Re Yates; Ex parte Walsh [1925] HCA 53

Re Yates; Ex parte Walsh [1925] HCA 53 | Case summary | Zoe

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applicant Johnson, took preliminary objections to the hearing of the applications by the High Court. Sec. 40 of the Judiciary Actis invalid. The only powers which can be invoked to support its validity are sec. 77 (11.) and (u1.) and sec. 51 (xxxrx.) of the Constitution. But sec. 40 neither defines the extent to which the jurisdiction of a Federal Court shall be exclusive of that which belongs to or is invested in the Courts of the States, nor invests any Court of a State with Federal jurisdiction. The limit of investiture falls short of completely divesting a State Court of jurisdiction in a matter which is in the exclusive jurisdiction of the High Court. A definition of jurisdiction must be universal and certain. Sec. 77 does not give power to the Parliament to delegate to the High Court the definition of the jurisdiction of a State Court; nor does it contemplate a discretion in the High Court. Once a State Court is invested with Federal jurisdiction, the Parliament has no express power to take away the right to exercise that jurisdiction. The power to remove a cause is essentially a judicial power, and sec. 40 in that view gives to the Attorney-Generals something in the nature of judicial power. Sec. 40 is limited to matters in respect of which the High Court has original jurisdiction under sec. 76 of the Constitution, and that Court has not been given original jurisdiction in matters arising under a Federal statute. Sec. 40 is invalid to the extent that it enables the High Court to remove the whole of a cause when only part of it involves the interpretation of the Constitution. Sec. 40 cannot be supported under sec. 51 (xxx1x.), for it is not incidental to sec. 38a of the Judiciary Act (see Pirrie v. McFarlane (1)). If sec. 40 is valid, on its true interpretation it does not apply to the removal from State Courts of summary applications for habeas corpus to determine the right of personal liberty. The Supreme Court of New South Wales has ample power under the Charter of Justice and 9 Geo. TV. c. 83 to deal summarily with questions of the liberty of the subject. That jurisdiction is not taken away by sec. 39 (1) of the Judiciary Act. That Court has also, under its Federal jurisdiction, power to grant a writ of habeas corpus. To apply sec. 40 to habeas corpus would have the effect of destroying several of the essentials

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of the United States, p. 124). The determination of the validity of - the detention of the applicants in this case is part of the judicial - power of the Commonwealth, because involved in the validity of the detention is the interpretation of the law of the Commonwealth, and because the question of that validity arises out of that law and in the last resort must depend on the validity of that law. Under sec. 40 removal may be ordered at any stage. That section differs from sec. 40a, under which removal takes place at the particular - stage when the question necessarily arises for decision (R. y. Maryborough Licensing Court; Ex parte Webster & Co. (1)). See. 40 would be useless if the right of removal arose only when the constitutional question came up for decision. If the constitutional question forms an ingredient of the cause, that is sufficient to justify removal (Railroad Co. v. Mississippi (2); People v. Sanitary - District of Chicago (3) ). The American cases referred to in Miller v. Haweis (4) are based on the fact that the Supreme Court of the United States does not give decisions on State laws contrary to the decisions of the Supreme Courts of the particular States. The Judiciary Act makes provision for the exercise of the judicial power of the Commonwealth, and is not a procedure Act. It does what the Constitution requires to be done to complete the judicial power. Tt deals with the whole matter irrespective of the particular kind of cause - with all matters which come within the judicial power. In that it differs from the Judicature Act 1873, with which Coz v. Hakes (5) dealt. The definition of " cause" in sec. 2 of the Judiciary Act is inclusive ; it includes " suit,'' which is defined as including any original proceeding between parties. That definition includes an application for habeas corpus, which is an original proceeding between parties. The respondent to such an application is a party; he is called on to show cause, he has to do what the Court orders and he may have to pay costs. [Counsel referred to Green y. Lord Penzance (6); Common Law Procedure Act 1899 (N.S.W.), secs. 252, 253; Coa v. Hakes (7); Barnardo v. Ford (8).]

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during its continuance, to know how to regulate his conduct, acts or speech so as to avoid the punishment prescribed. Sec. 8a is invalid because there is no connection between the recommendation of the Board and any of the objects which are specified in sub-sec. 2, such as the obstruction of trade and commerce. The words in sec. 51 (xxxrx.) "incidental to the execution of any power" presuppose that the powers referred to have been exercised. Sec. 8aa is not incidental to any power exercised by the Parliament, but is incidental to the object which the Parliament intended to effect. In order to support the validity of an Act which affects to operate on the general liberty of the subject, there must be indicated some law the execution of which needs the assistance of that restriction of liberty. The argument based on sec. 8aa being justified as emergency legislation is disposed of by Toronto Electric Commissioners v. Snider (1). The Parliament, if it intended to regulate trade and commerce so as to prevent interference with it, might have made a law prohibiting such interference and making deportation the sanction. But it would be necessary that that sanction should be imposed as a punishment so as to make it a matter for the Judiciary. The means of preventing the evil to which sec. 8Aa is directed are not consistent with the letter and spirit of the Constitution. The letter of the Constitution requires that the judicial part of the means shall be exercised by the Judiciary, and the spirit of the Constitution requires that the liberty of the subject shall be dealt with only by the Judiciary. Deportation under sec. 8a is a punishment. It is a deprivation of a right except in the case of an alien, who has no right to be in the country. The American cases as to deportation all refer to aliens; and the word "deportation " is appropriate to the expulsion of an alien and not to that of a citizen. What the Minister is required by sec. 844 (2) to do, namely, to form an opinion on certain matters, is an exercise of judicial power, and can be conferred only upon a Court. Even if sec. 8Aa is valid, since it is found in an immigration Act it must be construed so as to exclude persons who are not subject to the immigration power. The Board deprived the applicants of their

