HIGH COURT OF AUSTRALIA

                                             Ex parte Walsh & Johnson

                               (Knox C.J., Isaacs, Higgins, Rich and Starke JJ.)

                                                 18 December 1925

Knox C.J.

The applicant in each case is detained in custody pending deportation in pursuance of an order made
under sec. 8AA of the Immigration Act 1901-1925, and the question for decision is whether such
detention is lawful.

Each applicant having obtained in the Supreme Court of New South Wales a rule nisi calling on the
respondent Robert Walter Yates, the person in whose custody he was detained, to show cause why a
writ of habeas corpus should not issue, an order was made in each case by this Court, on the
application of the Attorney-General of the Commonwealth, removing the cause into this Court in
pursuance of sec. 40 of the Judiciary Act. On the motions to make absolute the rules nisi coming on
in this Court, counsel for the applicants submitted that this Court had no jurisdiction to entertain the
matter and, in the alternative, that the order for removal ought to be rescinded. I have had the
advantage of considering the opinion about to be expressed by my brother Starke on the questions
so raised, and agree with him both in his conclusions and in the reasons by which they are
supported. It is therefore unnecessary for me to deal further with them.

The preliminary questions being disposed of, it remains to consider whether the rules nisi should be
made absolute.

The legality of the detention of the applicants was challenged in this Court on a number of grounds,
some of which imputed bias, mala fides and improper conduct to the members of the Board in
connection with the proceedings before it. Ultimately these grounds were abandoned by counsel for
the applicants; but, the charges having been made, I think it right to say that in my opinion there
was no shadow of justification for making the imputations referred to, and they should never have
been made. I desire to say further that, having had the opportunity of reading the transcript of the
proceedings before the Board, I have come to the conclusion that the members of the Board showed
admirable patience and self-restraint, having regard to the conduct of counsel before them, which
fell lamentably short of the standard which ought to, and generally does, regulate the conduct of
members of the Bar. Apart from these matters counsel for the applicants rested their case mainly on
the contention that sec. 8AA of the Act was beyond the powers of the Parliament. It was pointed out
by Viscount Haldane, in delivering the opinion of the Judicial Committee in Attorney-General for
the Commonwealth v. Colonial Sugar Refining Co.[1], that the necessity for considering this
question arose from the Federal nature of the Constitution and from the express provisions of secs.
51 and 107 of that instrument. In this case, as in that[2], "the burden rests on those who affirm that
the capacity to pass" this law "was put within the powers of the Commonwealth Parliament to show
that this was done." Sec. 8AA is in the words following:--"(1) If at any time the Governor-General
is of opinion that there exists in Australia a serious industrial disturbance prejudicing or threatening
the peace, order or good government of the Commonwealth, he may make a proclamation to that
effect, which proclamation shall be and remain in force for the purposes of this section until it is
revoked by the Governor-General. (2) When any such proclamation is in force, the Minister, if he is
satisfied that any person not born in Australia has been concerned in Australia in acts directed
towards hindering or obstructing, to the prejudice of the public, the transport of goods or the
conveyance of passengers in relation to trade or commerce with other countries or among the States,
or the provision of services by any department or public authority of the Commonwealth, and 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, may, by notice in writing, summon the person to appear before a Board, at the time specified
in the summons and in the manner prescribed, to show cause why he should not be deported from
the Commonwealth. (3) Sub-sections 2, 3 and 4 of section eight a of this Act shall apply in relation
to the Board mentioned in the last preceding sub-section." Sub-secs. 2, 3 and 4 of sec. 8A of the Act
are in the words following:--"(2) A Board appointed for the purpose of the last preceding sub-
section shall consist of three members to be appointed by the Minister. (3) The Chairman shall be a
person who holds or has held the office of Judge, or Police, Stipendiary or Special Magistrate. (4)
(a) If the person fails to appear at the time specified in the summons to show cause why he should
not be deported, or (b) the Board recommends that he be deported from the Commonwealth, the
Minister may make an order for his deportation."

Sub-sec. 1 of sec. 8AA may be excluded from consideration, no question having been raised as to its
validity. The first step towards determining whether the law contained in sub-sec. 2 is valid is to
ascertain the meaning of the words in which it is expressed and the object or effect of the enactment.
Read according to ordinary rules of grammar, sub-sec. 2 applies only to persons not born in
Australia, and provides that, if the Minister is satisfied (a) that any such person has been concerned
in certain acts, and (b) that such acts were directed towards hindering or obstructing certain
operations, and (c) that such hindrance or obstruction was to the prejudice of the public, and (d) that
the operation to the hindrance or obstruction of which the acts were directed consisted of either (1)
the transport of goods or the conveyance of passengers in relation to trade and 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 Australia in respect to some matter and (f) that Parliament has
power to 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 been concerned in such acts, he may be
removed from Australia in order to prevent an apprehended injury to the peace, order or good
government of the Commonwealth in relation to matters not necessarily connected in any way with
the class of acts in which he is found to have been concerned. A law containing no provisions other
than those contained expressly or by reference in sec. 8AA would, I think, be correctly described as
an Act to authorize the deportation of persons not born in Australia whose presence in Australia will
in the opinion of the Minister be injurious to the peace, order or good government of the
Commonwealth in relation to any matter with respect to which the Parliament has power, in his
opinion, to make laws.

The Solicitor-General contended that this enactment was a valid exercise of one or more of the
following powers of the Parliament: (1) The power to make laws with respect to immigration and
emigration (sec. 51 (XXVII.)); (2) the power to make laws with respect to trade and commerce with
other countries or among the States (sec. 51 (I.)); (3) the power to make laws with respect to matters
relating to the public service (sec. 52 read with sec. 61); (4) the power to make laws with respect to
matters incidental to the execution of any power vested by the Constitution in the Parliament or in
the Government of the Commonwealth or in any department or officer of the Commonwealth (sec.
51 (XXXIX.) read with sec. 61); (5) the power to make laws with respect to all the matters with
respect to which the Parliament is empowered by the Constitution to make laws. It will be
convenient to consider the several powers invoked in the order in which I have stated them.

(1)

Immigration and Emigration.--In my opinion, the validity of the law as an exercise of this power is
established by the decision in the Irish Envoys' Case (R. v. Macfarlane; Ex parte O'Flanagan and
O'Kelly[3]). In that case it was held that sec. 8A of the Act was a valid exercise of the power. Sec.
8A purports, as does sec. 8AA, to confer on the Minister authority, if he be satisfied of the existence
of certain specified facts, to deport from the Commonwealth persons not born in Australia. I agree
with the opinion expressed by my brother Starke in that case, that sec. 8A is aimed at and hits
immigrants and not members of the Australian community, and that it should not be construed as
extending to persons who had made their homes in Australia and become part of its people, and that
its validity as a law with respect to immigration depends on this conclusion. No reason exists for
attributing to the expression "person not born in Australia" used in sec. 8AA a meaning different
from that given in the case under notice to the expression "person who was not born in Australia" in
sec. 8A of the same Act; and it follows that, sec. 8A having been held to be a valid exercise of the
power to make laws with respect to immigration because its operation is limited to persons coming
into or already in Australia who have not become members of the Australian community, sec. 8AA,
the operation of which is limited to the same class of persons by words indistinguishable from those
used in sec. 8A, is also a valid exercise of that power. But the constitutional validity of the
enactment depends on its operation being so limited, and it thus becomes necessary to consider
whether either of the applicants is a person within the scope of the power to make laws with respect
to immigration.

The power undoubtedly extends to every person who is, at the relevant time, an immigrant, that is to
say, a person coming into Australia who is not at the time of entry a member of the Australian
community. If the question be whether he is entitled to enter Australia, the question for decision is
whether at that time he is not a member of the Australian community and is therefore subject to the
immigration power. If the question be whether he is entitled to remain in Australia, or, stated
otherwise, whether he may be lawfully expelled from Australia under a law made under the
authority of this power, and of this power only, the question for decision is whether he is, at the time
when it is sought to expel him, a person who is not a member of the Australian community and who
is therefore subject to the immigration power. On any given day any person either is or is not a
member of the Australian community. If on a given day a person seeking to enter Australia be
exempt from the operation of a law made under this power purporting to prohibit his admission, he
cannot, in my opinion, be on that day subject to the operation of a law made under the same power
purporting to authorize his expulsion. The liability of any person to inclusion within the ambit of
this power so that he may be subject to the 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[4] 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 (XXVII.) 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 Commonwealth 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[5]:--"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 was in Australia. My brother Isaacs, dealing with sec. 51 (XXVII.) of the Constitution,
said[6]:--"Immigration connotes two facts; the first, that there is an entry into Commonwealth
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." And he says[7]: "There is not, in my opinion, any proper test but this
practical one, namely, whether the whole of the facts show that at the moment of entry the person
desiring to be admitted is fairly to be considered as one of the people of the Commonwealth, and
whether, notwithstanding any personal absence from Australia, he can justly and in substance claim
to regard this country as a place of habitation or general residence which he had never abandoned."
On the facts of that case he thought that the respondent was not in truth and in fact a portion of the
people of the Commonwealth as an ordinary reasonable person would understand the matter, and
that therefore he was subject to the immigration power. My brother Higgins thought the test of
whether the respondent was an immigrant was: Where was the respondent's home during the
twenty-five years preceding his return to Australia? It seems to me to follow from the opinions
expressed in that case, that a person who has originally entered Australia as an immigrant may, in
course of time and by force of circumstances, cease to be an immigrant and becomes a member of
the Australian community. He may, so to speak, grow out of the condition of being an immigrant
and thus become exempt from the operation of the immigration power. The power to make laws
with respect to immigration would, no doubt, extend to enable Parliament either to prohibit
absolutely or to regulate as it might think fit immigration into Australia, but, in my opinion, it does
not extend to enable Parliament to prohibit or regulate anything which is not immigration, and the
decision in Potter v. Minahan[8] shows that, when the person seeking to enter the Commonwealth is
a member of the Australian community, his entry is not within the power to make laws with respect
to immigration. I agree with the opinion expressed by my brother Starke in R. v. Macfarlane[9] that
Parliament has authority under this power to expel or deport from the Commonwealth any person
who does not belong to the people of Australia, but I can find no reason for extending that authority
so as to include within the scope of this power persons who have become members of the Australian
community.

The relevant circumstances in relation to the question whether either of the applicants is an
immigrant--or, more properly, a person within the operation of a law validly made under this
power--are as follows:--The applicant Walsh was born in Ireland in 1871, and in the year 1893 he
became a resident of and domiciled in the State (then Colony) of New South Wales, where he has
ever since had, and still has, his permanent home, except for a period during which his home was in
the State of Victoria. Since 1893 he has never had a home outside Australia. The applicant Johnson
was born in Holland in 1885, and in the year 1910 came to reside in the State of New South Wales.
In the year 1913 he became naturalized under the law of the Commonwealth. Ever since 1910 he
has had, and still has, his permanent home in New South Wales, and, so far as appears, he has never
been out of Australia since his arrival in the year 1910. With regard to both applicants I think it is
impossible to maintain, consistently with the reasoning in Potter v. Minahan[10], that he is an
immigrant and not a member of the Australian community. It seems to me to follow from that
decision that, if either applicant were now seeking to enter the Commonwealth on his return from a
visit abroad, a law relating to immigration and depending on the immigration power alone could not
be held to apply to him. If this be so, I am unable to see how a law made under the same power can
be held to apply to him so as to authorize his expulsion from the Commonwealth. In this view the
provisions of sec. 8AA, if that section be regarded as a valid exercise of the power to make laws
with respect to immigration and of that power only, do not operate in respect of either applicant.

It was suggested, somewhat faintly, that the section was an exercise of the power to make laws with
respect to emigration. "Emigration," it was said, included the involuntary removal of persons from
the Commonwealth, and therefore the power to make laws with respect to emigration covered laws
providing for deportation. In my opinion, the compulsory deportation of a citizen from the
community to which he belongs cannot, consistently with the ordinary use of language, be described
as emigration.

It follows from what I have said that, if the detention or deportation of either applicant is to be
justified under sec. 8AA, the validity of that section must be supported by reference to some
legislative power other than the power to make laws with respect to immigration and emigration,
and it is therefore necessary to consider whether the enactment can be sustained as a valid exercise
of any of the other powers of legislation conferred on the Parliament by the Constitution.

