Sw py oo Vie Council Ruddock v Civil. ties: for fadarl

Sw py oo Vie Council Ruddock v Civil. ties: for fadarl - [1906] HCA 58 - HCA 1906 case summary — Zoe

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The main point taken for the appellant is that the enactment that a Pacific Island labourer may be deported from Australia is beyond the constitutional powecs of the Commonwealth Parlia- ment, and that therefore this Court ought to refuse to give effect to it. Now, there can be no doubt that, to use the words of the Judicial Committee of the Privy Committee in the case of The Attorney-General for Canada v. Cain and Gilhula (1), decided on 30th July last, "one of the rights preserved by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, or good govern- ment, or to its social or material interests." For that proposition the learned Lord who delivered the opinion of the Privy Council referred to Vattel, Law of Nations, book 1., see. 231; book 11., see. 125. He added later on in the judgment (2): - * The power of expulsion is, in truth, but the complement of the power of exclusion. If entry be prohibited it would seem to follow that the Government which has the power to exclude should have the power to expel the alien who enters in opposition to its laws." It also follows in my opinion equally clearly that, since the supreme power of the State may annex what conditions it pleases to the permission to enter, so it may make it one of those conditions that the residence shall only continue so long as the supreme power thinks fit ; that is, that the permission to the alien to enter may be a conditional permission, so that as soon as the supreme power thinks that it is undesirable that the alien should continue to be within its boundaries, it may order his removal. That power has been rarely asserted in England. It has been legislatively asserted in the two Statutes that Mr. Macgregor cited to us, of which the latter, 45 & 46 Vict. ¢ 45, merely re-enacted temporarily the earlier Act, 11 & 12 Vict. It is said that the existence of the power has been denied by eminent

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was the right or power of the Executive Government, in the Roprenares _ absence of any legislative provision, to exercise what was called panic the prerogative right of the Crown for that purpose. I do not think it ever entered into the minds of any of those eminent persons to deny that it was an essential prerogative of a sovereign State to determine who shall be allowed to come within its dominions, share in its privileges, take part in its government, or even share in the products of its soil. The same doctrine is detinitely established in the United States of America, to whose zx Courts we often in this Court have recourse to assist us in F ascertaining and defining principles of law, especially such as are ; applicable to a federation. I will refer only to the ease of Fong Yue Ting v. United States (1). It is true that the judgment ofthe Court in that case was not unanimous, but with the doctrine 3 stated in the passages to which I have to refer the dissenting Judges do not disagree. The difference of opinion was as to the applicability of this doctrine to the facts of the particular case. In the earlier case of Chae Chan Ping v. United Stutes (2) the validity of a former Act of Congress, excel Chinese labourers from the United States, under the cireu ices therein stated, had been affirmed by the Supreme Court. The following passages were read from the judgment of the Court in that case, and adopted, and I think they may be taken to lay down the accepted law of the United States of America. The first passage is (3) - "Those labourers are not citizens of the United States; they are aliens. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to con- troversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power." And, again, quoting from the same decision (4): - * To preserve its independ- : ence, and give security against foreign aggression and encroach-

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ment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the oceasion on which the powers shall be called forth ; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. If, therefore, the govern- ment of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases, its determination is conclusive upon the judiciary. If the government of the country of which the foreigners excluded are subjects is dissatisfied with this action, it can make complaint to the executive head of our government, or resort to any other measure which, in its judgment, its interest or dignity may demand ; and there lies its only remedy. The power of the government to exclude foreigners from the country, whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments." The Court then referred to a later case, Nishimura Ekiw vy. United States (1), in which the Supreme Court expressed the doctrine in these words : - ' It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe." The Court went on