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and commerce " implies (a) a command with respect to that subject, (b) a duty or obligation really connected with that subject and (c) an appropriate sanction. For the purposes of the trade and commerce power sec. 8AA says in substance: "' Any person who, in the opinion of the executive Government or its agents, injures trade and commerce shall be deported." There is no command with respect to trade and commerce, there is no duty or obligation imposed with reference to that subject matter, and, although there is a sanction stated, it has no relation to any command genuinely connected with trade and commerce. It is impossible for any person to obey such a law. It may be admitted that a law which says "any person who injures trade and commerce shall be deported " is a valid law, because in that case the connection between the sanction, the command and the duty is obvious. The principle applies to every head of power in secs. 51 and 52. " Any person who forges a bill of exchange shall be deported" may be a valid law with respect to bills of exchange, but an enactment to the effect that "any person who in the opinion of the Minister has forged a bill of exchange shall be deported" is bad. This view is consistent with all the judgments in R. v. Barger (1), including those of Isaaes J. (2) and Higgins J. (3). Trade and commerce is a practical conception, and has been so regarded by this Court (New South Wales v. Commonwealth (4); W. & A. McArthur Ltd. v. Queensland (5)). Giving the widest scope to the concept, trade and commerce does not include opinions about trade and commerce, or opinions about the activity of any person in connection with trade and commerce. [Counsel referred to Attorney-General for Ontario v. Reciprocal Insurers (6).] Tf sec. 8aa is a valid law with respect to trade and commerce, Parliament could validly enact that a person who is in fact carrying on purely domestic trade within the State and is not engaged in inter-State trade in any way, could be punished, because in the opinion of the executive Government of the Common- wealth his trade interfered with inter-State trade. It is obvious that an enactment in these words, "any person who obstructs

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interference with his own public service by arresting British subjects and ejecting them from the country, let alone a power to eject on suspicion of interference. When an officer of the Government arrests a supposed thief, he is not exercising any power of the King, but is simply a citizen keeping the King's peace, which he must do or be liable for a common Jaw misdemeanour. If he makes a mistake, he may have no defence to a civil or a criminal charge. There is no analogy whatever between the chairman of a public meeting ejecting persons obstructing its proceedings and the Government ejecting resident British subjects. One is lawful, but the other is a civil wrong. It follows, therefore, that, inasmuch as there is no executive power vested in the Commonwealth Government to deport British subjects, there can be no legislation under sec, 51 (xxxrx.) to provide for such deportation by legislation. Sec. 8aa is not justified as an emergency law, but (a) the situation in time - of war may be entirely different, as per Isaacs J. in Farey v. Burvett (1): (b) there is no reference to "* emergency " in sec. 51 or sec. 52, _ and the Commonwealth Parliament has no emergency power except _ with respect to naval and military defence, and such power is not : relied on here ; (c) the position in Canada is different, because there the residuary power of legislation is in the central authority; (a) 4 Snider's Case (2) shows that, even where emergency is relied upon, - the existence of an emergency is a question of fact, and here there is no evidence of emergency in fact, but simply of an opinion of the Government. It follows that sec. 84a can only be supported, if at all, under the power of " immigration and emigration." It is clearly not a law with respect to emigration, because the fundamental idea _ of emigration is voluntary departure from one's home country to - another. With respect to immigration, the decisions of the High Court establish clearly that the power does not apply to any person who, at the moment when the power is sought to be applied to him, has become a part of the people of Australia, with his permanent home here. This test is in substance adopted by the five Justices in Potter v. Minahan (3) and by Knox C.3., Higgins and Starke JJ. in

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commerce with other countries or among the States, or (2) the provision of services by any department or public authority of the Commonwealth, and (e) that the presence of that person in Australia will be injurious to the peace, order and good government of Australi in respect to some matter and (f) that Parliament has power make laws as to that matter, he may summon the person to appear before a Board to show cause why he should not be deported, Shortly stated, sub-sec. 2 purports to authorize the Minister, if he' is satisfied that the specified conditions exist and that the presence in Australia of any person not born in Australia will be injurious to the peace, order and good government of the Commonwealth in relation to any matter with respect to which the Parliament has, in the opinion of the Minister, power to make laws, to call on such person to show cause why he should not be deported from the Commonwealth. Sub-sec. 3 provides by reference for the constitution of a non-judicial tribunal before which cause may be shown, and for the deportation of the person called on if he fails to appear before the tribunal or if the tribunal recommends that he be deported. - The object aimed at - the effect which would be produced by the exercise of the authority conferred - is the removal from Australia of any person not born in Australia whose continued presence in Australia is, in the opinion of the Minister, likely to be injurious in the manner specified ; and the remedy provided - deportation - is, in my opinion, clearly preventive and not punitive in its nature. It is true that the operation of the enactment is made conditional on the Minister being satisfied that the person proposed to be dealt with has been concerned in acts which may be supposed to be detrimental to the welfare of the Commonwealth; but those acts are not, either by this section or, so far as I am aware, by any other law of the Commonwealth, prohibited or declared to be unlawful, - nor is any punishment provided by law for persons concerned in committing them. The section provides, not that a person who has been concerned in acts of the kind specified shall be punished by being deported, but that, if the Minister is satisfied that he has _

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operation of a law made under it, must, in my opinion, be determined on the same considerations whether the law made under the power be directed to restricting his right to enter the Commonwealth or to destroying his right to remain there. The decision in Potter v. Minahan (1) clearly establishes, as the head-note states, that a person whose permanent home is in Australia and who therefore is a member of the Australian community is not, on arriving in Australia from abroad, an immigrant in respect of whose entry the Parliament can legislate under the power conferred by sec. 51 (xxvut.) of the Constitution to make laws with respect to immigration. It is true that in that case the person in question was born in Australia and lived in Victoria for a few years before the institution of the Common- wealth in 1901, but none of the Justices who took part in the decision treated these facts as of themselves decisive of the question whether he was within the scope of the immigration power. There is nothing in the reasons given by any member of the Court which suggests that the decision would have been the other way. if the respondent in that case had, by birth or residence in Australia, acquired a home there after the institution of the Commonwealth instead of before that event. Griffith C.J. relied principally on the fact that the respondent was born in Victoria and was entitled to regard Victoria as his home, and that his return to the Commonwealth was not immigration within the meaning of the Constitution. Barton J. in effect held that the respondent was not an immigrant, nor was his coming to Australia immigration, because he was returning to his home. O'Connor J. said that to describe as an immigrant a person who is coming back to the country which is his home is a contradiction in terms. He said further (2) : - ' The foundation in law of the respondent's case is the unimpeachable proposition that a person cannot be an immigrant into the country which is his home. Whether at the time of his landing Australia was the respondent's home is a question of fact on which this case will turn." He thought that in arriving at a conclusion on this question the fact that respondent was born in Australia had not conclusive effect and was no more than prima facie evidence that his home in infancy