(2)

The next question is whether the section can be supported as a valid exercise of the power to make
laws with respect to trade and commerce with other countries and among the States (sec. 51 (I.)).
The argument of the Solicitor-General on this point, as I understood it, was founded on the
provision which requires, as one of the alternative conditions on which the section may be brought
into operation, that the Minister shall be satisfied that the person sought to be dealt with under it has
been concerned in acts directed towards hindering or obstructing the transport of goods or
conveyance of passengers in relation to trade or commerce with other countries or among the States.
It was argued that this provision should be construed as meaning that, while the opinion of the
Minister was conclusive on the question whether the person proposed to be deported had been
concerned in acts directed towards hindering or obstructing to the prejudice of the public the
transport of goods or conveyance of passengers, it was necessary, in order to bring the section into
operation, that such transport or conveyance should be in law and in fact, and not merely in the
opinion of the Minister, "in relation to trade or commerce with other countries or among the States."
It was contended that, so construed, the enactment was a law with respect to trade and commerce
with other countries and among the States. In my opinion, neither proposition can be sustained. It
was not, and, in my opinion, could not reasonably be, denied that the intention expressed was that
the opinion of the 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
Commonwealth, 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 hold otherwise would be to empower Parliament to disregard at will the
limitations imposed by the Constitution on its power to make laws. If authority be needed for this
proposition, it will be found in the opinion of the Judicial Committee in Attorney-General for the
Commonwealth v. Colonial Sugar Refining Co.[11], where Viscount Haldane said:--"Their
Lordships are called on to interpret the legislative compact made between the Commonwealth and
the States, and they have to determine on the language of the statute what rights of legislation the
federating colonies declared to be reserved to themselves. It is clear that any change in the existing
distribution of powers has been safeguarded in such a fashion that on a point such as that before the
Board the Commonwealth Parliament could not legislate so as to alter that distribution merely of its
own motion." For these reasons I think the law under discussion cannot be said in any proper sense
of the words to be a law with respect to trade and commerce with other countries and among the
States. The most that can be claimed for it is that one of the alternative conditions on which it may
come into operation is that the Minister is satisfied that some acts have been done with the intention
of hindering or obstructing operations which, in his opinion, are within the ambit of that power.

But, even if the sub-section be construed in the manner suggested by the Solicitor-General, it is not,
in my opinion, a valid exercise of the trade and commerce power. Omitting, for the sake of
clearness, words not relevant in considering this question, the sub-section reads as follows:--"The
Minister, if he is satisfied that any person has been concerned in Australia in acts directed towards
hindering the transport of goods (provided such transport is in relation to trade or commerce with
other countries or among the States) and that the presence of such person in Australia will be
injurious 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, may order such person to be deported
from the Commonwealth." The question to be determined is: Is this a law with respect to trade and
commerce with other countries or among the States? I agree with the Solicitor-General that the
nature of the law is preventive and not punitive. It is aimed at 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 the States," or to prescribe any
rule of conduct for any person engaged in such trade and commerce. The real aim and object of the
enactment is to authorize the Minister to deport from the Commonwealth any person whose
presence in Australia will, in his opinion, be injurious to the peace, order or good government of the
Commonwealth in relation to any matter with respect to which the Parliament has power to make
laws. An Act with this as its only real aim and object, having no connection with foreign or inter-
State trade or commerce beyond that which I have indicated, cannot, in my opinion, consistently
with the use of words in their ordinary meaning, be described as an Act with respect to trade and
commerce with other countries and among the States. It follows that it is not a valid exercise of the
power conferred by sec. 51 (I.) taken by itself and apart from other powers of legislation conferred
by the Constitution.

(3)

By a similar line of reasoning to that which I have applied in considering the question whether the
section is a valid exercise of the trade and commerce power, I arrive at the conclusion that it is not a
valid exercise of the power of the Parliament to make laws with respect to public service conferred
by sec. 52 of the Constitution, whether that section be looked at alone or in conjunction with sec.
61.

(4) and (5)

The question whether the section is a valid exercise of all the legislative powers of the
Commonwealth may conveniently be considered with the question whether it is a valid exercise of
the power conferred by sec. 51 (XXXIX.) of the Constitution read in conjunction with sec. 61. In
my opinion, both these questions are covered by the opinion of the Judicial Committee in Attorney-
General for the Commonwealth v. Colonial Sugar Refining Co.[12]. It is clear, from the words of sec.
8AA, that the power which it purports to confer on the Minister extends to cases in which he may
apprehend injurious results in relation to matters in respect of which the Parliament has not yet
made and perhaps never will make any law whatever, and as to which the Executive has not and
never may have any duties to perform, and that it is not restricted to matters in respect of which
laws have been made. That is to say, the power to deport is given where the injury apprehended
relates to a merely possible 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 authoritatively 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 (XXXIX.), 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"[13]. I add that, if the true view of the meaning 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.
For these reasons I am of opinion that sec. 8AA is a valid exercise of the power to make laws with
respect to immigration, but that it is not a valid exercise of any other power to make laws conferred
on the Parliament by the Constitution. As the applicants are, in my opinion, persons to whom the
operation of the section, construed as a valid exercise of the immigration power, does not extend, it
follows that, in my opinion, no lawful cause is shown for the detention of either of them, and the
rule nisi in each case should be made absolute.

Isaacs J.

These cases, both in their preliminary and in their later stages, are of the highest constitutional
importance. I feel bound to acknowledge the great assistance I have received from learned counsel
on both sides. Opposing views were presented with marked ability. If it is permissible to
particularize, without in the least detracting from the valuable efforts and co-operation of other
learned counsel, I would like to refer specially to the arguments, profound, lucid and illuminating,
and, what is always desirable, urged with utter candour, by the learned Solicitor-General on one side
and Dr. Evatt on the other, upon difficult and involved constitutional principles. The responsibility
of interpreting the Constitution, always great, was materially lightened for me by their expositions,
the indebtedness I feel being by no means measured by the ultimate conclusions at which I have
arrived.

(1) Preliminary Objections.--The orders for removal of the applications for habeas corpus from the
Supreme Court to this Court were made ex parte on behalf of the Attorney-General of the
Commonwealth. On the return of the orders, Dr. Evatt, for Thomas Walsh, one of the applicants,
raised several objections against the removal, and asked that the ex parte orders be set aside. These
objections, being reasons why the Court should not enter upon the consideration of the applications
themselves, had to be dealt with first. The Court overruled them, leaving its reasons to be stated
later. The objections taken were important, some of them of an inter se nature. Though unable to
yield to any of them, I am reminded of Lord Selborne's observation in Green v. Lord Penzance[14],
that the zeal and ingenuity of counsel are never misplaced when exerted for the defence of personal
liberty.

It was first contended that sec. 40 is invalid, because it neither defined nor invested jurisdiction. In
my opinion, it does both. Sec. 39, after primarily excluding by sub-sec. 1 all remaining jurisdiction
of State Courts where the High Court has jurisdiction--a process which takes away under sec. 77
(II.) of the Constitution the jurisdiction which belonged to the State Courts--proceeds by sub-sec. 2
to invest State Courts under sec. 77 (III.) with Federal jurisdiction, subject to appeal to this Court.
But it is part of the public history of Australia that in order to ensure the determination of
constitutional questions by this Court so far as possible, Parliament, as a matter of national policy,
strengthened the exclusion and removal provisions. Sec. 40, as it now stands, provides for removal
of causes or parts of causes "arising under the Constitution or involving its interpretation at any
stage of the proceedings before final judgment." If a party applies, he must show sufficient cause,
and must submit to terms if the Court thinks fit. But an Attorney-General--of the Commonwealth,
if he thinks Commonwealth interests involved, or of a State, if he thinks State interests involved--
may obtain the order as of course. Parliament recognizing that, if the Commonwealth or a State
desires the removal, that is in itself sufficient guarantee of materiality in the first instance. The
applicant must, however, establish that the cause or part of the cause is in fact and in law one
"arising under the Constitution or involving its interpretation." That requirement will be considered
presently. What is the effect of the order for removal so made? Remembering that up to the moment
of the order the State Court was exercising Federal jurisdiction and Federal jurisdiction only--the
Parliament by sec. 40 qualified its previous grant of that jurisdiction by directing it to cease on the
making of the order. By sec. 30 of the Judiciary Act, the High Court had, in such a case, been given
original jurisdiction which, in the absence of further direction, had to be exercised in manner
directed by the ordinary methods of originating process. In this specific event, however, original
jurisdiction was given on a special basis, sufficient in itself when read with sec. 41 to form
originating process and link that up for subsequent proceedings with the ordinary course and
practice of the Court. What defect of power is there to do this? First, let it be observed that Part VI.
is headed "Exclusive and Invested Jurisdiction." Secs. 38 and 38A make the High Court jurisdiction
unconditionally exclusive in certain matters. Sec. 39 makes it exclusive with qualifications in other
matters. Then Part VII., headed "Removal of Causes," further deals with the subject of Federal
jurisdiction. Sec. 40 is as already stated. Sec. 40A is self-executory, and removes ipso facto causes
in which inter se questions arise. This is to prevent sec. 74 of the Constitution from becoming either
a nullity or a source of conflict. Sec. 42 is a means of practical adjustment. A cause removed, either
under sec. 40 or sec. 40A, because at the relevant moment it technically answers the description of
causes in those respective sections, retains that character until it is determined. But, though it
technically possesses and continues to possess that character, this Court may find during its
progress, particularly if between private parties, that for some reason it does not "really and
substantially" arise under the Constitution or involve its interpretation. It is then to be remitted to
the State Court, since in the circumstances the Federal jurisdiction of that tribunal may be fully
exercised without risk of constitutional questions passing from the guardianship of this Court. This
is nothing more than a method adopted by the Parliament by way of distribution of such part of the
judicial power of the Commonwealth as the Constitution itself does not specifically and inalienably
allot. The dominant idea is to make sec. 74 of the Constitution a real and effective provision to
secure that all Australian constitutional questions of inter se nature shall be determined in this Court
in any event, and to enable a party or Commonwealth or States to have any other constitutional
question arising in a cause determined by this Court. The method is by limiting the jurisdictional
power of State Courts in constitutional questions in the way described. That is the result when the
legislation under consideration is read as a whole; as it must be. Secs. 76 and 77 of the Constitution
are, to my mind, too clear to admit of serious doubt as to the power of the Parliament of Australia to
pass that legislation.

The third objection (I take it before the second) is that the Attorney-General was not a party to the
proceedings for habeas corpus. Sec. 40 does not require him to be a party. The construction and
application of the Constitution in a particular case, even between private litigants may seriously
affect the interests of the Commonwealth, the States in general, or a particular State. If the
appropriate Attorney-General thinks so, and can satisfy this Court of the nature of the case, as it
appears at the moment he applies, this Court makes an order, which is an event on the happening of
which Parliament terminates, at all events until revived under sec. 42, the jurisdiction of the State
Court to exercise the Federal judicial power.