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was dealt with in the judgment of the Privy Council, as follows (1) : - " But as it is conceded that by the Law of Nations the supreme power in every State has the right to make laws for the exclusion or expulsion of aliens, and to enforce those laws, it necessarily follows that the State has the power to do those things which must be done in the very act of expulsion, if the right to expel is to be exercised effectively at all, notwith- standing the fact that constraint upon the person of the alien outside the boundaries of the State or the commission of a trespass by the State officer on the territories of its neighbour in the manner pointed out by Mr. Justice Anglin in his judg- ment should thereby result." Their Lordships then referred to the case of In re Adam (2), decided by the Judicial Committee of the Privy Council in 1837, in which it was held that this sovereign power was vested in the Governor of the Island of Mauritius, although, of course, a person could not be deported from that island without involving his imprisonment on board the ship that took him away. The actual question in that case was whether power had been delegated by the Sovereign to the Governor, or the Executive authority of the Island of Mauritius. According to French law, which was in force in the Colony, it had been delegated to them, and, therefore, there was no question of the absence of sufficient legislative enactment. By the French law the Governor was authorized, without further legislative enactment, to take the necessary steps for deportation, except as to the difficulty of extra-territorial restraint. The material part of the judgment is as follows (1) : - * The question, therefore, for decision in this case resolves, itself into this: has the Act 60 & 61 Vict. ¢. 11, assented to by the Crown, clothed the Dominion Government with the power the Crown itself heretofore un- doubtedly possessed to expel an alien from the Dominion, or to deport him to the country whence he entered the Dominion ? Tf it has, then the fact that extra-territorial constraint must necessarily be exercised in effecting the expulsion cannot invalidate the warrant directing expulsion issued under the

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provisions of the Statute which authorizes the expulsion." Applying those principles to the present case we are bound to hold that the Pacific Island Labowrers Act 1901, assented to by the Crown, has clothed the proper authorities of the Common- wealth with the power, which the Crown itself undoubtedly pos- sesses in its right of sovereignty, to expel this appellant from the Commonwealth. It is true that the learned Lord who delivered the judgment of the Board in Cain and Gilhula's Cause used the expression "deport him to the country whence he entered the Dominion," but it is clear that that cannot be the limit of the power, The deporting State has no authority beyond its own borders. All it can do is to extrude the alien. What becomes of him afterwards is for him, not for them. It may be that it would be unreasonable to take him against his will tosome place which is not his own home, but the remedy must be sought elsewhere. I gave an instance in the course of the argument of the case of an alien, whom, for instance, the Swiss Confederation desired to expel from Switzerland. Suppose he was a Russian, or an Englishman, or a Spaniard, it is quite clear that they would have no authority to convey him through the territories of neighbouring powers to his original home. But that they have power to expel him from Switzerland is beyond all doubt; what happens to him afterwards is a matter to be considered on other grounds. I am, therefore, of opinion, on the authority of this decision, that the Commonwealth had power to pass this Act; that the justice who gave the adjudication had power to order the appellant's deporta- tion ; and that the deportation will be lawful. What will happen afterwards, where he will be taken, and under what circumstances, are matters that must be determined by other authorities, but I think it will be found that the law of the Empire sufficiently provides for the safety of Pacific Islanders who are being carried on the waters of the Pacific Ocean.

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Lordships said (1) : - «The questions, therefore, left for the con- sideration of their Lordships were, first, whether an alien friend could, by the law of the Island, be removed by the Executive Government at its pleasure, without conviction for any offence. And, secondly, whether the circumstances attending Mr. Adam's settlement and residence in the Island entitled him to any exemp- tion." On the next page the judgment proceeds : - * That the supreme power of every State has a right to make laws for the exclusion or expulsion of a foreigner was not questioned. This Vuttel admits as a universal principle, book 1. ¢. 8, sec. 100; he says, 'Since the lord of the territory may, whenever he thinks proper, forbid its being entered (sec. 94), he has, no doubt, the power to annex what condition he pleases to the permission to enter ; this, as we have already said, is a consequence of the right of domain." This authority is supported by a quotation from another international writer, Merlin, in his Repertoire de Juris- prudence, and a long passage of that author is stated in English on page 473 in these words: - "That is to say, that though the tacit acquiescence of the Government, in the continued residence of a foreigner within the French dominions, would not deprive the Gov- ernment, of its inherent prerogative to order him to quit the coun- try, at a moment's notice; yet,nevertheless, that the stranger might, by such unauthorized residence, acquire a domicile for all judicial purposes, taking it as a proposition too clear even for discussion, that a stranger domiciled in France, without express authority of the Government, might be ordered out of the country whenever the Government though fit to interfere." And their Lordships reported to Her Majesty their opinion : - " First, that the status of Mr. Adam was that of an alien friend. Secondly, that the legal right incidental to such status, had not been infringed by Mr. Adam's removal from the Mauritius." So, notwithstanding the very clear hardship of the case, it was necessary for their Lord- ships, and it will be necessary for us here, to assert the law upon the subject. Now reference was made - I am sorry I must allude to it again - to an important case lately decided in the Judicial Com- mittee of the Privy Council - The Attorney-General for Canada v. Cain and Gilhula (2). That decision was delivered as late as 30th