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Minister should be conclusive on the question whether the person to whom it was sought to apply the provisions of the section had been "concerned in" certain acts, and upon the question whether those acts were directed towards hindering or obstructing the transport of goods or conveyance of passengers or the provision of services by any department or public authority of the Common- wealth, and upon the question whether such hindrance or obstruction was or would be to the prejudice of the public, and upon the question whether the presence of the person in Australia would be injurious to the peace, order and good government of the Commonwealth in relation to the matters specified; and I can find no justification for removing from the category of matters as to which the Minister is to be satisfied the matter covered by the intervening words " in relation to trade or commerce with other countries or among the States." Consequently, in considering the question of validity, I treat the section as requiring, not that the transport or conveyance shall in fact and in law be in relation to foreign or inter-State trade or commerce, but that it shall be so in the opinion of the Minister. When the operation of a law is made conditional upon the opinion, as to certain matters, of some person named or described, or on proof of certain matters to his satisfaction, the question whether his opinion is justified, or whether he should have been satisfied on the materials before him, is not examinable by the Courts. The only question which can be examined is whether, acting bona fide, he formed the opinion or was satisfied with the proof. It follows, in my opinion, that this section is not a valid law with respect to trade and commerce with other countries or among the States within the meaning of the Constitution. The function of interpreting the Constitution is assigned by the Constitution to the judicial power of the Commonwealth, the question whether the subject of a law is within the ambit of one or more of the powers of legislation conferred by the Constitution on the Parliament being in every case a question depending on and involving the interpretation of the Constitution. Parliament itself has no power to define the ambit of any of those powers, nor can it confer such power on any person or tribunal except some competent organ of the judicial power. To

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preventing injury which might result from the presence in Australia of the person indicated, not at punishing that person for having been concerned in acts of the kind specified. The only connection between this law and the trade and commerce power is, on this construction of it, that the law may come into operation if the Minister is satisfied that the person sought to be affected by it has at some time been concerned in acts directed towards hindering or obstructing transactions which are part of inter-State or foreign trade or commerce. But, although participation in such acts may be the matter as to which the Minister is satisfied in accordance with the earlier provisions of the sub-section, the person concerned in those acts is liable to deportation, if the Minister is satisfied that his presence in Australia will be injurious to the peace, order or good government of the Commonwealth in relation to (for example) divorce and matrimonial causes or invalid and old-age pensions. The reference to acts directed towards hindering trade or commerce is introduced into the enactment, not for the purpose of prohibiting such acts, or of enabling persons committing or attempting to commit them to be punished for, or prevented from, doing so, but merely for the purpose of furnishing a condition precedent to the exercise by the Minister of the power of deportation. So far as foreign or inter-State trade or commerce is concerned, the enactment prohibits no act, enjoins no duty, creates no offence, imposes no sanction for disobedience to any command, prescribes no standard or rule of conduct. It purports to do no more than arm the Minister with power to prevent an injury, the nature of which is not defined, to the peace, order or good government of the Commonwealth in relation to any matter in respect of which the Parliament has power to make laws. And that power may be exercised although the person dealt with has never been concerned in any transaction of inter-State or foreign commerce, or in hindering or attempting to hinder any such transaction, if the Minister is satisfied of the existence of an alternative condition precedent. The enactment does not purport in any respect to authorize, prohibit, regulate, or affect any transaction which is included in the subject matter described as 'trade and commerce with other countries, and among

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exercise of the legislative powers of the Parliament, or to a possible, but not actual, duty of the Executive to execute and maintain the laws, and is not confined to cases in which Parliament has exercised its power to make laws. The argument is, as I understand it, that this law is valid as being either a law in respect of every power of legislation which Parliament has, or a law ancillary or incidental to the execution of all those powers or to the execution of the powers vested in the Executive by sec. 61 of the Constitution. In my opinion, the decision to which I have referred establishes authorita- tively that a possible exercise by Parliament of its legislative powers in respect of any or all of the matters in respect of which Parliament has power to make laws is not sufficient subject matter to support a law as a valid exercise of the power of legislation conferred by sec. 51 (xxx1x.), or of that power read in conjunction with sec. 61 of the Constitution or with any other legislative power of the Parliament. The opinion of the Judicial Committee delivered by Viscount Haldane shows clearly that, in the opinion of their Lordships, it was not sufficient, to render an Act intra vires the Parliament, that it should be "ancillary to possible subjects of present legislative capacity, as distinguished from being incidents in actual legislation about such subjects" (1). I add that, if the true view of the mean- ing of sec. 8aa be, as I think it is, that the opinion of the Minister is intended to be conclusive on the question whether the matter, in relation to which injury is apprehended, is a matter with respect to which Parliament has power to make laws, the enactment, regarded as an exercise of the power to make laws on all subjects with respect to which legislative power is conferred on the Parliament, is open to the further objection which I have indicated in the observations I have made on the trade and commerce power, namely, that it is not within the power of Parliament to confer on the Minister power to determine whether any matter is within the ambit of the subject matter with respect to which Parliament is empowered to make laws.

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illegal restraint or confinement" (Lord Birkenhead in O'Brien's Case (2)), and as a means to "the immediate determination of the right to the applicant's freedom" (Lord Shaw, quoting Lord Halsbury (3) ) and as affording " promptitude " (Lord Shaw (4) ). So too the preamble to the Act 56 Geo. IIT. c. 100. The further development of the modern rule nisi is merely form, leaving the substance unaltered. The original principle is thus seen to survive from earliest times to the present day. But, assuming so much, Dr. Hvatt contended that there is a fundamental principle of our Constitution which operates to exclude this process from the generality of sec. 40. The principle relied on is that by the common law the liberty of the subject is so favoured and so protected by habeas corpus, that a person seeking liberation may go from Court to Court and probably from Judge to Judge until he either exhausts all opportunities or finds one who liberates him. To remove the cause from the Supreme Court to this Court is, so it is argued, the deprivation of one opportunity, the Supreme Court. To do this, it is urged, needs very express words, and the general terms of sec. 40 are insufficient for the purpose. In support of the argument the cases of Cor v. Hakes (5) and Secretary of State v. O'Brien (6) were cited. I am unable to accede to the view presented. As I understand the relevant decisions - looking only for this purpose at decisions of the House of Lords - the position under English law may be thus summarized : - (a) Where a Court has made a rule absolute for a habeas corpus in circumstances not amounting to a decision that a person is entitled to his liberty, general words in a statute allowing appeals are sufficient to include such a case (Barnardo v. Ford (7) ). (b) But the decision of a competent Court that a person is entitled to his liberty is, in the absence of distinct statutory enactment to the contrary, final and conclusive and not subject to appeal, whether the decision is that he be forthwith discharged (Cox v. Hakes ), or that a rule nisi for a habeas be made absolute on the ground that