The second objection is of a different nature. It is that sec. 40 was not intended to remove, under the
designation of a "cause," a proceeding by way of habeas corpus. This objection, which was pressed
with much force and in one aspect with originality, is conveniently subdivided: first, with relation to
the content of the word "cause," and next, assuming the normal sufficiency of the word, whether it
should be so held in relation to a habeas corpus ad subjiciendum. The word "cause" is inherently of
very wide import. Lord Selborne in Green v. Lord Penzance[15] makes that authoritatively clear.
The statutory definition (sec. 2 of the Judiciary Act) is that "cause" includes any suit and also
includes criminal proceedings. "Suit" includes any action or original proceeding between parties. A
writ of habeas corpus is unquestionably an original proceeding. It was contended, however, that it is
not "between parties." Frequently when reference is made to a habeas corpus we find the word
"party" used, as in the Common Law Procedure Act 1899 of New South Wales (secs. 252 and 253).
But the root of the matter is this:--"A party imprisoned," says Littledale J. in Leonard Watson's
Case[16], "has two modes of proceeding, either by action for false imprisonment, or by application
for a habeas corpus." In Wood's Case[17] Lord Chief Justice de Grey describes the purpose of a
habeas corpus as "for protecting the liberty of one subject against another." He quotes Coke, in 2
Inst. 55a, as asking: "If a man be taken or committed to prison against the law of the land, what
remedy hath the party grieved?" He then quotes Coke's answer: "He may have an action, or he may
cause the party to be indicted at the King's suit; or he may have an habeas corpus out of the King's
Bench or Chancery, though there be no privilege ... and if it appears upon the return of the writ, that
his imprisonment be just and lawful, he shall be remanded; but if it shall appear to the Court that he
was imprisoned against the law of the land, they ought by the force of this statute to deliver him."
"This statute" means Magna Charta. At p. 176 the Chief Justice repeats: "This is a matter between
subject and subject." Gould, Blackstone and Nares JJ. agreed with the Chief Justice. In Bacon's
Abridgment, Habeas Corpus ad Subjiciendum (B) 3, it is said: "A habeas corpus is a writ of right,
which the subject may demand, and is the most usual remedy by which a man is restored to his
liberty, if he hath been against law deprived of it." It is therefore the recognized remedy upon a
complaint by or on behalf of one person against another person that the former is unlawfully
imprisoned by the latter and demands his liberty. If he requires damages another remedy is
provided. But for the specific relief of immediate liberation the appropriate form of proceeding is by
writ of habeas corpus directed to the person complained against, who is thereby brought before the
Court to defend the imprisonment if he can. The person complaining and the person complained
against are parties. The proceeding therefore is within the literal import of the word "cause." I have
so far based my conclusion on the nature of the writ of habeas corpus ad subjiciendum as
affirmatively recognized in various authorities. It is worth while, however, observing the probable
source of the writ. In the notes to chap. 16 in Forsyth's Cases and Opinions on Constitutional Law
(at p. 439) it is stated that the writ of habeas corpus seems to have been adopted from the writ de
homine replegiando. That was the old common law remedy where a person was improperly
restrained of his liberty under no legal process. When the writ was granted, which required an
affidavit disclosing the foundation on which it was prayed, an action was brought to determine the
right of detention. The writ was directed to the Sheriff, commanding him to replevy the plaintiff;
and then, says the text (referring to Fitzherbert's Natura Brevium de Hom. Repleg.): "The question
between him and the person who had restrained his liberty was tried in the same way as in the case
of a distress of chattels." The writ of habeas corpus ad subjiciendum was evolved from this more
ancient proceeding, as a more extensive (see Seldon's argument in Darnel's Case[18]) and also a
more "swift and imperative remedy in all cases of illegal restraint or confinement" (Lord
Birkenhead in O'Brien's Case[19]), and as a means to "the immediate determination of the right to
the applicant's freedom" (Lord Shaw, quoting Lord Halsbury[20]) and as affording "promptitude"
(Lord Shaw[21]). So too the preamble to the Act 56 Geo. III. 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. Evatt 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 Cox v. Hakes[22] and Secretary of State v. O'Brien[23] 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[24]). (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 his
detention was illegal (O'Brien's Case[25]). (c) It is a condition of the second proposition that the
Court be competent. This is shown in the judgments in O'Brien's Case[26]. See also United States of
America v. Gaynor[27]. In that case a Judge had wrongly interposed and discharged a person who
had been by another Judge remanded upon habeas as extraditable upon a charge of theft. Special
leave to appeal had been granted, and on the hearing it was held by the Judicial Committee that the
second Judge had interfered with the due course of justice by an unauthorized interposition. In effect
I read the decision as treating the second Judge as acting incompetently. The case arose under
Canadian law, and their Lordships allowed an appeal from the order of discharge, and did so
notwithstanding the respondent had been set at liberty. It is this essential condition of a competent
Court, and not the discharge by an admittedly competent Court, with which we are here concerned.
Sec. 40 of the Judiciary Act, as has been shown, is directed to enacting which Court is in certain
circumstances to be the competent tribunal. Besides this broad distinction there is also the obvious
gulf between a mere procedural statute providing for appeals--as in the English cases cited-- and
the fundamental provisions either of the Constitution itself (Lloyd v. Wallach[28]) or of secs. 40 to
42 of the Judiciary Act, apportioning for high purposes of Australian self-government the judicial
power of the Commonwealth. Attorney-General for Canada v. Cain and Gilhula[29] were Canadian
appeals after discharge on habeas corpus. The suggestion of learned counsel, when carefully
examined, is not sustained.

The remaining objections may be speedily disposed of. It was urged that that part only of the cause
which is affected by the constitutional question could or should have been removed. The answer is
that the whole cause is affected by the point, and it would be impracticable to make any severance
with the assurance of freedom from constitutional considerations. The last reason relied on was that
material facts were suppressed. It is only necessary to say this was not in any way proved.

(2) The Main Case.--On the main case many questions of outstanding 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 instrument, 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 or imprisoned ... or exiled ... but ... by the law of 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 to the 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 in actual practice and concrete result the more
important of the two to keep steadily in view. In the course of considering the questions here in
conflict between the parties, it will be seen that the principles themselves and the corollaries are of
far more than mere academic interest. They materially help to solve disputed points, and perhaps I
may say this specially of the second corollary, which is in my view a distinct test on one portion of
the case which, in my opinion, is eventually decisive as to one of the applicants. In the view I have
taken of two aspects of the matter, the result can be reached by direct reference to those alone.
Nevertheless, in the circumstances, I feel bound to express my opinion in respect of some other
questions that have been raised and that mean so much to the people of the Commonwealth. One
suggestion at the Bar--I can hardly call it a definite contention--was made during the argument. As
it stands apart from all else, I refer to it at once. It was with respect to the bona fides of the Board. It
is not necessary to say more than emphatically to state there is not the smallest reason in any
direction whatever for attributing or even suspecting want of good faith with respect to any of the
members of the Board. Nor is there any substance in the contention connected with the suggestion
mentioned that by accepting remuneration for performing a public duty they became disqualified to
perform it. I should like to express my great satisfaction at the withdrawal by Mr. Watt, however
late, of the objection founded upon those considerations. I pass to the other objections to the
deportation order.

In the forefront stands the challenge to the validity of sec. 8AA.

(3) Validity of Sec. 8AA.--The validity of this enactment, so far as it rests on the immigration
power, was contested on two distinct grounds which need to be carefully distinguished. The first
ground was that the section purports to subject to the immigration and emigration power (sec. 51
(XXVII.)) persons in Australia who immigrated here and became component parts of the Australian
community before the establishment of the Commonwealth. The second was that it purports to
subject to that power persons in Australia who, having immigrated here, even since the
establishment of the Commonwealth, have in fact so settled in Australia as to become component
parts of its people. These contentions involve two distinct conceptions, namely, that the
constitutional power of legislation does not extend to the limits stated, and the second is that the
legislation attacked, when properly construed, assumes to go so far. With regard to the 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[30]). 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[31], 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 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[32], 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[33] had determined that for ever. The true conception does not, in my
opinion, admit of any serious doubt or 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[34] 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 the Commonwealth. It follows therefore that for the purposes of Commonwealth
legislative power no one can be regarded as an immigrant who has not become so since the
establishment of the Commonwealth. A perusal of my judgment in the O'Flanagan Case[35] will
show that the fundamental assumption is that Commonwealth jurisdiction begins on the arrival of
the immigrant in Australia. To this I adhere. If then sec. 8AA of the Immigration Act 1901-1925,
properly read, extends to include persons who cannot be brought within that category, it is, pro tanto
at all events, invalid, and unless its provisions are separable, it is invalid in toto.

Dr. Evatt urged, however, in support of the second objection, that, once an immigrant becomes in
fact incorporated into the mass of the community, he escapes from the reach of the constitutional
power. Before analyzing that contention I may premise that such incorporation could hardly be
asserted if in violation of a law existing at the time it occurred. For instance, if a surreptitious entry
were made, and concealed until actual settlement took place, it would probably be conceded to be
ineffectual. But if entry were permitted on stated terms and before settlement was completed, which
might not occur for years, suppose a law was passed extending the term of probation, would the
settlement in fact, contrary to the extending law, be effective to annul the constitutional power as to
that individual? I am not sure what the contention would be in that case. I answer the question
decidedly in the negative. But supposing the settlement takes place before the alteration of the law,
the contention then is that never afterwards can the constitutional power of the Australian people
apply even retrospectively to the individual in question. And now let me analyze the contention. It is
and must be simply this: Until an immigrant, whenever he arrives in Australia, has settled down so
as in fact to have his "home" in Australia as a home which he finally adopts without intention of
ever leaving Australia, he is still an immigrant, whose "movement" of immigration is uncompleted.
That is to say, his "immigration" is still a presently existing fact on which the Commonwealth power
can operate. Let me at once point out one most startling and serious, but unavoidable, consequence
of this curious doctrine. Neither the word "movement" nor the word "home" is found in 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 Commonwealth 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 a man 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 circumstances that essential element of legal right
to be present on Australian territory. Let me give a concrete illustration. For example, an Italian (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 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 retrospectively 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 wide for local
purposes as that of the Imperial Parliament, regulate ab initio its permission to him to enter and
reside in Australia? Can he say in opposition to such an enactment: "I have made my home here in
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
Commonwealth Act retrospectively declaring the law as to the original immigration of the man into
Australia--a subject it could have 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[36]), quite contrary to the law laid down
by Lord Selborne in R. v. Burah[37], and contrary to the view of Lord Macnaghten in Colonial
Sugar Refining Co. v. Irving[38], contrary to the decision of this Court in R. v. Kidman[39], and not
supported by any restriction or limitation found in our written Constitution. I repeat as to the
immigration 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 statute 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 right 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[40]. That case
arose under the power as to "naturalization and aliens" (sec. 51 (XIX.)). 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 Commonwealth. 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 unless the certificate were revoked
for the only reason stated. That was the only condition. The certificate, of course, is only machinery
to enable him to cross the frontier of nationality. But in 1917, after Meyer's incorporation into
Australian citizenship, Parliament passed an Act (No. 25 of 1917) by which (sec. 7) a new reason
for revocation was enacted, namely, if "the Governor-General is satisfied that it is desirable for any
reason that a certificate of naturalization should be revoked." Under this Meyer's naturalization was
revoked. He was not an alien before revocation. He had entered into the Australian community and
as a fellow-subject of the King, that is much more intimately than others who were not naturalized
however they had settled down. Did the power attach? My brother Starke held it did, in a judgment
in which I entirely concur. He said[41]:--"It is said that depriving a person of citizenship so
acquired is not a law relating to naturalization. I am quite unable to agree with the contention, or to
consider that the point is susceptible of reasonable argument. It seems to me that if the power given
by the Naturalization Act to admit to Australian citizenship is within the power to make laws with
respect to naturalization, so must authority to withdraw that citizenship on specified conditions be
also within that power." For naturalization -- which is the passing from a state of alienage across
the dividing frontier to a state of British nationality -- substitute immigration -- which is passing
across the frontier of Australia from another country to this country. Substitute for the distinct and
clear-cut process of attaining the status of subject of the King, the indistinct and indefinite process
of settling in Australia as a member of its people; and substitute for the fact of voluntary acceptance
of that status of the King's subject, the voluntary acceptance of Australian membership; and then the
power of naturalization and that of immigration stand for this purpose on an even footing. If the
express permission to cease, and the voluntary cesser of, the status of alien still left it within the
parliamentary power to revoke the grant of citizenship and to restore the former status of alienage;
so must the merely implied permission to settle be equally capable of revocation so as to restore the
status quo ante. If there exists any line of demarcation in principle which in this respect
differentiates the alien power from the immigration power, it is too fine for my perception, except
by means of a legal microscope more powerful than any I am able to command. One illustration
alone will, I think, bring this position into relief. The applicant, Johnson, was a native of Holland
and immigrated to Australia in 1910. From that time, according to the evidence before us, he was
domiciled and made his permanent home in New South Wales, and thus, it is said, became a
component part of the Australian community. In 1913 he became naturalized and thereby became a
British subject. According to Commonwealth statute law, therefore, he was no longer an immigrant
and no longer an alien. But, while it is conceded that the Commonwealth Parliament can by
retroactive legislation retrospectively recall its control over him as an alien and expel him
summarily, if it pleases, as an alien, it cannot do so as an immigrant. That is, it is true in the sense I
have indicated to say "Once an alien always an alien" notwithstanding permitted naturalization in
the meantime, but it is not true to say "Once an immigrant always an immigrant" notwithstanding
permitted residence in the meantime. I have to confess my inability to accept this view, and
therefore reject the second contention.

I may sum up the whole of this branch of the case in a few words:--Immigration into Australia
must be either before or after the birth of the Commonwealth. As to the first, the Commonwealth
Parliament has no legislative power whatever. As to the second, it is supreme, and may legislate as
could the Imperial Parliament, that is, prospectively or retrospectively.