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July last. There had been a contravention of the Alien Labowr Aci of Canada, which contained a section making it unlawful "for any person, company, partnership, or corporation, in any manner to prepay the transportation, or in any way to assist or encourage the importation or immigration of any alien or foreigner into Canada, under contract or agreement, parole or special, express or implied, made previous to the importation or immigration of such alien or foreigner, to perform labour or service of any kind in Canada." And in the case of an immigrant being allowed to land in Canada contrary to the provisions of the Act, it is enacted : - " The Attorney-General of Canada, in ease he shall be satisfied that an immigrant has been allowed to land in Canada contrary to the prohibition of this Act, may cause such immigrant, within the period of one year after landing or entry, to be taken into custody and returned to the country whence he came, at the expense of the owner of the importing vessel, or, if he entered from an adjoining country, at the expense of the person, partner- ship, company, or corporation violating section I. of this Act." There was a limitation of the Act to the case of countries adopting similar provisions against the immigration of Canadian subjects. Under that law two persons, whose rights were in question, were arrested for contravention of the Act, having come into Canada contrary to its prohibition. They sued out a habeas corpus and they were afterwards released by order of Anglin J., one of the Judges of the Supreme Court of the Province of Ontario. Among his reasons is this rather striking passage. His Honor said (1): " Again, counsel suggests that the officer may select such a point as Windsor for the deportation, and may discharge his duty by placing his alien prisoner upon a ferry boat crossing the river to Detroit. Here the alien is upon Canadian territory until the middle of the stream is reached. If the custody ceases when the alien is placed on the ferry boat it cannot be said that he is returned to the United States by the officer charged with the execution of the warrant. If the custody continues until the ferry boat reaches mid-stream - apart from the difficulty of deter- mining the precise moment at which the boat crosses the imaginary line beyond which any constraint by Canadian authority is (1) 22 T.L.R., 757, at p. 758.

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admittedly unwarranted and the danger of an involuntary viola- tion of United States territory - it is impossible to say that the deported subject is not under actual constraint imposed by Canadian authority until the boat reaches the Detroit docks, He is upon the ferry boat not of his own volition, but because Canadian power has placed and kept him there. In theory his imprisonment may cease at the instant his body is carried over the border ; in fact, he is carried, not to the border, but to the City of Detroit in United States territory by compulsion of Canadian law." That is the strongest and most extreme illustra- tion given in the judgment. At the same time, it brings the question completely to the test. The Privy Council reversed that judgment, and allowed the appeal of the Attorney-General of Canada, practically on the ground that, once itis established that there is a right to legislate for deportation, that right confers everything, without which, its exercise would become nugatory, and consequently if extra-territorial restraint is necessary, the degree of restraint absolutely necessary for the purpose of making the deportation of effect is justifiable. In the judgment of Lord Atkinson, I find one or two passages that I wish to read(1). "It was conceded," said his Lordship, " in argument before their Lord- ships, on the principle of law laid down by this Board in the case of MacLeod v. Attorney-General for New South Wales (2) that the Statute must, if possible, be construed as merely intending to authorize the deportation of the alien across the seas to the country whence he came if he was imported into Canada by sea, or if he entered from an adjoining country, to authorize his expulsion from Canada across the Canadian frontier into that adjoining country. The judgment of the learned Judge was, in effect, based upon the practical impossibility of expelling an alien from Canada into an adjoining country without such an exercise of extra-territorial constraint of his person by the Canadian officer as the Dominion Parliament could not authorize. No special significance was attached to the word 'return. The