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(2) The Main Case. - On the main case many questions of out- standing significance have been raised. It is essential, however, even at this advanced stage of our political development, and perhaps none the less because of that development, to bear constantly in mind certain fundamental principles which form the base of the social structure of every British community. Those fundamental principles and their working corollaries I have accepted and endeavoured to follow as unerring guides in reaching my conclusions on the matters directly in controversy. The principles themselves cannot be found in express terms in any written Constitution of Australia, but they are inscribed in that great confirmatory instru- ment, seven hundred years old, which is the groundwork of all our Constitutions - Magna Charta. Chap. 29 (sometimes cited as Chap. 39) contains them all. Its words, rendered into English, and so far as immediately material here, are: '' No free man shall be taken orimprisoned . . . orexiled ... but . . . bythe lawof the land." The chapter, as a whole, refers to other rights as well, and recognizes three basic principles, namely, (1) primarily every free man has an inherent individual right to his life, liberty, property and citizenship ; (2) his individual rights must always yield to the necessities of the general welfare at the will of the State ; (3) the law of the land is the only mode by which the State can so declare its will. These principles taken together form one united conception for the necessary adjustment of the individual and social rights and duties of the members of the State. For their effective preservation and enforcement the Courts have evolved two great working corollaries in harmony with the main principles, and without which these would soon pass into merely pious aspirations. The first corollary is that there is always an initial presumption in favour of liberty, so that whoever claims to imprison or deport another has cast upon him the obligation of justifying his claim by reference tothe law. The second corollary is that the Courts themselves see that this obligation is strictly and completely fulfilled before they hold that liberty is lawfully restrained. The second is often

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constitutional power, I agree with the first contention. The powers of the Parliament conferred by sec. 51 are "' to make laws for the peace, order, and good government of the Commonwealth," with respect to the various subject matters enumerated. So as to sec. 52. Whatever the Parliament enacts with respect to any of the named subject matters for any period or point of time subsequent to the establishment of the Commonwealth is, subject to any prohibition or qualification in the Constitution itself or in any controlling Imperial law, binding throughout the Commonwealth and on certain British ships beyond the Commonwealth (secs. 51 and 52 and covering sec. V). Such laws may be made prospectively or retrospectively, the Commonwealth Parliament having in this respect the power of the Imperial Parliament (Hodge v. The Queen (1)). If the subject matter exists at any time in the life of the Commonwealth, it matters not how or when it first came into existence. ' Banking," for instance, may be regulated irrespective of whether a bank arose before or after 1901. But it is the operations of banking subsequent to, and not the operations of banking prior to, the establishment of the Commonwealth, which are within the domain of Federal legislation. Those subsequent to the proclamation of the Commonwealth (see covering sec. IV.) may be controlled prospectively or, at the will of Parliament, retrospectively by Commonwealth law. Those prior to that moment were, and remain, outside the sphere of the constitutional power of the Parliament. The Parliament, for instance, could not retrospectively declare all the prior operations of the banks illegal ab initio. Apply that train of thought to the present case. The subject matter of the power is " immigration and emigration." It is true, and I have expressed my own view emphatically in the O'Flanagan Case (2), that once a person immigrates into Australia he is always subject to the power of the Parliament under construction. I endeavoured to crystallize my view into the maxim " Once an immigrant always an immigrant." A person arriving as an immigrant into the Commonwealth comes subject to all the constitutional powers of the Parliament of Australia. Its permission to him to enter may be either conditional or

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unconditional. He has no right to enter Australia against the will of its people. He can enter only in pursuance of their will, and subject to their constitutional right to qualify or withdraw that permission at any time or under any circumstances they think proper. No Parliament - for Parliament is only the legislative instrument of the people - can either by action or inaction surrender or weaken or forfeit that national power. Immigration, as I have explained in the O' Flanagan Case (1), is not obliterated for ever by the mere passage across the frontier, nor by the momentary leap over a barrier which magically and instantaneously transforms a Hindoo or a Kanaka, for example, into an Australian. If such were its: meaning, the cherished national policy of Australia would indeed be in peril. And it would only nominally lessen the peril if the Hindoo or the Kanaka by immediately adopting Australia as his "home," as it is said, could, so to speak, dig himself into this Commonwealth, so as to be irrevocably, so far as the Commonwealth power is concerned, a member of the people of the Commonwealth - a true Australian - and thereby escape the immigration power for ever. He could afterwards, as it is said, irrespective of nationality, of sentiment, of customs, of everything except his resolve to stay in ; Australia indefinitely as his "' home," remain here or travel back and forwards, leave when he pleased, enter as he chose, and claim all the rights of a native-born Australian who had never abandoned his country. For this Court to so hold would, in my opinion, be a tragedy. The immigration power would practically be a dead letter once the frontier was passed, whatever shred of theory remained. The true conception is, to my mind, transparently clear. Let me say at the threshold that no expressions of Judges, expressions perhaps of variable and debatable import, which have in any case been adopted merely in order to illustrate or describe with sufficient present precision the application of the law to a particular and different set of circumstances, should be permitted to replace the words of the Constitution. Commentary must never be regarded as incorporated into the text and then made the starting-point - either for enlarging or restricting the Constitution itself. I thought the Engineers' Case (2) had determined that for ever. The true

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difficulty. The permission of the people of Australia to a person, say an Italian-born, to enter and mingle with themselves, may be upon expressed conditions or free from expressed conditions. But whether one or the other, and whatever be the conditions, there is also and always one great and fundamental principle - call it a basic condition, if you will - that is, there resides in the Parliament, and subject only to the provisions of the Constitution itself, a power which it can never surrender or abridge or by its action or inaction abandon, namely, to declare at any moment the legislative will of the people of Australia respecting the various matters entrusted to it by the Constitution as from the birth of the Commonwealth. It may express that will regarding the present, the past or the future, and therefore any person immigrating to the Commonwealth is always subject to be regarded as an immigrant, if Parliament in its absolute discretion so wills. In Robtelmes v. Brenan (1) Barton J. hits the point exactly. He says in the words which now deserve the most special attention: " The right to prescribe the conditions upon which persons may remain and reside within this Commonwealth is included in that power to regulate immigration by statute." But all that necessarily has reference to, and flows from, the subject matter, "immigration and emigration" in the Constitution, and the permission thereunder given expressly or tacitly to any one to enter the Commonwealth. We do not find as a specific subject matter the word " immigrants." If we did, that might possibly be considered to mean all such persons as could be classified as " immigrants " by reason of their having come to Australia to settle at any time under any permission of any Parliament. I say " possibly" only. The words " immigration and emigration," however, are distinct. They connote some entry into or departure from the Commonwealth, that is, after its Constitution, as the initial fact or step by which the power is attracted. No person can be properly styled an immigrant or an emigrant for the purposes of that power unless his immigration or his emigration takes place after the Commonwealth comes into being. He must be one or the other relatively to the Commonwealth by reason only of immigration or emigration, which is such relatively to (1) (1908) 4 C.L.R., at p. 415.