It may not be out of place, and indeed may usefully illustrate this very important question, to apply
what I have said to the trade and commerce power. Assume that before the Commonwealth period
goods were imported from abroad and had entered Australia. The Commonwealth Parliament could
not, by any retrospective law relating to foreign commerce, affect those goods. That is not because
the "goods" would be outside the power--because "goods" as such are not within it. The power
relates to "acts" not "things" (per Knox C.J.. Isaacs and Starke JJ. in W. & A. McArthur Ltd. v.
Queensland[42]). The prior acts would be outside the sphere of Commonwealth legislation. But if
inter-State transactions took place afterwards with regard to those very goods, those subsequent
transactions would come within the power: again, not by virtue of the goods but by virtue of the
nature of the transactions. Now, suppose after 1901 certain goods come into Australia, quite
lawfully as far as any then existing Commonwealth legislation is concerned, and even pass into
retail hands. But suddenly the Commonwealth Parliament, learning of their intended dangerous use,
retrospectively declares them prohibited imports. Are those goods then, in the eye of a Court of law,
lawfully in this country? I unhesitatingly say they are not, into whosesoever hands they have come.
Those goods stand in relation to the trade and commerce power precisely as a man who has settled
down in Australia in fact stands in relation to the immigration power. Not "things" or "persons" but
"acts" in both cases are the subject of the power. Legislative power, prospective or retrospective,
may be exerted in respect of all those "acts," and alike in both a Court must, if it is so declared by
the law-making authority, accept its pronouncement as the law of Australia. If an inter-State
transaction is completed, and the goods have gone into intra-State trade, the intra-State transactions
themselves are of course entirely outside the sphere of Commonwealth legislation. But the
Commonwealth Parliament having control of inter-State transactions, if those are annulled ab initio,
then from the time of their annulment, as that time is declared by Commonwealth law, they can
form no legal basis on which to found any claim of right. Whatever can stand notwithstanding their
illegality can stand; whatever is henceforth forced to rest upon them for justification must fall. As
lawful "acts" they are and must be deemed to be non-existent.

4. Construction of Sec. 8AA.--The crucial words for this purpose are the words "any person not
born in Australia." They are found in the phrase "the Minister, if he is satisfied that any person not
born in Australia has been concerned in Australia in acts directed" &c. No doubt the words in
question, if considered merely in relation to the phrase quoted, that is, without regard to any other
connected context, must receive their primary unabridged meaning. They would, for instance,
include a State Governor if English-born. Disavowal of such an inclusion is inevitable. But why?
Simply because the words are capable of receiving, and must receive, at least that limitation by
reason of their context. Apart from their context in the phrase quoted, even an English-born State
Governor would not be excluded, because he certainly is a "person not born in Australia." But once
concede the tractability of a phrase, then the extent of tractability depends entirely on its
surroundings, including extraneous circumstances. That has been most fully recognized and with
special appositeness in relation to the primarily very wide words "person," "every person," &c.

Lord Loreburn in Drummond v. Collins said[43]: "Courts of law have cut down or even contradicted
the language of the Legislature when on a full view of the Act, considering its scheme and its
machinery and the manifest purpose of it, they have thought that a particular case or class of cases
was not intended to fall within the taxing clause relied upon by the Crown." If that is so with
taxation, how much more with loss of liberty or status. For this purpose Lord Herschell in Cox v.
Hakes said[44]: "It cannot, I think, be denied that, for the purpose of construing any enactment, it is
right to look not only at the provision immediately under construction, but at any others found in
connection with it, which may throw light upon it, and afford an indication that general words
employed in it were not intended to be applied without some limitation." In that case the House of
Lords cut down the generality of the words "any judgment or order of Her Majesty's High Court of
Justice" so as to exclude orders of discharge in habeas. That was done by reason of an extraneous
consideration, namely, a general constitutional right. The ruling was repeated on the same grounds
and with extended application in O'Brien's Case[45], again on an extraneous constitutional ground.
Mr. Watt referred on this point to a judgment of my brother Rich and myself in Waterside Workers'
Federation of Australia v. Gilchrist, Watt & Sanderson Ltd.[46]. The passage 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 nature of the legislator and to the subject of the legislation. For it 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. Morgan1(1559) 1 Plowd. 199, at p. 205., are called foreign
circumstances. The latest case of supreme authority is that of In re Viscountess Rhondda's
Claim2(1922) 2 A.C. 339.. In that case Viscount Birkenhead L.C. (with whom concurred Lord
Atkinson, Lord Buckmaster, Lord Sumner and Lord Carson) said3(1922) 2 A.C., at p. 365.:--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
existing 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
Dunedin4(1922) 2 A.C., at p. 390. and by Lord Wrenbury5(1922) 2 A.C., at p. 397., the latter
approving Stradling v. Morgan. Numerous prior examples are found, of foreign circumstances, that
is, circumstances extraneous to the enactment interpreted, limiting the generality of its terms.
Among them are Jefferys v. Boosey6(1854) [1854] EngR 816[1854] EngR 816; ; 4 H.L.C. 815., Ex
parte Blain7(1879) 12 Ch. D. 522. and Cooke v. Vogeler1(1901) A.C., 102.. These authoritative
decisions indicate that, even where Parliament confessedly possesses plenary power within its own
territory, the full literal intention will not ordinarily be ascribed to general words where that would
conflict with recognized principles that Parliament would be prima facie expected to respect.
Something unequivocal must be found, either in the context or the circumstances, to overcome the
presumption. But if that is the case where Parliament has the power to go as far as the words
themselves would literally extend, how much greater is the obligation of reducing the generality of
words, if that be reasonably possible, where the parliamentary power is restrained by a written
Constitution and where the full imputed intention would entirely nullify the enactment. The maxim
ut res magis valeat quam pereat, as applied to Macleod v. Attorney-General2(1891) A.C. 455., is
applicable to sec. 31 (1) (see Jumbunna Coal Mine v. Victorian Coal Miners' Association3(1907-08)
6 C.L.R. 309, at pp. 363-364., Irving v. Nishimura4(1907) [1907] HCA 50[1907] HCA 50; ; 5
C.L.R. 233, at p. 238. and W. & A. McArthur Ltd. v. Queensland5(1920) 28 C.L.R., at p. 550.).
This is, indeed, a rule of very general application (see cases cited in Broom's Maxims, 7th ed., at p.
399)."

The only extraneous circumstance applicable here is the all-essential one of the ambit of the
legislative power of "immigration and emigration." When we read the document in which
Parliament has inserted sec. 8AA--and, may I add, has deliberately and by way of amendment so
inserted it--its intention to act under that power becomes to my mind incontestable. Tracing the
course of the Immigration Acts through the years 1901 to 1925, having regard to the self-
designation of those Acts in the body of the enactments, and to the terms of many of the successive
provisions, I am unable to escape the conclusion that Parliament intended that the immigration
power should at all events be one of the legislative powers supporting the enactments, and therefore
that, even though they were supportable also by other legislative powers, the extent to which the
enactments went was not to exceed the frontier of the immigration power. The construction I give to
sec. 8AA not only brings it within the scope of the immigration power and leaves it valid and
operative, but also preserves to the full the legislative jurisdiction as it originally comes to the
Commonwealth with regard to every non-Australian individual who is permitted to enter it.

A great deal of discussion took place as to whether the provisions of sec. 8AA, if found
insufficiently supported by the immigration power, could be upheld in their full primary sense under
the trade and commerce power (sec. 51 (I.)) or under the power relating to any department of the
public service (sec. 52 (II)) or under sec. 61 and sec. 51 (XXXIX.). As to this, several contentions
arose. One was as to the use of deportation as a legitimate provision incidental to main powers of
legislation.

(5) Deportation.--I agree with the Solicitor-General--and indeed, Dr. Evatt did not contest this--
that deportation as a means of self-protection in relation to constitutional functions is within the
competency of the legislative organ of the Australian people. This nation cannot have less power
than an ordinary body of persons, whether a State, a church, a club, or a political party who
associate themselves voluntarily for mutual benefit, to eliminate from their communal society any
element considered inimical to its existence or welfare. We have only to imagine, as I suggested
during the argument, some individual found plotting with foreign powers against the safety of the
country, or even suspected of being a spy or a traitor. It matters not, as I conceive, whether he is an
alien or a fellow-subject, whether he is born in Kamtschatka or in London or in Australia, the
national danger is the same. No one stays to ask where a bomb which is on one's premises was
manufactured. The urgent question is how to get rid of it. Needless to say, I speak only of national
power, that is, the right of the community as a whole to preserve its own existence. Power may be
abused. That does not affect its presence or even its utility. A surgeon's knife may be put to base
uses; but it is a necessary means in extreme or dangerous cases to save life. Whether a power is
abused or not depends entirely on the wisdom and the sense of justice of those entrusted with it. The
central fact to bear in mind in applying this truth to the present case is that in every department of
public action it is the Commonwealth itself that functions. The Commonwealth, as a whole,
functions--and can function--only by its designated organs. Obstruction to or interference with the
judicial 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[59]. 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 written Constitution to require the power of
deportation always to be exercised through the medium of the Judiciary. If it is enacted as a
punishment for crime, it necessarily falls to the judicial department. The Court then determines the
matter, as it does every other, upon the proved circumstances of the case.

If it is enacted not as a punishment for crime, but as a political precaution, it must be exercised by
the political department--the Executive--and possibly on considerations not susceptible of definite
proof but demanding prevention or otherwise dependent on national policy. These principles, which
are self-evident, have been abundantly recognized in America in cases of which Mahler v. Eby[60]
is the latest.

(6) Other Legislative Powers.--But then it is said that for another reason sub-sec. 2 of sec. 8AA is
not incidental to any legislative power other than immigration, not even to trade and commerce and
departmental. The reason assigned was that an act founded on the belief of the Minister as to the
extent of a power was not an act in respect of the subject matter of the power. As a legal proposition
that may be conceded; but how is it applicable here? It comes to a matter of interpretation of the
statute. There are two alternative methods of reading the sub-clause. One is to read it as empowering
the Minister to be satisfied not only of facts but also of law, that is, as investing him with authority
to determine problems of constitutional law, with a subsequent reference to a Board, of whom only
one must be a lawyer, and possibly a police magistrate, to reconsider the Minister's conclusions.
That is one way of reading the provision. The other is that the Minister is entrusted with the
function of finding pro hac vice facts only, leaving their legal character for determination, if
necessary, by the Courts. The first is very unlikely, indeed highly improbable, and at the least the
matter is ambiguous. In that case the key to the problem as to whether the provisions of sec. 8AA
are supportable under those powers is precisely that which has been already applied in respect of the
immigration power, and is much more readily applicable to the less explicit language of the words
now under construction. That is to say, the doctrine of Macleod's Case[61] is applicable. Reading
the relevant provisions by the aid of that doctrine, which at root is the doctrine of ut res magis
valeat quam pereat and is of special importance when it is sought to nullify the legislative will of a
Parliament, there is no attempt to enlarge the constitutional area of any subject matter, and there is
no attempt to confer judicial power on the Executive. The Minister has only to be satisfied of acts
which in fact are directed to hinder or obstruct, to the prejudice of the public, transactions which
legally fall either within the trade and commerce power or are for the provision in fact of what are
in law Commonwealth public services.

It was said that no connection is shown between the statute and the power. As I read the statute the
connection between it and the power is clear and on the face of the enactment. Whether a concrete
case so falls within the statute as to be connected with the power depends upon the circumstances. If
a Court finds that the case itself is outside the power and therefore outside the Act, it will say so. No
judicial power is given to the Minister. In the event of challenge the Courts would decide the law.
The judgment of Lord Selborne in R. v. Burah[62], in my opinion, covers the ground, and I am not
sure that this same conception is not the underlying principle of such cases as Low Wah Suey v.
Backus[63] and those there cited. The added omnibus provision in the sub-section as to the presence
of a person in Australia may not be at first so self-evident. I agree with the Solicitor-General's view
that in this case it is immaterial whether that provision is in itself a law upon any of the matters
referred to. It might be regarded as an added condition or restriction on the exercise of the powers
already authorized by the earlier words of the sub-section. The condition or restriction might
legislatively have been omitted, but its insertion does not introduce illegality: it merely gives
protection pro tanto to the person affected. But I am unable to see why Parliament could not, in
protection of the Commonwealth in respect of defence, customs, coinage or immigration, for
instance, enact that any person who was shown to the satisfaction of the Minister to be a spy, a
traitor, a smuggler, a coiner or an importer of prostitutes, might be summarily deported. Such
legislation on admitted subjects of power might be considered arbitrary and even dangerous; but
those are elements entrusted to the wisdom of Parliament when weighing in its own scales of social
justice the comparative claims of individuals and the nation. If it says Yea, no Court can say Nay.
The Sugar Co.'s Case[64] 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 any part of that decision exceeded
the subject matter of the certificate of reference of this Court, to disregard it on the ground that sec.
74 of the Constitution imposes an inescapable duty on this Court. In my opinion, when that decision
is carefully examined, it contains nothing in derogation of the views I have stated. Without entering
upon irrelevant matters, I would say in the first place that, as appears from p. 246 of the report in
the English Law Reports[65], 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[66]. That part deals with sec. 51
of the Constitution down to and including sub-head xxxviii. As to this it is only necessary to say the
legislation in the present case does not assume to deal with any subject matters except those
presently comprised in the legislative powers of the Commonwealth Parliament. The second part of
the Sugar Co.'s Case judgment is devoted to sub-head xxxix. Their Lordships as to this say[67]: the
words "cover matters which are incidents 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 I have construed it. A Parliament is not, unless there be
express provision to the contrary, bound to express its will in any technical or special form, and no
Court has any warrant to require it. If sec. 8AA were passed as a separate and independent
provision, I should hold that as legislation it covered the whole ground of these two cases. It would
be a waste of time for me, in view of the opinions of the majority, to enter upon a more detailed
statement of the reasons leading me to this conclusion. But it is necessary for me to observe that if,
upon applying to the section under construction the Macleod doctrine, the provision as to the
Minister's finding is sufficient to make the section invalid, it will not be difficult, if consistency be
maintained, to invalidate many Commonwealth statutory provisions hitherto considered
unquestionable. But, while that is so, I am forced to put one limit on the construction of the words.
Inasmuch as Parliament has, in my opinion, assumed to make its legislation conform to all its
powers, it follows that it did not intend that its enactment should transcend any of them.
Consequently, although supportable to the full extent of the parliamentary intention by the trade and
commerce and public department and public authority powers, that full extent cannot be properly
considered to go beyond the limits of the immigration power. The net result of that is that, properly
construed, no one falls within it who did not immigrate before 1901. That of itself disposes of the
case of Walsh. I do not stop to inquire whether his "movement" stopped, or his "home" was in fact
established, before 1901. He immigrated here before that year and has since remained, and that is
enough in my view to exclude him. On the other hand, all persons who immigrated after that time
are included, but none are included who were not such immigrants, because the intention, as I have
said, is not to exceed any power.