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the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and, to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, or good government, or its social or material interests (Vattel, 'Law of Nations, book 1, see. 231; book IL, sec. 125). The Imperial Government might delegate those powers to the Governor or the Government of one of the Colonies, either by Royal Proclamation which has the force of a Statute (Campbell v. Hall (1), or by a Statute of the Imperial Parliament, or by the Statute of a local Parliament to which the Crown has assented. If this delegation has taken place, the depositary or depositaries of the executive and legislative powers and' authority of the Crown can exercise those powers and that authority to the extent delegated as effectively as the Crown could itself have exercised them." Then there is the further passage: - * The question, therefore, for decision in this case resolves itself into this: has the Act 60 and 61 Vict. e. 11, assented to by the Crown, clothed the Dominion Government with the power the Crown itself heretofore undoubtedly pos- sessed to expel an alien from the Dominion, or to deport him to the country whence he entered the Dominion? If it has, then the fact that extra-territorial constraint must necessarily be bxercised in - effecting the expulsion cannot invalidate the warrant directing expulsion under the provisions of the Statute which authorizes the expulsion." This is what we are entitled to regard as the law in England with reference to the powers exercised by a self-governing part of the Empire, upon its passage of a Statute for purposes within its legislative powers; and although I have drawn attention to the reasoning of Anglin J. as to the degree of restraint which in his judgment was necessary for the exercise of the power beyond the Canadian border, which degree of restraint he held to be without extra-territorial validity, the judgment of the Privy Council seems to me to have decided that the degree of restraint necessary to render the deportation effective is permissible and justifiable for

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nations, both in peace and war. A memorable example of the exercise of this power in times of peace was the passage of the alien law of the United States in the year 1798. In 1869 Mr. Fish wrote: 'The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State, are too clearly within the essential attributes of sovereignty to be seriously contested.' Wharton's International Law: Digest, sec. 206 (1). The statements of leading commentators on the law of nations are to the same effect. Vuttel says: 'Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner.' 'Thus, also, it has a right to send them elsewhere, if it has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances, or occasion any other disorder, contrary to the public safety. In a word, it has a right, and is even obliged, in this respect, to follow the rules which prudence dictates." That is equi- valent to a general rule irrespective of the question of express Statute. Whether expulsion in Great Britain or in one of her self-governing Colonies or States, requires statutory authority has, no doubt, been the subject of some hesitation on the part of eminent lawyers, but it is not necessary for us to decide that question. It does not arise. The question here is, first, whether the statutory authority exists,and next, whether it has been properly exercised? Now, in the Encyclopaedia of the Laws of England, vol. 5, p. 268, there are a few lines that state that question very clearly : - " There are dicta of Blackstone (1 Com. 366) and Chitty (Pleas of Crown ed. 1820 p. 49) to the effect that the Crown, by its prerogative, can expel even alien friends; but there does not seem to have been any attempt since the Revolution to exercise such prerogative, and the extrusion of alien friends has since then always been effected by statutory

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authority." The question to-day is one of statutory authority. H.-C. oF A. Has the Commonwealth power to legislate in this connection ? set It is not necessary, I think, to determine that question upon any Rovrenses notion of absolutely inherent right in the Commonwealth, because pat vay, there are powers given under the Constitution, which have been referred to in argument, and which seem to me sufficient to cover the matter. Those are the powers - particularly with reference to aliens - in the 19th sub-section of sec. 51, and also possibly the power in sub-sec. 26, and I think much more clearly the powers as to immigration and external affairs in paragraphs 27 and 29. As to three of those powers I am of opinion that they may be well exercised by legislation of this kind and that as, under the decision of the Privy Council in Hodge v. The Queen (1), the powers given are plenary within their ambit, it is within these powers to pass legislation, however harsh and restrictive it may seem, and as to that it is not the province of a Court of Justice to inquire, where the law is clear. This legislation, I think, is perfectly competent within the meaning of three at least of those four powers. 'The right to deport is the complement of the right to exclude ; the right to exclude is involved in the right to regu- late immigration. 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. Equally undeniable is the right to legislate with respect to aliens, and as to the power of external affairs, just like the others, the : authority to legislate, as I think, also exists, and it is possible to legislate effectively under that power with respect to the exclu- sion or deportation of subjects of other powers, always premising that the legislation for the purpose is assented to by the Crown, and becomes the proper exercise of delegated authority. I think that, if the power to legislate exists with respect to the conditions of entry or residence of the subjects of civilised powers, it would be idle to attempt to deny that it is also included with respect to Pacific Islanders. I am of opinion, therefore, that the Com- monwealth has power to legislate in this connection. Now, as to the section which has been brought in question here, I will refer to the judgment in the case of Li Sing v. United

