable of an interpretation within the ambit of the

Starke J. 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 temoyal from the Commonwealth of prohibited immigrants." With these aids to interpretation before us, it is impossible, in my opinion, to misunderstand the Act. Itis aimed at and hits immigrants, and not members of the Australian community. The specific cases provided for in sec. 84 are clearly within the discretion of Parliament (Hodge vy. The Queen (1); Baater 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- ation power conferred upon Parliament by the Constitution. It unnecessary to consider whether the section could be supported 'ither 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. Eyen if that section were invalid, still prohibition would not be an ppropriate remedy, The Board's authority allows it simply to make arecommendation ; it has no judicial function. And it is well settled at 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

) App. Cas., 117. (2) (1909) 8 C.L.R., 626. acm (3) (1921) 2 A.C., 570.

be attacked, but are rather directed against the individual title of person holding or purporting to hold office under the statute charter (Short and Mellor's Crown Practice, p. 284; and see R. 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 (2); R. v. Johnson (3); R. v. Woodhouse (4), overruled in #1 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: rant the issue of an injunction, Som

stitutional would not w: 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 caleulated 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. 84 of the Immigration Act had been unconstitutional ; but, in the face of their opinions, I shall content myself with

(1) (1840) 11 A. & E., 949. (4) (1906) 2 K.B., 501. (2) (1899) 1 a (5) (1907) AY (3) (1905) 2 (6) (1912) 13

messing a doubt upon the subject, and avoid deciding the matter H.C. oF A. a sense contrary to the view they have formed. acd THe Kine

Orders nisi discharged with costs. Motion for interlocutory injunction dismissed with costs.

Solicitors for the prosecutors and plaintiffs, R. D. Meagher, 0'Kruux fogarth & Co. ; Collins & Mulholland. Solicitor for the respondents and defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

B. L. (HIGH COURT OF AUSTRALIA.] OWER 5 . i : 'i - r . Parner ; AGAINST 'HE COMMONWEALTH . a é - . DeErenpanr.

lic Service (Commonwealth) - Transferred officers - Officer in Public Service of H.C. or A. State - Transfer to Public Service of Commonwealth - Break in service of State 1993.

between establishment of Commonwealth and time of transfer - The Constitu- = Go tion (63 & 64 Vict. c. 12), sec. 81 - Commonwealth Public Service Act 1902-1918 Brispaxz, (No. 5 of 1902 - No. 46 of 1918), sec. 60. _ June 14.

Sec. 84 of the Constitution deals in the first three paragraphs with the rights SypNey, of officers of Departments of the Public Service of a State transferred to the Aug. 2. Commonwealth, and provides that "any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, KB0S C1 'and shall be entitled to retire from office at the time, and on the pension or °¥" Duly JJ- retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State." The fourth paragraph of the section enacts that "any officer who is, at the establishment of the Commonwealth, in the Public Service of a State,

At a glance

Court

Decision date

Before

Source

Judgment (190 paragraphs)