(7) Retrospection.--The question whether the section is retrospective in the sense of affecting prior
immigration, though part of its general construction, I deal with separately. Of course it is
prospective only with regard to the proclamation and the "acts" it aims to prevent. That is, it is not
an ex post facto law. But whether it is on its fair construction retrospective as applying to past
immigration is quite another matter. To begin with, it is undeniably concerned with the subject of
immigration. That at least is certain. It excludes persons who never immigrated. That also is certain.
It is, on lawful construction, confined, as I have said, to persons who immigrated since 1st January
1901. But, if it is not retrospective at all as to immigration, then its operation must be still further
confined to persons who immigrate after the passing of the enactment. Can that be seriously
entertained as the intention of Parliament? I, at any rate, could not think so; any more than I could
think that the case of Meyer v. Poynton[68] should have been decided differently on the ground that
the later provisions in 1917 applied only to naturalizations after that year. I think this matter may be
simply tested. Suppose an Act is passed in these terms: Sec. 1--"All immigration into the
Commonwealth is subject to the condition that if the person immigrating shall at any time whatever
be found disclosing military information to a foreign power he may be deported by order of the
Minister." That would be naturally prospective, both as to immigration and as to the acts sought to
be prevented. But suppose sec. 2 said: "Immigration in this Act includes all immigration from 1st
January 1901." The statute would still be prospective as to the acts to be prevented, but would be
retrospective as imposing a condition on the permission to immigrate into the Commonwealth. In
my opinion, once it is conceded, as it must be, that the words "any person not born in Australia" are
not restricted to future immigrants, but include all persons at the given moment who have at any
time since 1900 immigrated into Australia, then the legislative intention must be to affix
retrospectively a qualification on all past immigration into Australia as well as to condition future
immigration.

(8) The Minister's Finding.--But there remains a highly important reason--applicable indeed to
both cases--for holding that, even establishing full validity and application of the section to both
applicants, the order for deportation cannot be sustained. I refer to the Minister's finding. There is no
proof that either of the applicants was ever notified of what acts the Minister was satisfied the
applicant was concerned in. I have no hesitation in saying that, apart from that of constitutional
power, this branch of the case yields no precedence to any other question in the case. It is
impossible to minimize it without minimizing also the strict jealousy of the law in favour of
personal liberty, or without departing from the second corollary I have formulated above. Let me
first state the position as succinctly as it will permit. The statutory process of deportation consists in
steps: (1) The Minister satisfies himself that a person is concerned in certain illicit acts; (2) he calls
upon that person to show cause before a Board why he should not be deported; (3) the Board hears
the person charged, or the person fails to appear; (4) the Board, if he appears, recommends
deportation; (5) the Minister orders deportation; (6) deportation.

The question is whether a person subject to deportation is entitled to know from the Minister what
"acts" the Minister considered him guilty of, so that he may at the proper time judge for himself
whether to abstain from appearing before the Board or to contest before the Board the Minister's
findings. Observe necessary facts:--The Minister must of course know the "acts" he relies on before
he calls on the person to show cause. Otherwise it would be nonsense to say he was satisfied of the
"acts." He must also be satisfied of their "direction," but that is additional. If the Board recommends
deportation, as well as if there be failure to appear before it, the Minister still has the duty of making
an order before deportation is lawful.

Now comes a crucial question. On what does Parliament intend the Minister to act, if he orders
deportation? Is it merely for not appearing before a Board, or merely on the Board's
recommendation for any reason the Board advances? Or may the Minister select some new reason?
Or must he, if he makes the order, make it by reason of the acts he has already found as a basis and
with the failure to attend, or the Board's recommendation added? Undoubtedly the latter, in my
opinion. But if the Minister must first find "acts," and must afterwards base his deportation order on
those same "acts" (plus the recommendation or the failure to attend), how in the name of common
justice can it be denied that the accused is entitled to know with sufficient precision what those
alleged "acts" are, and know that they are the "acts" which the Minister himself has found? It is
never to be forgotten that the determination of the Court, where liberty is sought by means of a writ
of habeas corpus, is not to be arrived at by considerations appropriate to Police Court proceedings.
No question of waiver of legal objections, even where there is a Court to hear them, or of failure on
the imprisoned applicant's part to perceive all the illegality of his detention, can affect the duty of
the Court to test for itself his right to personal liberty. That is the practical application of the second
corollary above stated. Lord Birkenhead in O'Brien's Case[69] 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[70] says the law of England is "ever jealous for personal liberty." The
procedure is said by Lord Shaw[71] 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"[72].
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 than
express their legal effect--should never be put into operation 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
(gg) 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 prevention. The
consequences are not in a legal sense punishment as for crime, but preventive measures for the
future. Of the propriety of these provisions Parliament and not any Court is the supreme authority to
decide. It is entirely outside my province to express, or even to suggest in the faintest manner, any
approbation or disapprobation of the provisions enacted or of the way in which the Executive has
endeavoured to carry them into effect. My duty, at this instant, is simply and exclusively to ascertain
how far they have been legally put into force. And before I can form any opinion upon that I must
gather their meaning. I hold, as a matter of interpretation, that the intention of Parliament is that,
before deportation can be ordered, it must be recommended by an impartial Board, and that while
that Board may for any reason of extenuation or explanation decline to recommend deportation, it
cannot properly affirmatively recommend deportation for any reason other than the "acts" as to
which the Minister was "satisfied" the person was concerned in. The Minister may be satisfied, as to
any alleged acts of the person involved, by any means of information he considers trustworthy. That
is for him, and him alone, to determine. But he must, as I understand the section, make up his mind
with reference to some specific acts. How otherwise can he satisfy himself as to what they are
directed to? How can he, for instance, form any belief whether they are directed to purely intra-State
trade or merely to a State public departmental service? And assuming the Minister effectively does
this with sufficient particularity, what is the next necessary step. He may "summon the person to
appear before a Board ... to show cause why he should not be deported from the Commonwealth."
Then he appoints the Board. The Board is clearly intended to be independent. It cannot receive
secret instructions from the Minister. How is it to know what it is to do when the person appears to
show cause why he should not be deported, except from the recorded finding of the Minister as
notified to the person concerned. Clearly there is nothing but the notification necessarily given to
the person either in the summons or otherwise, intimating of what acts the Minister is satisfied and
in respect of which the person is to "show cause." The Legislature has interposed the Board between
the Minister and the person summoned, as a protection to him. It would be wholly foreign to that if,
instead of being a 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 therefore nothing to show even by presumption in respect of what "acts" the Minister
subsequently made his order. Nor is it, in my opinion, any answer to say that the party has not in
fact been 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 v. Lempriere[73]). This principle obtains not merely in indictments in criminal cases (see
R. v. Stocker[74]), 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 v. Baker[75]) and
informations in the Exchequer for forfeiture (R. v. Morley[76]). It applies to the case of expulsion
from a club. In Cassel v. Inglis[77] 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 blocking 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 as a principal or an accomplice.
And, as already mentioned, the particulars did not affect this uncertainty. The case of Welsbach
Light Co. of Australasia v. Commonwealth[78] is instructive on this point. It was cited to support the
present order. The nature of the case is essentially different; that is, there was no question of an
accusation to be answered, and the result of a mere opinion carried automatically identical
consequences. The resemblance between the two cases may therefore be matched by that between a
camel and a caterpillar. It was held by four Justices--one reluctantly--that an opinion of the
Attorney-General on alternative matters was good. Three Justices dissented. But even the Judges
who formed the majority pointed out the special nature of the case. Griffith C.J.[79] distinguished
the case from one where a person is charged with an offence and "is entitled to know definitely the
charge he is called upon to meet." He referred to the circumstance that "the fact alleged cannot be
disputed or disproved," and that the opinion was one to be formed "on emergency and without
opportunity of full investigation." His Honor said he came to his conclusion "by having regard to
the subject matter, the evil to be remedied, and the nature of the remedy." Barton J. said[80] it was
"not an accusation, nor a finding." I relied on the subject matter and the circumstances, including
identity of consequences. My brother Higgins, for reasons given, had doubt but was not prepared to
dissent. My brothers Gavan Duffy, Powers and Rich dissented on this point. Altogether that case is
rather a weighty authority by way of antithesis in support of the view I have stated.

(9) Summary.--It may be useful if I summarize my conclusions of law on the main case, apart from
the three basic principles and their working corollaries. They are as follows:--(1) The immigration
power in sec. 51 (XXVII.) does not extend to any person whatsoever whose immigration into
Australia took place before 1st January 1901, but it does extend to every person whatsoever whose
immigration into Australia took place after that date. (2) No person once subject to that power can
by his own act withdraw himself from it, nor can Parliament by legislation or abstention from
legislation either extend, abandon or abridge its constitutional power. (3) The rights of any person
desiring to immigrate to enter after the date mentioned and to remain in Australia depend entirely on
the presently existing relevant law of the Commonwealth. (4) A law with respect to immigration,
and also every other law with respect to any granted legislative power of the Commonwealth, except
so far as fettered by special constitutional restriction, may be prospective or may be restrospective to
the inception of the Commonwealth at the discretion of the Parliament, representing for this purpose
the supreme will of the whole Commonwealth, and to this a Court is constitutionally bound to give
effect. (5) Full effect can be given by a Court to a retrospective law only by holding that its
provisions were the relevant law at the date to which it relates back--(This is perhaps the pivotal
consideration as to the constitutional power). (6) A retrospective immigration law retrospectively
regulates the conditions upon which the Commonwealth permits immigration at the time to which
the provisions of the law relate: No valid claim to Australian citizenship by an immigrant can exist
contrary to those conditions. (7) Deportation is within the competency of Parliament as legislation
within any of its granted powers, and may be made exercisable according to the nature of the case
by either the judicial or the executive organ of the Commonwealth. (8) Sec. 8AA of the Immigration
Act 1901-1925 is valid as an exercise of legislative power under sec. 51 (XXVII.) (immigration and
emigration), sec. 51 (I.) (trade and commerce), sec. 51 (XXXIX.) and sec. 52 (II.) (public
departments and public authority). (9) The section, on its true construction--which must be the
same for all purposes--does not include any person who immigrated to Australia before the
establishment of the Commonwealth, but does retrospectively include all persons who immigrated
after that point of time and before the enactment, as well as those who immigrate after the
enactment: It therefore does not for any purpose include Walsh, and does for all purposes include
Johnson. (10) On the true construction of the section it is a necessary condition, before any person
affected can be lawfully required to show cause to a Board or suffer deportation, that he should be
informed with reasonable definiteness of the particular acts of which the Minister is satisfied and for
which the Minister, subject to failure to appear before a Board or to the Board's recommendation,
proposes to deport him. (11) No such information was, according to the evidence before us, ever
given. (12) By reason of the non-application of the statute to him--and, if necessary, by reason of
the failure to notify the "acts" as found by the Minister--Walsh is entitled to his liberty. (13) By
reason of the failure to notify the "acts" as found by the Minister, Johnson is entitled to his liberty.