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the Constitution. But if continued "movement" is the test of continuing immigration, and if the indefinite word " home" is the test whether the immigration is still in progress, then many persons who immigrated into Australia before the establishment of the Common- wealth were, even after its establishment and for many years, and may be still, in "movement" and so within the immigration power of the Commonwealth Parliament. It would as to them be always a fighting question of fact whether they have even now definitely adopted Australia as their "home" and escaped the immigration power. To me that is wholly inconsistent with the clear-cut view of the Constitution that I have adopted, namely, that where there was entry by any person into the Commonwealth prior to the birth of the Commonwealth, then, if that person still remains here, he is entirely outside the immigration power of the Commonwealth. But in truth there lurks in the contention in support of the second objection a basic fallacy which, if not eliminated, leads to disastrous results. It ignores the fundamental principle that it is the original entry, the "immigration," that attracts the power; that all that takes place afterwards takes place by virtue of and flowing from the original permission, and must be based on that permission ; that that permission was originally and always remains a matter of law, that the law is an essential element in determining whether or not aman is originally or has become and remains an Australian, having a right to be here (the very argument assumes it), and, lastly, that the law may be altered retrospectively so as to remove from the relevant cireum- stances that essential element of legal right to be present on Australian territory. Let me give a concrete illustration. For example, an Ttalian (to take a member of a great foreign European country) or a Hindoo (in order to include British subjects as well as aliens) arrives at the Port of Sydney in 1925, and desires to enter the Commonwealth. He is, of course, subject there and then to the immigration power. There may be no immigration law made under that power, or the law may say nothing as to him. He enters. He settles and perhaps marries, and so acts that he becomes domiciled within a year, and is so satisfied with his surroundings that he abandons all intention of leaving Australia. If of foreign nationality

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he becomes naturalized so as to enjoy certain advantages which an alien cannot have. Australia is his " home" as far as he can make it so. It is said he is incorporated into the Australian community Then he begins activities designed to establish anarchical and terroristic or treasonable societies. Parliament retrospectiy enacts that all persons immigrating as from 1924 shall be deportable as prohibited immigrants, if they are found engaging in such practices. Is it the law of the Constitution that he is immune? Cannot Parliament, acting for the people of the Commonwealth, alter or even revoke the permission which was given tacitly to immigrate into Australia? Or, phrasing it differently, cannot Parliament, by virtue of the legislative authority, said to be as widefor local purposes as that of the Imperial Parliament, regulate ab init its permission to him to enter and reside in Australia? Can he sayin. opposition to such an enactment: 'I have made my home here fact, and that fact which has taken place and has legal force only by permission of the Parliament has obliterated the fact that I immigrated ; that my immigration is annulled for all legal purposes, and now it is beyond the power of the Commonwealth to remove me"? By what authority and on what principle, I would ask, can this Court refuse to acknowledge the binding force of a Common: wealth Act retrospectively declaring the law as to the ori immigration of the man into Australia - a subject it could ha controlled at its inception? I believe this is the first time in the history of British jurisprudence that such a doctrine has ever been pressed upon a Court. If Parliament's powers, that is, the constitutional powers of the people of Australia acting through their Parliament, are to be so limited, I respectfully say I am unable to subscribe to the ruling. It would be a ruling which would write a new chapter on constitutional law, entirely foreign to the whole theory and practice of the British constitution (see The Ironsides (1) ), quite contrary to the law laid down by Lord Selborne in R. v._ Burah (2), and contrary to the view of Lord Macnaghten in Colonial Sugar Refining Co. v. Irving (3), contrary to the decision of this Court in R. v. Kidman (4), and not supported by any restriction or limitation

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supposed : " Once an immigrant always an immigrant." Suppose further, while enjoying the full permission to remain in Australia, after making his home here he leaves for Italy or India on a visit merely. So long as the statwle law remains unaltered, he is, in law, on his return not immigrating, and he may enter unchallenged. But if in his absence the law is altered, so as to declare him a prohibited immigrant by a retrospective alteration, express or implied, of the former permissive law, as at the date of his original entry, has he the tight to force his way in? Again I apply "Once an immigrant always an immigrant." We must, of course, carefully discriminate between the constitutional power and the statute. I apply the aphorism only to the power, not to the statute. He may not be always an immigrant, taking the statute as the test; or rather he may not always, according to that test, be a prohibited immigrant. But, for the purposes of the power, the aphorism holds without exception. No fact contrary to the law as it presently exists can ever have legal effect or override the law itself. Whatever the Federal Parliament can do or permit, it can undo or recall. If recent precedent be needed, it is found in the case of Meyer v. Poynton (1). That case arose under the power as to " naturalization and aliens " (sec. 51 (xtx.) ). The material circumstances are strikingly apposite. Meyer, an alien, became naturalized in 1909. At that time the Naturalization Act 1903 was in force. By sec. 11 the only power to revoke a certificate of naturalization was if it had been obtained by any untrue statement of fact or intention. An applicant must, by sec. 6, declare, inter alia, that he intends to settle in the Common- wealth. He must also take the oath of allegiance in the form in the Schedule to the Constitution. He then receives a certificate of naturalization. Then, says sec. 8, he " shall in the Commonwealth be entitled to all political and other rights powers and privileges and be subject to all obligations to which a natural-born British subject is entitled or subject in the Commonwealth " - certain reservations are mentioned which are immaterial. That process transmuted Meyer from an alien to a British subject, and, if anything could remove him from the alien power of the Constitution, that did