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States (1), where after quoting and adopting the judgment in the ease of Fong Yue Ting v. United States (2) the Court says : - "The order of deportation is not a punishment for acrime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punish- ment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority, and through the proper departments, has determined that his continuing to reside here shall depend." Now, looking again at sec. 8 of the Pacific Island Labourers Act 1901, power is given there to bring before the Court for a finding of fact a person whom the officer reason- ably supposes not to be employed under an agreement; and when the Court is satisfied that he is not so employed, authority to deport is given. That seems to me a section describing, in the sense of the passage which I have just quoted, which I think one must adopt as a matter of reason, the conditions on which con- tinued residence, at any rate up to the end of 1906 when different conditions arise, is to depend. It is clear that the ultimate return of the islander to his own country in the manner in which it has been contemplated by this Act, has been equally in view in the legislation of Queensland before federation. If one looks to the Pacific Islanders Act 1880, to which I have referred during the argument, or to the Act of 1892, one sees that the return is a matter that the legislature of Queensland has provided for in unchallenged laws, which have been the foundation of the Commonwealth legislation. I say that that is a matter on which the Parliament of Queensland has properly legislated, and in the 5th section of the Act of 1892 we find that, on the expiration of the engagement of a labourer, his employer shall be bound to maintain him until he has an opportunity of return- ing to his native land, or enters into a fresh agreement with the same or some other employer to serve in tropical or semi-tropical agriculture. So there seems to be permission to enter into an engagement, but failing an engagement he is required to return, That is the spirit of the legislation of Queensland, and that (1) 180 U.S., 486, at p. 494. (2) 149 U.S., 698.

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had before federation established a code of laws regulating the introduction of Pacific Island labourers. Their introduction into Queensland was allowed under those Jaws only and under a set form of licence. They were allowed to be engaged only for a special kind of labour. Special provision was made with regard to their employment, and enabling them, if they wished, to take their passages back to their own islands at the end of their engage- ments. That Act contained no power of compulsorily deporting them from Queensland. Those Acts in the different States dealing with aliens remained in force under the State Constitutions until the Parliament of the Commonwealth entered the same field of legislation, and in regard to Pacific Islanders the Commonwealth legislated by the Act which is now under consideration. The only section which it is necessary for us to interpret is sec. 8. Now that section went beyond previous legislation of the Aus- tralian Colonies, in this respect only, it gave power to deport Pacific Islanders from Australia under the circumstances which are there set out. It provided that before 31st December 1906 an officer of the Government might invoke the decision of a Court of summary jurisdiction with regard to the question whether the islander was or was not employed under an agreement, and, if the Court decided that he was not so employed, it might make an order to deport him, and he was to be deported accordingly. It further provided that after that date the Minister of his own motion might order a Pacific Islander then found in Australia to be deported, and thereupon he should be deported accordingly. Both of those powers rest exactly upon the same foundation. The power in the Minister is precisely the same as that of the Minister under the Canadian Labourers Act which was the subject of the decision in the case of the Attorney-General for Canada v. Cain and Gilhula (1), but in this case we have only to deal with the power of the magistrate to order deportation. The question for our consideration is whether the power to legislate with regard to aliens and to immigration, given to the Commonwealth Parlia- ment under the Constitution, includes the power to deport an alien under such circumstances as the Commonwealth Parliament may think fit to enact? Now, as to the main body of the con-

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the power to deport them, the matter has been placed beyond controversy by the decision in the case of the Attorney-General for Canada v. Cain and Gilhwla (1), already so fully quoted by my learned brothers. It is impossible after that decision to question the right to deport, at least in so far as deportation consists in sending back the alien to the place from where he came. Mr. Stumm's first point in his able argument was that, although there was a power to exclude aliens or impose the con- ditions under which they might be admitted, and although there was a power to deport to the State from where they came, there was no power to deport them generally. Now, whether or not there is a power to deport generally depends upon the application of a few very simple principles. It is beyond question that when « legislative power is once given to a self-governing community, that power, within its limits, exists to the amplest extent necessary for the purpose of making it effective. That was decided in several cases referred to by Mr. Maegregor - particularly in Powell v. Apollo Candle Co. (2), and also in Hodge v. The Queen (3). In the latter case a question arose as to the powers of provincial legislation under the British North America Act - whether the exercise of that power, to the extent exercised, was justified, and in regard to that the Privy Council made these observations (4): - "When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make Jaws for the Province and for provincial purposes in relation to the matters enumerated in sec. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sec. 92 as the Imperial Parliament in the plentitude of its power possessed and could bestow. Within these limits of subjects and area the local legis- lature is supreme, and has the same authority as the Imperial Parliament." In the case of D''Hmden v. Pedder (5), the same

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