I am therefore of opinion that the rules should be made absolute and the applicants discharged.

Higgins J.

At the time of this application for a writ of habeas corpus the applicant Walsh, pending deportation
from Australia as in pursuance of sec. 8AA of the Immigration Act 1901-1925, is kept in custody in
Garden Island as in pursuance of sec. 8C of the Act. His counsel urge that, even if all the
requirements of sec. 8AA have been satisfied, the section is invalid--that it is not sanctioned by any
power conferred on the Federal Parliament by the Constitution. It is also urged that sec. 8AA, even
if valid, does not on its true interpretation apply to the prisoner. The prisoner came to Australia in
1893 and settled, and has had his home here ever since. No doubt he was an immigrant in 1893, for
he was born overseas; but his immigration was over and completed long before the Federal
Constitution came even into operation (1st January 1901).

The Act is called the Immigration Act; and the heading is "An Act to place certain restrictions on
immigration and to provide for the removal from the Commonwealth of prohibited immigrants";
and, as the Act is an Act of the Federal Parliament, it must be taken, prima facie at all events, to be
intended to be an exercise of the power conferred on that Parliament by sec. 51 (XXVII.) of the
Constitution--the power to make laws "for the peace, order, and good government of the
Commonwealth with respect to immigration." There is no indication, on the face of the Act, of any
intention to exercise any other of the powers specified in sec. 51. The primary question, therefore,
is: Is sec. 8AA an Act with respect to "immigration"? The answer is surely obvious: that sec. 8AA is
not an Act with respect to immigration at all, but an Act with respect to deportation of residents of
Australia, members of the Australian community, who have been immigrants at any time. To make a
law for the deportation of such immigrants is not to make a law with respect to immigration--the
act or action of immigrating, the movement of persons from some other country into Australia. I am
precluded by the judgment of the majority of the Court in the Irish Envoys' Case[81] from adding to
the notion of such movement the notion of intention to settle in Australia; but, at the least, any law
under sec. 51 (XXVII.) must be directed to the movement, the migration, to Australia--directed
usually to preventing or discouraging entrance, or allowing or encouraging entrance, either
absolutely or on conditions; or otherwise to regulating entrance. Similarly, an import duty is a tax on
the movement of goods into Australia; it is not a tax on the goods as property (Attorney-General of
New South Wales v. Collector of Customs for New South Wales[82]; Attorney-General of British
Columbia v. Attorney-General of Canada [No. 2][83]). A power of Parliament to make laws with
respect to the importation of alcohol would obviously not include a power to prohibit the
manufacture of alcohol or a power to extrude such imported alcohol as is already in the country. It is
a fundamental mistake to treat the power to make laws as to immigration as if it were a power to
make laws as to immigrants.

If this view is right--if this is not a law with respect to immigration at all, but a law for the
deportation of residents who have been immigrants--sec. 8AA cannot be valid by virtue of the
power conferred by sec. 51 (XXVII.); and if Parliament has attempted to exercise that power, and
no other, the section, 8AA, cannot be upheld by virtue of any other of the numerous powers
contained in secs. 51 and 52 of the Constitution. I have never known the doctrine to be questioned
which is laid down by Lord St. Leonards, in his book on Powers, that a donee of a power may
execute it without referring to it, or taking the slightest notice of it, provided that the intention to
execute it appear (Sugden on Powers, 8th ed., p. 289). Parliament appears to me to have clearly
stated the power which it intended by this section and Act to exercise; and it cannot be treated as
having exercised some other power.

But even assuming that this were a law with respect to immigration, the section is invalid on another
ground also, if (as counsel for the Government contend) it applies to this applicant, to a man who
immigrated into Australia in 1893 and made Australia his home. For the Federal Parliament has no
power to legislate for Australia as to the time which passed before the Constitution, before the
Federal Parliament existed. The Parliament has power to make laws for Australia for the time since
1st January 1901. It has no power to legislate with respect to immigration which took place before
the Constitution. This point was not mentioned in the case of Potter v. Minahan[84], because it
could not be raised; for the act of immigration there alleged took place in 1908--after the
Constitution. All the five members of the Bench agreed on the major premiss--that persons who are
already members of the Australian community are not subject to immigration laws. The only
difference was that the majority thought that Minahan was necessarily a member of the Australian
community by reason of birth in Australia; whereas the minority thought that he had ceased to be a
member. The case of R. v. Macfarlane[85] does not, in my opinion, decide that this section is valid;
for in that case the persons held to be affected by the Act were persons who had not made their
homes in Australia--were merely visitors.

It would be more satisfactory if I could find on the face of the Act something that would justify me
in saying that, on its true interpretation, the section and the Act were not intended to apply to a man
in the position of this prisoner. It would, indeed, be my duty, before coming to the conclusion that
the section is invalid, to see whether, on a fair interpretation, an exception in favour of those in the
position of this applicant should not be implied. The result, the release of the applicant, would
equally follow. But my ingenuity is not sufficient to enable me to construe the section in such a
manner. Apart from the current knowledge of recent history, and the bizarre effect, the humour, of a
finding that the Act does not apply to the applicant, I cannot honestly construe these words "any
person not born in Australia" &c. as not applying to him. I cannot regard the aim of the
draughtsman as having been so faulty. I regard the words "any person" as being as comprehensive in
its denotation as the same words so often repeated in the clauses of sec. 3, the interpretation section.
In sec. 3 (a) "any person who fails to pass the dictation test" corresponds with "any person not born
in Australia" in sec. 8AA; and so does sec. 3 (b), "any person not possessed of the prescribed
certificate of health," and similarly right through sec. 3. Even if there are indications in certain other
sections that Parliament misconceived the scope of its power to make laws as to immigration, that
fact would not show that Parliament meant to exclude men in the position of the prisoner from the
operation of sec. 8AA. After all, the only difference that I can find between most of my learned
colleagues and myself on this subject of immigration is that they regard sec. 8AA as not applying to
members of the Australian community, because if it did apply the section would be invalid; whereas
I think myself forced to regard the section as intended to apply to members of the Australian
community, and therefore am forced to say that the section is invalid. I agree absolutely with the
words of the Chief Justice[86], that "when the person seeking to enter the Commonwealth is a
member of the Australian community, his entry is not within the power to make laws with respect to
immigration."

Taking, as I do, this view as to the section, 8AA, in question, I should, strictly speaking, be justified
in saying simply that the order nisi should be made absolute. But the section has so many aspects,
and the arguments on both sides have been so searching, every inch of ground being contested, that
I propose to examine the section further. It might be described as a section for the banishment,
ostracism, deportation of undesirable persons by the Minister--persons whom the Minister deems
undesirable--if they were not born in Australia. Substantially, it enacts that if the Governor-General
make a proclamation to the effect that there exists in Australia a "serious industrial disturbance" the
Minister may, if satisfied of two things, summon any person not born in Australia before a Board to
show cause why he should not be deported from the Commonwealth. The two things of which the
Minister has to be satisfied are (a) that the person has been concerned in acts directed towards
hindering, &c., to the prejudice of the public, the transport of goods or passengers in relation to
trade or commerce with other countries, &c., or the provision of services by any department, &c.;
(b) that the presence of that person in Australia will be injurious to the peace, &c., of the
Commonwealth in relation to the matters with respect to which the Parliament has power to make
laws.

It will be noticed that the person need not be connected in any way with the serious industrial
disturbance; that his hindering of the transport of goods or passengers may be a lawful hindering
(as, e.g., when a woolbroker dissuades woolgrowers from sending wool to a glutted market in
London); that "prejudice of the public" means prejudice in the opinion of the Minister for the time
being--a political officer; that the hindering may have occurred many years before the Minister
acts; that the person's presence here need not be injurious because of that hindering, but may be
regarded as injurious in relation to divorce laws, coinage laws, census laws, &c.; that the Minister
may be satisfied without taking any evidence; that the Board is to consist of three members, all
appointed by the Minister who is already satisfied as to the facts; that the Board need not determine
whether the facts as to which the Minister is satisfied are true or not; and that the Minister may
order deportation, and the incidental arrest and detention, on a mere recommendation of the Board
(with no grounds stated) that the person be deported.

Now, our duty is narrow and definite. It is obvious that if one political party may banish opponents,
another political party may act likewise, should it get into control--as happens frequently in South
America. But it is not for us to consider these provisions from the point of view of wisdom or
statesmanship; no crudity, no folly, no subversal of time-honoured principles of British liberty, will
entitle us to treat this section as being invalid if it has been passed under the powers granted to the
Federal Parliament by the Constitution. We have neither the means, nor the right, to ascertain the
reasons which may in fact justify or excuse such a section; nor, if we have an abhorrence of the
ways of the prisoner, are we entitled to give it play: we have merely to say whether this section is
authorized by the Constitution.
I have already said that the section cannot be upheld as an immigration law. But the Solicitor-
General relies, in the alternative, on the section as being a law with respect to emigration. But
Parliament did not, as appears from the title and heading, intend to exercise this power to make laws
with respect to emigration; and, besides, banishment is not emigration. Emigration must be
interpreted in the ordinary vernacular sense; and, in that sense, emigration may be encouraged or
discouraged, or forbidden, or regulated by Parliament. According to the Oxford dictionary, the
general meaning of "emigration" is "the action of migrating or departing out of a particular place or
set of surroundings"; but its especial sense is "the departure of persons from one country, usually
their native land, to settle permanently in another." If the "man in the street" were asked, "Is this a
law as to emigration?" I rather think he would answer, "How can it be? The man is forced by Act to
leave the country." To my mind, it is useless on this point to cite to us Acts for compulsory
banishment if passed by legislatures which have unlimited powers of legislation--such as Acts of
Great Britain or of New Zealand or of South Africa. It is useless to cite any Acts even of Canada,
where all the residuary powers are conferred on the central legislature (sec. 91 of the British North
America Act 1867). It is useless to cite Acts of the United States as to deporting aliens. There is no
law, and no power to pass a law, under the United States Constitution, for the deportation of United
States citizens; but there is power to pass any law as to aliens. Aliens have no legal right enforceable
in the Courts to come to or to remain in a country to which they do not belong (Musgrove v. Chun
Teeong Toy[87]).

Now, our Australian Constitution confers on the Federal Parliament certain specified powers only of
legislation (secs. 51, 52, &c.); and no Act of that Parliament can be treated as valid which does not
come within the scope of one of those powers. I include, of course, under the powers specified, the
important power contained in sec. 51 (XXXIX.) to make laws with respect to "matters incidental to
the execution of any power vested by this Constitution in the Parliament ... or in the Government of
the Commonwealth." The word "incidental" is the critical word; and I propose to examine this
power presently.

But the Solicitor-General contends that he is entitled to rely on the powers to make laws on other
subjects also, and in particular on the power to make laws with respect to "trade and commerce with
other countries, and among the States" (sec. 51 (I.)). He contends that sec. 8AA is a law with respect
to such trade and commerce, because the section actually refers to such trade and commerce,
making it one of the conditions of the Minister's exercise of the power to deport that the person has
been concerned in acts directed towards hindering, &c., the transport of goods, &c., in relation to
trade and commerce with other countries, &c. In my opinion, that part of this section which refers to
trade or commerce is not a law with respect to trade and commerce; and even if it were, the section
cannot be sustained as the exercise of the power with respect to trade and commerce. The only
power which--according to the title and heading of the Act--Parliament intended to exercise was
the power as to "immigration." As I have stated already, the Act is intituled "An Act to place certain
restrictions on immigration and to provide for the removal from the Commonwealth of prohibited
immigrants" (the applicant here is not a prohibited immigrant; for he has not yet been deported: sec.
3 (gg)). When the donee of several powers purports to execute only one of these, he cannot be
treated as having executed any of the others (Attorney-General v. Vigor[88]); and there is no
execution of a power unless the donee intend to execute it (Sugden on Powers, 8th ed., p. 289;
Farwell on Powers, 3rd ed., pp. 201, 215, &c.; In re Ackerley; Chapman v. Andrew[89]; In re
Sharland; Rew v. Wippell[90]). In this case, Parliament has expressly set itself to execute the power
as to "immigration," and that only; and counsel for the respondent cannot rely on any other. In the
case of Pankhurst v. Kiernan[91] I expressed the view that when the Federal Parliament purports to
pass an Act on a subject which prima facie belongs to the State legislatures only (such as the price
of bread, the registration of dogs, or the protection of property from destruction), the Act must be
treated as invalid unless the Federal Parliament clearly indicate that it regards the Act as necessary
or expedient for the purposes of some definite Federal subject, such as defence; and, if the Act is
capable of coming under that subject, the Court would accept the statement of the purpose of the
Federal Parliament as conclusive. My view was not upheld by my learned brethren in that case, and
I have no right to press it as being the law. But I know of no opposition to the doctrine that if A
have several powers which might be regarded as applicable to some definite subject matter, and if
he distinctly say that he is using power X only, he will not be treated as having exercised powers Y
or Z.