[252]

is cited - though it represents a principle frequently stated and acted upon in this Court - because it is the most recent expression _ of my views, and I adhere to them. I quote the passage somewhat fully because it applies equally to a later phase of this case. At the pages mentioned it is said : - '' They unmistakably cover in their literal signification even departures from all jurisdictional limits which have been prescribed. In the case of a plenary legislature no one would, we think, venture to-dispute that such is : the literal and primary ambit of the words used. But before we so determine in the present case, we must have regard to the is always material in construing a document to inquire whose instrument it is and what are the surrounding circumstances, The legislator is the Commonwealth Parliament, a legislature of - enumerated powers, and, in this case, of a power limited in more than one way. It is a well established principle of construction of even English statutes to limit general words by considerations which, in Stradling v. Morgan (1), are called 'foreign circumstances.' The latest case of supreme authority is that of In re Viscountess Rhondda's Claim (2). In that case Viscount Birkenhead L.C. (with whom concurred Lord Atkinson, Lord Buckmaster, Lord Swmner and Lord Carson) said (3) : - -' The words of the statute are to be construed so as to ascertain the mind of the Legislature from the natural and grammatical meaning of the words which it has used, and in so construing them the ewisting state of the law, the mischiefs to be remedied, and the defects to be amended, may legitimately be looked at together with the general scheme of the Act.' The learned Lord Chancellor referred, among other things, to 'a constitutional question of the utmost gravity.' See also per Lord Dunedin (4) and by Lord Wrenbury (5), the latter approving Stradling v. Morgan. Numerous prior examples are found, of 'foreign cir- cumstances,' that is, circumstances extraneous to the enactment interpreted, limiting the generality of its terms. Among them are Jefferys v. Boosey (6), Ex parte Blain (7) and Cooke v.

[265]

organ is obstruction to or interference with the Commonwealth itself. So of obstruction to or interference with the Parliament and the Executive. In some instances the particular organ has implied executive power to remove obstruction, as is shown in Barton v. Taylor (1). But where that does not exist a law is necessary, and this it is the function of the legislative organ to supply. The law, however, in authorizing the removal of the obstruction, authorizes the removal from the path of the Commonwealth itself of an obstacle which is contrary to its peace, order and good government. Obstruction and interference are not confined to physical hindrance of active exercise of powers. Parliament, in its survey of national affairs, may be content with the normal condition of trade and commerce, and of opinion that it should thus continue. If it affirmatively so declared, the matter would be transparently clear. It may equally declare that if any one endeavours to prevent that normal course of trade and commerce from continuing, he may be either punished for his past acts or prevented from repeating them. Prevention by discarding him as a member of the community, that is, by banishing him, is no doubt an extreme step to be judged of by the legislative and executive departments, but I cannot doubt that a Court must hold it to be a competent step - see the opinion of Sir J. Campbell and Sir R. Rolfe in Forsyth's Cases and Opinions on Constitutional Law, pp. 465-466. If, for instance, one man were thought by the whole of the rest of Australia, to be so great a danger in relation to defence that nothing short of expulsion - consistently with his continued existence - would be an adequate protection to the community, it would be absurd to say his single will to remain could prevail over that of six millions of people to the contrary. He could admittedly at will sever his political connection with Australia. Is Australia powerless to sever that connection at its united will ? I cannot doubt it. Further, in that case, deportation of that man could be properly directed as being a hindrance or obstruction to peace, order and good government of the Commonwealth, in relation to a matter in respect of which the Parliament has power to make laws, namely, national defence. There is nothing in the

[274]

the wisdom of Parliament when weighing in its own scales of soci justice the comparative claims of individuals and the nation, it says Yea, no Court can say Nay. The Sugar Co.'s Case (1) was referred to, as opposed to the legality. of every limb of sub-sec. 2. The learned Solicitor-General urged upon the Court, if it thought a part of that decision exceeded the subject matter of the certificate of reference of this Court, to disregard it on the ground that sec. 7 of the Constitution imposes an inescapable duty on this Court. my opinion, when that decision is carefully examined, it contains nothing in derogation of the views I have stated. Without ente upon irrelevant matters, I would say in the first place that, appears from p. 246 of the report in the English Law Reports (2) their Lordships clearly did not consciously exceed the limits of the certificate. The judgment may for present purposes be divided into two portions. The first begins at p. 254 and ends at the word "motion" on p. 256 of the same report (3). That part deals with sec. 51 of the Constitution down to and including sub- head xxxvor. As to this it is only necessary to say the legislati { in the present case does not assume to deal with any subject matters except those presently comprised in the legislative power of the Commonwealth Parliament. The second part of the S k Co.'s Case judgment is devoted to sub-head xxxrx. Their Lord- ships as to this say (4): the words " cover matters which are incident in the exercise of some actually existing power, conferred by statute or by the common law." Those words, in my opinion, are distinct authority for the legislation under consideration, construed as 1 have construed it. A Parliament is not, unless there be expr provision to the contrary, bound to express its will in any techni or special form, and no Court has any warrant to require it. If see. 8aa were passed as a separate and independent provision, I should hold that as legislation it covered the whole ground of these ti cases. It would be a waste of time for me, in view of the opinionsa the majority, to enter upon a more detailed statement of the reason:

[287]

stated. Lord Birkenhead in O' Brien's Case (1) said that the writ of habeas corpus "is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement," If "imperative," no Judge can put aside an obvious reason for instantly liberating a man, merely because it escaped notice earlier, Lord Dunedin (2) says the law of England is " ever jealous for | personal liberty." The procedure is said by Lord Shaw (3) to be one of " fundamental rights of the citizen," and this reminds us of the words of Hallam that the writ is " the principal bulwark of English liberty " (4). Acting on that inescapable principle, I have considered the circumstance to which I have referred, although it was not previously insisted upon, but which stands self-revealed when the facts are thoroughly understood. The summons by the Minister to show cause does allege that he was satisfied as therein stated. It - follows the exact words of sub-sec. 2, including the word "or" after the word " States." But those are words, not of facts found, but of the possible classes or types of acts that may possibly be found. Now, before going further, there are some things I would - wish to make perfectly clear. I am not resting on any formal or technical or clerical defect. It is not that the word "or" should be replaced by the word "and." That would make no difference in what I am about to say. The word " or' merely gives emphasis to the defect that exists, Nor is that defect attributable in any manner to the way in which the summons is drawn. It is a fundamental defect. It arises from a broad interpretation of the sub-section, which may, I freely admit, be possibly regarded differently by different minds; and my view is therefore put forward with the full consciousness that others may regard the matter differently. Still, : as I have a distinct and positive opinion, based on what I conceive to be the elementary sense of justice in view of the consequences, it becomes my duty to express and act upon it. The question turns on the true construction of the sub-section. - As I read the whole section, the Legislature intended that its" drastic provisions - I trust I may say " drastic" without doing more