But perhaps it is unnecessary to dwell further on this point; for, even if we were at liberty to
consider the other specified powers, it is clear that sec. 8AA does not contain a law as to trade and
commerce with foreign countries, &c. It enacts nothing with regard to trade and commerce; it
imposes no new duty, confers no new right or power as to that subject. The very elements of a law
are wanting. The section is not aimed at the subject of trade and commerce at all, or at the
enforcement of any law on that subject. There is, certainly, a reference to such trade or commerce in
the section, as I have stated; for one of the conditions on which the section purports to allow the
Minister to deport is that the man has, in the Minister's opinion, been concerned in acts hindering,
&c., the transport of goods, &c., beyond seas--at any time in the past, however distant; but no
consequence follows from that fact of hindrance. The man is not to be deported unless his presence
here is, in the Minister's opinion, injurious "in relation to matters with respect to which the
Parliament has power to make laws"; and such matters would include marriage, lighthouses,
coinage, weights and measures, &c., quite as much as trade and commerce with foreign countries.
Indeed, the more one considers the isolated reference to trade and commerce in the section, the
more distinctly it is seen to be not a genuine law with respect to the subject mentioned in sec. 51
(I.).

When one wants to find the subject on which an Act is passed, I think it is safe to put this as a test--
what does the Act really aim at accomplishing; and if the aim comes within the subjects assigned to
the Federal Parliament, the Act is valid; otherwise not. This I take to be the test approved of by the
Judicial Committee, through Viscount Haldane, in the recent important case of Toronto Electric
Commissioners v. Snider[92]. This was the view which, as it appears, I took in Huddart, Parker &
Co. Pty. Ltd. v. Moorehead[93], a case to which counsel have referred. There I put it, what is the
target aimed at? What are the things or the actions regulated--as distinguished from the motive
which influenced Parliament? I said that the thirty-nine articles contained in sec. 51 are subjects of
legislation, "not pegs on which the Federal Parliament may hang legislation on any subject that it
likes." I am still of the same opinion. If one had to describe summarily the aim of this section,
without question--begging phrases, I think it might be fairly said to be the banishment of persons
(not born in Australia) whom the Minister deems to be undesirable residents of Australia; and this
subject is not one of the subjects permitted to Parliament by sec. 51.

Apart from the effect of sec. 51 (XXXIX.) (which I shall presently examine), none of the specified
powers of sec. 51 has such a section as sec. 8AA within its scope or ambit. To make a law with
respect to aliens, providing for their deportation, is allowed by pl. xix.; to make a law for the
deportation of people of any race such as the Kanakas of the Pacific islands is allowed by pl. xxvi.:
but there is no power conferred expressly to make a law for the deportation of ordinary British
subjects. There is an express power (pl. xxvii.) to make laws as to immigration and emigration; and
it is not disputed that under this power British subjects could be excluded from coming to Australia
and making their homes here. But where is there to be found any power to interfere with the liberty
of a British subject who has settled in Australia, by deporting him to his former country or
elsewhere? The very fact that powers are expressly conferred in such a manner as would allow
deportation of Pacific islanders, and as would allow deportation of aliens, affords a strong
presumption that Parliament was not intended to have power to deport British subjects, however
drastically Parliament may interfere with their immigration. In considering this question of power,
we are in duty bound to consider and construe the whole of the clauses in sec. 51, "so as to reconcile
the respective powers and give effect to all" (Citizens Insurance Co. of Canada v. Parsons[94]); and
in the Royal Commissions case (Attorney-General for the Commonwealth v. Colonial Sugar
Refining Co.[95]) the Lords of the Privy Council, after referring to the specific subjects assigned by
sec. 51 of the Constitution to the Federal Parliament, said: "None of them relate to that general
control over the liberty of the subject which must be shown to be transferred if it is to be regarded
as vested in the Commonwealth."

But it is urged that the section, so far as it purports to enable the Minister to deport a British subject,
is warranted by sec. 51 (XXXIX.): Parliament may make laws with respect to "matters incidental to
the execution of any power vested by this Constitution in the Parliament." The critical word is
"incidental": is the deportation of a man settled in Australia, in the absence of crime on his part
(there is no crime mentioned in sec. 8AA), a matter incidental to the execution (= exercise?) of the
power to legislate as to trade and commerce? I have already stated my opinion that there is not in
this section any legislation as to trade and commerce with foreign countries, &c. There is no duty
imposed, no right or power given, as to trade or commerce, by the words in the condition as to
hindering trade or commerce. From the nature of the case, the alleged law as to trade or commerce
must be found in the words of the section which precede the words allowing deportation. The power
to deport cannot be treated as being at the same time part of the principal law and also as incidental
to the power to make that principal law (see also Attorney-General for the Commonwealth v.
Colonial Sugar Refining Co.[96]). But even if a law as to such trade or commerce had been made by
the section, a law for deportation cannot be treated as "incidental" to the power to make laws in
respect to such trade or commerce. No doubt, it would be competent for Parliament, under pl.
xxxix., to prescribe punishment for breach of such a law, punishment even by imprisonment or
deportation--or transportation. I do not, of course, say that the "incidental" power ends there; it is
unnecessary, and it would be dangerous, to attempt to define the limits of this incidental power. But
for a Minister to interfere with the liberty of the subject by sending him from his home away over
the seas, without crime on his part, is clearly not within the limits of the power. Such an interference
must rest on a substantive, independent power, such as the analogous powers as to aliens, as to
Pacific islanders, as to the influx of criminals. Since I wrote the last preceding paragraph, I find that
this very distinction between a "substantive and independent power" and a power which can be
implied as incidental to other powers is recognized by Marshall C.J. in McCulloch v. Maryland[97]:
"The power of creating a corporation, though appertaining to sovereignty, is not, like the power of
making war, or levying taxes, or of regulating commerce, a great substantive and independent
power, which cannot be implied as incidental to other powers, or used as a means of executing
them."

The limits of incidental powers have been illustrated in various cases. In Kielley v. Carson[98] the
Newfoundland Legislative Assembly committed a man for contempt for alleged breach of the
privileges of the House. The contempt was not committed in the presence of the Assembly. The man
brought an action for assault and false imprisonment. Parke B., in delivering the opinion of an
unusually numerous body of Judges, said[99]:--"Their Lordships see no reason to think, that in the
principle of the common law, any other powers are given them" (the local Legislature) "than such as
are necessary to the existence of such a body, and the proper exercise of the functions which it is
intended to execute. These powers are granted by the very act of its establishment, an act which on
both sides, it is admitted, it was competent for the Crown to perform. This is the principle which
governs all legal incidents. Quando lex aliquid concedit, concedere videtur et illud, sine quo res ipsa
esse non potest. In conformity to this principle we feel no doubt that such an Assembly has the right
of protecting itself from all impediments to the due course of its proceeding. To the full extent of
every measure which it may be really necessary to adopt to secure the free exercise of their
legislative functions, they are justified in acting by the principle of the common law. But the power
of punishing anyone for past misconduct as a contempt of its authority, and adjudicating upon the
fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party
accused, whatever the real facts may be, is of a very different character, and by no means essentially
necessary for the exercise of its functions by a local legislature, whether representative or not. All
these functions may be well performed without this extraordinary power, and with the aid of the
ordinary tribunals to investigate and punish contemptuous insults and interruptions. ... Their
Lordships, therefore, are of opinion. that the principle of the common law, that things necessary pass
as an incident, does not give the power contended for by the respondents as an incident to, and
included in, the grant of a subordinate legislature." This case was followed in Fenton v.
Hampton[100]; in Doyle v. Falconer[101]; in Barton v. Taylor[102]; and by this Court in Willis and
Christie v. Perry[103]. The Assembly had only self-protective and self-defensive powers, had no
punitive powers. As was said in Barton v. Taylor[104], "no powers of that kind are incident to or
inherent in a colonial Legislative Assembly (without express grant), except such as are necessary to
the existence of such a body, and the proper exercise of the functions which it is intended to
execute6(1841-42) 4 Moo. P.C.C., at p. 88.. Whatever, in a reasonable sense, is necessary for these
purposes, is impliedly granted whenever any such legislative body is established by competent
authority." There is no necessary inconsistency between this doctrine, placing the limits of the
implied power in the necessity of the circumstances, and the eloquent words of Marshall C.J.
uttered in McCulloch v. Maryland[106], whatever we may think as to the application of the words in
that case; for even the British authorities use the word "necessary" in a reasonable sense; and there
may be a choice of means in exercising the implied power. What is important for the present
purpose is that there is no ground for the assertion that under the incidental power in pl. xxxix.
Parliament may cause men to be deported lest they should be injurious to the Commonwealth in
respect of Commonwealth powers; a fortiori, where the acts of the man to be deported may have
merely hindered foreign commerce, and the injury to the Commonwealth may be in respect of
divorce or coinage or lighthouses. Hindrance to foreign commerce is not an offence, of course--it
may be actually praiseworthy in some eyes, as in the case mentioned of a woolbroker. It is evident
that the draughtsman avoided any condition which would involve a legal offence, for it would then
be said that any offence must be sent to the Courts and the judicial power--not to a Minister. I am
prepared to give full effect to pl. xxxix. according to the words as they stand; but I am not prepared
to treat the word "incidental" as if it were "conducive," or likely to add an additional motive to the
performance of the law's command. In the case of G. G. Crespin & Son v. Colac Co-operative
Farmers Ltd.[107] our late colleague Barton J., speaking of pl. xxxix., said that "authority to make
laws with respect to any subject extends to matters incidental to such laws. That is, of necessity,
included in the power granted. There is also by sec. 51 (XXXIX.) a power to make laws with
respect to matters incidental, &c. Though the incidental power would have been exercisable without
this express grant, the sub-section makes assurance doubly sure." The same view is expressed,
though in different words, by Griffith C.J. in R. v. Kidman[108] (and see per Higgins J.[109]). But
there is no ground for the notion that, where power A is granted to the Federal Parliament and
power B is not, power B may be exercised because the exercise of it may be helpful to the carrying
out of power A or of the law under power A. The decision of the Judicial Committee invalidating
the Royal Commissions Act (Attorney-General for the Commonwealth v. Colonial Sugar Refining
Co.[110]) certainly limits, does not expand, any conception which one might have formed of the
effect of pl. xxxix.

For these reasons, I am of opinion that pl. xxxix. does not empower the Parliament to make this
deportation law as incidental to the power to make laws for trade and commerce; and for
substantially the same reasons I think that it does not empower the Parliament to make this
deportation law as incidental to the execution of any power vested by this Constitution in the
Government of the Commonwealth. Under sec. 61 of the Constitution the executive power is vested
in the King, and is exercisable by the Governor-General (that is to say, by the Government); and it
"extends to the execution and maintenance of this Constitution, and of the laws of the
Commonwealth." Assuming that, as incidental to this executive power, the Parliament may pass an
Act constituting a police force, or for the establishment of gaols for offenders, it does not follow
that Parliament may also deport from the Commonwealth people who are not likely to obey the
laws. Such a power is not "incidental" to the execution and maintenance of the laws, even though it
might assist in reducing the number of crimes committed, as well as the number of people who
might possibly commit crimes. The Solicitor-General contends that such a law for deportation
would be analogous to the exercise of a legislature's implied power to remove persons obstructing
its proceedings; but what is a necessary power for a deliberative assembly in order that it may be
able to deliberate is not necessary for the executive Government to have over the whole country in
order that the Government may execute and maintain the laws.