[290]

unless the Executive considered in the first place there was a serious industrial disturbance of a national nature. In that case a proclamation would issue. Then, during that presumably emergent time, the Minister, if satisfied that any person not born in Australia was concerned in certain acts, might initiate steps towards his expulsion from the Commonwealth. The classes of acts, with reference to their general bearing, are prescribed ; the acts themselves naturally cannot be. They have to be ascertained by the Minister. They are to be acts of the following general type: they must be directed towards hindering or obstructing to the detriment of the public either (a) the transport of goods or the conveyance of passengers in relation to trade and commerce with other countries or among the States, or (b) the provision of services by any department or public authority of the Commonwealth. The Minister must also be satisfied that the presence of the person in Australia will be injurious to the peace, order or good government of the Commonwealth in relation to matters with respect to which the Parliament has power to make laws. Now, it is trite law that, before you can properly and fully understand any part of an instrument, you must read that part in connection with all the rest of the instrument. You must read what goes before and what comes after to see what is the full effect of the particular part under construction. When that is done and the subject matter, the purpose and the whole scheme of the instrument are grasped, one is in a position to say what the relevant words mean. The contest here shows that the end in view is the deportation of a person from the Commonwealth, and with sec. 3 (99) a prohibition against his ever re-entering it. The reason is that because he has been - as ascertained by a Minister of the Crown - (1) concerned in acts in themselves deliberately intended to injure the people of Australia and (2) a public danger to the Commonwealth, he is considered by Parliament as fittingly compelled to suffer the lifelong degradation of expulsion, with all the pecuniary loss, contumely and personal pain this expulsion may entail. If he has, in the belief of the Minister of the Crown, been concerned in such acts, Parliament is of opinion that due regard for the welfare of innocent and law-abiding citizens requires such drastic method of

[296]

protection, the Board were simply to be the medium of a possible fresh and independent attack. It is no answer to say the Board may consider the "acts" found by the Minister. The question is whether they must do so. There seems to me no just means of enabling the person to show cause except by furnishing him with a sufficiently clear indication of the " acts" as being those in which the Minister finds he has been concerned. It is said in opposition to that, that the section does not say the Board must consider the " acts" as found by the Minister. True, that precise form of language is not used. But what does "show cause" involve? Does it mean that, without anything whatever alleged or charge notified, a man must affirmatively prove to an irresponsible tribunal he is not unfit to remain in Australia? There are no words requiring a charge before the Board. Again, do those words permit any charge of any nature, possibly a charge which the Minister had considered and not been satisfied of ? I reject any such carte blanche commission to the Board. But, if the argument so advanced be sound, let us pursue it one step further. If the person fails to appear "the Minister may make an order for his deportation." On what grounds? If the Board recommends deportation "the Minister may make an order for his deportation." On what grounds does Parliament intend he shall make that order? The argument is that the Minister may disregard all the "acts" he has previously been satisfied of and, armed only with the Board's recommendation or only with the failure to appear, may, for any other reason he selects, order deportation. If that were true, I think arbitrariness and despotism could no farther go. But I for my part decline altogether to attribute that meaning to the Parliament of this country. Unless, however, it is so attributed, it stands undeniably true that an essential condition is wanting to the orders of deportation in this case. Unless that has been done, the section is not complied with, and one necessary statutory condition of the deportation orders is wanting. We were told that particulars were given as to the acts proposed to be proved to the Board. I repeat, that is nothing whatever to the point. The question is : What particulars have been proved to have been given as to the acts found by the Minister. The answer is, there is no such proof. And

[300]

prejudiced. If he might have been prejudiced by an insufficient intimation of the acts in question, the proceeding offends against what the law terms natural justice (see per Lord Esher in Cotterill vy. Lempriere (1)). This principle obtains not merely in indictments in criminal cases (see R. v. Stocker (2) ), but wherever an accusation is made by which the accused may be made to suffer. It applies to a civil action to recover a penalty for a criminal act (Davy y, Baker (3) ) and informations in the Exchequer for forfeiture (R. y. Morley (4) ). It applies to the case of expulsion from a club. In_ Cassel v. Inglis (5) Astbury J. says that, except in exceptional - cases and where not otherwise provided, "the accused shall be informed of the character of the charge to be investigated." Parliament, judging by the subject matter and the whole frame of the section, must presumably have intended to make the protection real and not illusory. Discarding all questions of form, it intended the accused should know definitely what was prima facie found against him and what would be acted on in case he did not appear. When it is remembered how multitudinous and how various are the possible "' acts' comprised in the double classification, the matter becomes, I venture to think, free from real doubt. " Acts" directed against the transport of goods or the conveyance of passengers in inter-State trade may range from exploding a ship or b locking a train to stopping a case of fruit crossing the border ; hindering or obstructing the provision of services by any department may range from impounding the mails or holding up the transcontinental railway to impeding on a solitary occasion the delivery of a penny stamp. The information given in the summons to show cause - and there was apparently no further information as to what the Minister decided - would tell the accused nothing as to date. place, circumstances or persons ; it would tell him nothing as to whether he - had been regarded by the Minister asa principal oran accomplice. And,

[387]

next contended that sec. 40 did not apply to the removal from State Courts of summary applications for habeas corpus. The word "cause" is not a technically restricted term. It includes any proceeding competently brought before it and litigated in a particular Court (Green v. Lord Penzance (1) ). In the interpretation of the Judiciary Act "suit" includes any original proceeding between parties and " cause " includes suit (sec. 2). An application for habeas corpus is an original proceeding between the party, aggrieved and the detaining party. This objection, therefore, cannot be sustained. 4 In approaching the applications themselves I preface my opinion with the remarks made by Lord Macnaghten in Vacher & Sons Lid. v. London Society of Compositors (2) : - '* But 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 accordance 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 Parliament, or to pass a covert censure on the Legislature." It is my duty to deal with the facts and law of these cases exclusively from a legal standpoint. The respondent is called upon to justify his detention of the applicants, and the only question for me is whether he has succeeded in making out that justification. - He relies on the Minister's order for deportation, which he asserts is duly made under and in accordance with Commonwealth law. The deportation order is the final link in a chain which begins with sec. 8aa of the Immigration Act. The intermediate links are the Minister's satisfaction that the applicants were concerned in certaitl acts of the legal character described in the section ; a summons 10 show cause by reason of those acts; a hearing by the Board; a - recommendation by the Board that the applicants be deported. Tf any one of those links breaks, the justification fails. I will take each link in order. Sec, 8aa I regard as a valid section under every legislative power possessed by the Commonwealth Parliament. It is avowedly made under the immigration power, but that does not exclude any other power. I should think it ridiculous that

[400]

Court, and in such other Federal Courts as the Parliament creates and in such other Courts as it invests with Federal jurisdiction (Constitution, sec. 71). Federal jurisdiction is simply authority to exercise the judicial power of the Commonwealth. Now, the Constitution (sec. 75) expressly confers upon the High Court certain Federal jurisdiction, and sec. 76 enables the Parliament to clothe it with additional Federal jurisdiction. Sec. 77 enables the Parliament to invest the State Courts with Federal jurisdiction. But what the Parliament can grant, it can take away, wholly or in part, and can subject, at any stage of the proceedings in the State Courts, to any conditions it thinks fit. Further, it can hand over that jurisdiction to the High Court or any other Federal Court, and make the jurisdiction of the Federal Courts exclusive of that which belongs to or is invested in the State Courts (The Constitution, sec. 77). Now, the judicial power of the Commonwealth clearly extends to matters arising under the Constitution or involving its interpretation. And jurisdiction to hear such matters is conferred upon the High Court by sec. 30 of the Judiciary Act. But the Judiciary Act, sec. 39 (1), makes that jurisdiction of the High Court exclusive of the jurisdiction of the several Courts of the States, that is, exclusive of any jurisdiction which belonged to or was invested in them. The provisions of sec. 39 (2) then invest the State Courts with Federal jurisdiction in various matters, including matters arising under the Constitution or involving its interpretation, subject to certain conditions (see Lorenzo v. Carey (1) ). The Judiciary Act, sec. 40, simply provides for the removal from the State Courts in certain cases of any cause or part of a cause arising under the Constitution or involving its interpretation. But as the jurisdiction exercised by the State Courts is, as we have seen, Federal jurisdiction, the provisions of secs. 76 and 77 of the Constitution contain ample authority, in my opinion, for the Parliament to withdraw any matter from that jurisdiction, and remove it into the High Court or any other Federal Court, and to provide for its remission again, as in sec. 42, to the State Courts. I entertain no doubt of the validity of the provisions

[411]

power within the limits of their territorial jurisdiction. But in Australia, which is an example of a Federal form of government, the Parliament of the Commonwealth has only such power as is expressly or by necessary implication vested in it by the Constitution, and, excepting in so far as such powers are vested in the Parliament of the Commonwealth, they remain exclusively vested in the States (Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1)). Again, it is quite true, I think, as is said by Lord HaldaneL.O. in the Sugar Case (2), that "general control over the liberty of the subject"? is not transferred to the national Parliament, Certainly the subjects of the King - whatever the position of aliens may be - cannot be banished or expelled from the Commonwealth without legislative authority for that purpose (cf. Musgrove y, Chun Teeong Toy (3); Walker v. Baird (4); Johnstone v. Pedlar (5) ). Still, the Parliament of the Commonwealth may undoubtedly affect the liberty and rights of the subject by legislation within the ambit of its power (R. v. Halliday; Ex parte Zadig (6) ). There is no doubt, I take it, that the Parliament might prohibit acts interfering with trade and commerce with foreign countries and among the States and punish those acts by fine and imprisonment, and even by internment or expulsion, if it thought fit so todo. Such legislation as that, however, would admittedly involve the use of the judicial power of the Commonwealth. But the Parliament may also use preventive or protective measures for the peace, order and good government of the Commonwealth within the ambit of its powers (cf. R. v. Halliday). And for that purpose it may use both the executive and the judicial power of the Commonwealth. A Court might be authorized to restrain, e.g., the commission of - acts likely to impede or obstruct trade and commerce with foreign - countries or among the States. And so too, in my opinion, the Parliament has ample legislative power to authorize the Executive

[424]

As the Solicitor-General observed, the contents of Acts of Parliament are not classified according to legislative powers, but are often arranged in order to keep allied subjects together or for the convenience of administration. A law enacted by a Parliament with power to enact it, cannot be unlawful. The question is not one of intention but of power, from whatever source derived. No doubt Parliament might explicitly limit a law to the power conferred by a given placitum, and the law would be construed accordingly. But in the absence of some explicit provision, sec. 84a can be justified, in my opinion, if it is competent under any of the powers vested in Parliament, whatever the title of the Act, and whatever indications there are in the Act as to the precise power under which it may be suggested that Parliament purported to act. Turning now to the various sources of power under which the Solicitor-General sought to justify the provisions of sec. 84a, I take first the argument that is based upon the whole legislative power of Parliament. The provisions of sub-sec. 1 of sec. 844 may be discarded from consideration, for they simply provide for the circumstances or conditions in which the section comes into operation. The argument is founded upon the words in sub-sec. 2 " that the presence of that person in Australia will be injurious to the peace, order or good government of the Commonwealth in relation to matters with respect to which the Parliament has power to make laws." Thus if the presence of the person be injurious to the peace of the Commonwealth in relation to a matter in respect of which no law has been made, he may, in certain circumstances, be deported. The Judicial Committee has, in my opinion, expressed the view that such legislation as this, unconnected with the exercise of any specific legislative power, is ultra vires and beyond the power of the Commonwealth Parliament (Sugar Co.'s Case (1) ). But apart altogether from that case, it is, in my opinion, invalid because Parliament has prescribed no controlling rule as to any of the subjects of legislation within its power.

[432]

the Commonwealth after that date. "Once an immigrant always an immigrant" after that date, according to the aphorism of my brother Isaacs in O' Flanagan's Case (1). If the contention be sound, the reasoning of this Court in Potter v. Minahan (2) was singularly inapt. Minahan entered Australia after the establishment of the Commonwealth, and was prima facie an immigrant. But it was contended that he was really a 'constituent part of the community known as the Australian people." At what point of time? The opinion of my brother Isaacs supplies the answer: " Immigration connotes two facts ; the first, that there is an entry into the Common- wealth territory, and the second, that the person entering is not in fact at the moment he enters one of the people of the Commonwealth. The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people" (3). Now here, I think, is foreshadowed a clear principle, namely, that those who "originally associated themselves together to form" the Commonwealth and those who are "afterwards admitted to membership" cannot thereafter, upon entering, or crossing the boundary of, Australia, from abroad, be regarded as immigrating into it unless in the meantime they have in fact abandoned their membership. They have never been within, or else have passed beyond, the range of the power: it has never operated, or else has become exhausted. Of course, conditions may be attached to persons immigrating into Australia, upon entry, and so long as they remain within the range of the power. But the undoubted power of Parliament to pass retroactive laws was pressed upon us. It may, no doubt, provide that immigration laws shall operate from a time past, but how can it make them operate over persons who are beyond the range of the power before the retroactive law ig made? The law is not then, in my opinion, a law with respect to immigration, but a law for bringing again within the field of immigration persons who have passed, and were allowed by law to pass, beyond its borders,

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Judgment (446 paragraphs)

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