It is unnecessary for me, holding the views that I have stated, to come to a decision as to the point
on which the Chief Justice has laid so much stress. I am not convinced that an Act, for instance,
with respect to invalid pensions (pl. xxiii.) would be invalid if it left it to a postmaster or other
official to decide whether any particular applicant for the pension is an invalid or not. It is true that
the official might treat the word "invalid" as having a larger meaning than the High Court would
allow it; but his decision would not be binding in other cases, or on other postmasters. Under the
United States Constitution it is wonderful how many delicate questions, involving law as well as
fact, have been committed to the decision of boards and officers, and with the approval of the
Supreme Court. In Reetz v. Michigan[111] it was objected to a medical registration Act of Michigan
that as the board of registration was directed to refuse a certificate if there were no sufficient proof
that the applicant had been registered under a certain earlier Act, this involved a legal question with
which no tribunal other than a regularly constituted Court could be empowered to deal--that the
Legislature could not enable the board to exercise judicial powers without appeal. But the Supreme
Court of the United States rejected the argument, and said[112]:--"We know of no provision in the
Federal Constitution which forbids a State from granting to a tribunal, whether called a Court or a
board of registration, the final determination of a legal question. ... Due process is not necessarily
judicial process." The difficulty in the United States on the subject seems to be due to the peculiar
provision of the United States Constitution that no one is to be deprived of life, liberty or property
without due process of law, and we have not got that provision in the Australian Constitution. For
my part, I desire to leave such an important matter for consideration when the decision of the point
becomes necessary for the decision of some case.

It is unnecessary for me also to decide the point on which my brother Isaacs lays stress--as to the
form of the summons under sec. 8AA. There is no doubt that the summons is badly drawn, although
drawn in the words of the section--that the Minister states himself to be satisfied (as to the first
condition) that "you have been concerned ... in acts directed towards hindering ... the transport of
goods ... or the provision of services by any department ... of the Commonwealth." The Minister
does not say that he is satisfied as to both or either of the alternatives. This might be a serious
objection to the proceedings if the proceedings were for an offence against the law; but they are not.
It might even be a serious objection if the Board before whom the prisoner is summoned were under
a duty to inquire into the matters as to which the Minister is satisfied; but the Board is not under any
such duty. I do not say that the Board, under the section, is not at liberty, if it think fit, to inquire as
to these matters; but its only duty is to decide whether it should recommend that the prisoner be
deported from the Commonwealth (sec. 8AA (3); sec. 8A). The Solicitor-General admits this
position. It was open to the Board, if it thought fit, to assume the Minister's findings to be right, and
to ask the prisoner to show cause, on such grounds as the Board thought fit (e.g., ill-health, domestic
reasons, a bond as to future conduct, &c.) why he should not be deported from the Commonwealth.
The actual report of the Board is now in evidence, and the only operative part is a recommendation
that the prisoner be deported from the Commonwealth. It is, to my mind, a mistake to treat these
unusual proceedings as if they were an indictment or an information. The only question is, do the
proceedings, based on this faulty summons, offend against natural justice. The form of the summons
is not prescribed by Act or by regulation. The learned counsel for the prisoner took many
objections, but it never occurred to them to object that the Minister must say definitely the fact of
which he was satisfied, or the particular acts which were directed towards hindering, &c. I cannot
think that, at this stage of proceedings such as these, when the Board has concluded its task without
any objection taken to the form of the summons, we should be justified in treating the whole
proceedings as contrary to natural justice on such as artificial ground. Even if a man were charged
with shooting, out of season, "a snipe" or "a woodcock," and made no objection to the form of the
charge, I do not think that it would be essential to natural justice that he should be released from
prison because of the defective charge.

My opinion is that if sec. 8AA applies to the prisoner on its true interpretation, the section is invalid.
I should prefer if possible to join with my colleagues in the view that the section does not apply to
the prisoner; but I do not see anything in the words used which would justify me in implying an
exception to the clear words of the section. It does not matter to the prisoner on which ground he is
released; but, in my opinion, the section is invalid.

As for the prisoner Johnson, the position is different. A native of Holland, he immigrated into New
South Wales in 1910, became naturalized, married here and has a child. It cannot be said of him, as
of Walsh, that his immigration took place before the Constitution, before there was any power to
legislate as to immigration into Australia. It is true that Johnson established his home, became a
member of the Australian community, long before sec. 8AA; but I am not justified in saying that a
Federal Act cannot be made retrospective (see R. v. Kidman[113]). But there are no words in the
section or in the Act which make the provisions of the section retrospective so as to apply to
Johnson's immigration--his act of immigrating, his movement into Australia--in 1910.

There is no power to deport residents--citizens--of Australia under the immigration power or under
any other power conferred; and, in my opinion, the section is invalid as to Johnson also.

Both men must be released.

Perhaps I should add that I have not failed to consider the preliminary objections taken by Dr. Evatt
to the removal of these cases to this Court. The sections of the Judiciary Act have by him been
subjected to a searching and valuable examination; but the only objection to which I am able to
attach much weight, in view of this Court's previous decisions, is that as to sec. 40 (1) being rather a
section providing for a certiorari than a section passed under the powers of sec. 77 of the
Constitution. My view is that, whatever the form adopted in sec. 40 (1), the Parliament has power
under sec. 77 (III.), in investing any Court of a State with Federal jurisdiction, to define the limits or
conditions of the investiture.

Rich J.

Certain preliminary objections were taken to the removal of the applications for habeas corpus from
the Supreme Court. Three of these call for observation. It was first argued that sec. 40 of the
Judiciary Act was not a law of definition and investiture. I cannot accede to that argument. Sec. 75
of the Constitution inalienably vests in the High Court jurisdiction in certain matters. Apart from
this the Parliament, by secs. 76 and 77, is empowered to distribute and define the exercise of the
judicial power of the Commonwealth. Included in sec. 77 is the power to divest the State Court of
the power which otherwise belongs to it in respect of any matters coming within the judicial power
of the Commonwealth. The Commonwealth Parliament has exercised all these powers in sec. 38A,
39 and following sections of the Judiciary Act. Sec. 40 must therefore be given its operation as
divesting the State Court of its Federal jurisdiction to hear the case, its State jurisdiction having
previously disappeared under sec. 39. It was 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[114]). 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.

In approaching the applications themselves I preface my opinion with the remarks made by Lord
Macnaghten in Vacher & Sons Ltd. v. London Society of Compositors[115]:--"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 certain acts of the legal character described in the section; a summons to show
cause by reason of those acts; a hearing by the Board; a recommendation by the Board that the
applicants be deported. If 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 Parliament, intending to make its
legislation effective, especially in what it thinks a serious industrial disturbance, would intend to
abandon any of its powers. Therefore, there being no negative words nor any necessary implication
that Parliament was deliberately and purposely limiting itself to one power to the exclusion of all
others, I think the section, if it can under any circumstances come within the other powers, should
be held to do so. An Act of Parliament must always be read as within the Constitution unless its
language makes that impossible. I see no impossibility here. On the contrary, everything points to a
reasonable construction that brings it within the legislative powers. Without diverging into detail, I
am of opinion that the section is valid as an exercise of powers as to immigration, inter-State trade
and commerce, departments of State, any other public authority created by the Commonwealth, and
as a defensive precaution with respect to all other powers. In stating that conclusion I have taken
into consideration all the arguments as to deportation, judicial powers, connection with the subject
matter, and other reasons put forward in argument. In saying what I have said about validity, I have
necessarily had to consider the construction of the section.

The presumed intention of Parliament, unless the language makes it impossible, being that powers
are not exceeded (Macleod v. Attorney-General[116]) puts an interpretation on the section not larger
than the immigration power. The immigration power does not, in my opinion, give any authority
over any person now in Australia who has been here since and prior to Federation. But there is
nothing in that or in any other power or in the words of the section to prevent sec. 8AA from
applying to every person in Australia who arrived here by immigration since that event. I am
distinctly of opinion that persons who arrive here by immigration since Federation are always liable
to Commonwealth legislation under the immigration power even though that legislation is
retrospective. I think there is nothing in the Constitution to deprive the Commonwealth Parliament
of the recognized and ordinary parliamentary power of legislating retrospectively, with all the
incidental effects. This section is a retrospective defeasance of any right which an immigrant since
Federation might previously have claimed in pursuance of the prior state of Commonwealth law.

The next necessary link is the Minister's satisfaction as to the applicants' acts. In my opinion, this
must be insisted on strictly in favorem libertatis. In my opinion, the justification to be shown by the
party detaining requires that the Minister was satisfied as to some specific acts. There is no proof,
nor is it anywhere suggested in these proceedings, that the Minister was satisfied of any specific
acts. No such acts are anywhere referred to. I think this link breaks. The next link is the summons.
All the summons contains as to acts is a round statement, not even confined to one particular
character of acts and not specifying any single particular which could give a clue to any acts. This
link and the preceding one break together. The next two links are formal enough, but, as the
continuity is broken, they are useless to afford any justification.

Applying what I have said to the respective applicants, I am of opinion that the attempted
justification fails as to Walsh because he is outside the Act and, even if he were not, there is no
proof that the Act was complied with. As to Johnson, though the Act applies to him, it has not been
carried out as its provisions require.

Before parting with the case I would like to add that there is no possible reason for thinking that the
Board was in a false position in consequence of promised remuneration or of any instructions, and
least of all for thinking that its members were actuated by anything but the best of faith in all they
said or did.

Starke J.

These are rules nisi obtained by Thomas Walsh and Jacob Johnson from the Supreme Court of New
South Wales calling upon Robert Walter Yates to show cause why writs of habeas corpus should not
issue, directed to him, and they were removed into this Court on motion on behalf of the Attorney-
General of the Commonwealth pursuant to the provisions of sec. 40 of the Judiciary Act. The
validity of sec. 40 was challenged by the applicants, and it was also contended that the section did
not extend, on its proper interpretation, to the rules obtained by them.
The judicial power of the Commonwealth is vested in the High 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[117]). 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 of sec. 40 of the Judiciary Act.
Still less, in my opinion, is there any reason to doubt that the proceedings by way of rule nisi in the
Supreme Court fall within the terms of sec. 40. The applicants were detained under an order for
deportation issued pursuant to the provisions of the Immigration Act 1901-1925, sec. 8AA. That
order was attacked on many grounds, but the constitutional validity of the section under which it
was made was directly challenged, and was indeed, as the argument in this Court demonstrated, a
vital question in the case. It is not necessary, when removal of a cause, &c., is sought, to establish
that the interpretation of the Constitution will necessarily call for decision, but only that that subject
is involved or entangled in the controversy. If it is, the Attorney-General of the Commonwealth or
the Attorney-General of a State, can remove the cause, as of course, whether he is a party to it or
not, subject always to the powers conferred upon the Court by sec. 42. A party cannot remove the
cause as of course, but only for sufficient cause shown to the Court. Once the cause is removed, the
High Court is clothed with full authority essential for its complete adjudication: it is the cause
which is removed, and not merely the question involving the interpretation of the Constitution;
though it is that question, as already indicated, which attracts the cause to the jurisdiction of the
High Court (cf. Gaines v. Fuentes[118]; Railroad Co. v. Mississippi[119]). It was also argued that a
rule nisi for habeas corpus was not within the meaning of sec. 40. Great reliance was placed upon
the fact that the proceedings in these cases were for writs of habeas corpus, but, if they involve the
interpretation of the Constitution, then, subject to the meaning of the word "cause," the section is
explicit. I failed to understand how the removal of the matter from the State Court into this Court in
the manner provided for by sec. 40 interfered with, or deprived the applicants of, any rights or
privileges secured to them by the Habeas Corpus Acts. But a minor point was also made. It was said
that a rule nisi for a habeas corpus is not a "cause" within the meaning of sec. 40. The argument
rests upon the interpretation clause in the Judiciary Act, sec. 2. "Cause" includes any suit and also
includes criminal proceedings. "Suit" includes any action or original proceeding between parties.
"Matter" includes any proceeding in a Court whether between parties or not, and also any incidental
proceeding in a cause or matter. It was said that a rule nisi for habeas corpus was not a cause
because it was not an original proceeding between parties and was, in truth, a matter not covered by
sec. 40. The argument is disposed of in Green v. Lord Penzance[120] thus: "It"--the word "cause"--
"is not a technical word signifying one kind or another, it is causa jurisdictionis, any suit, action,
matter, or other similar proceeding competently brought before and litigated in a particular Court."
Nothing in the Judiciary Act, in my opinion, limits this wide ambit of the word. Further, in the
Crown Office Rules of 1886, I note that the person to whom a writ of habeas is directed is referred
to as a party (see rr. 239, 245).

Consequently, the preliminary objections fail; and I pass to the consideration of the substance of the
case--a case involving not only the liberty of citizens of this Commonwealth, but questions vitally
affecting the powers of the Parliament of the Commonwealth and the validity of legislation passed
by it.

Orders have been made and signed, for the deportation of the applicants Walsh and Johnson,
pursuant to the provisions of sec. 8AA of the Immigration Act 1901-1925, and they have been
arrested and detained by a peace officer of the Commonwealth under orders --also made pursuant
to the section--directing him to take and keep them in custody pending deportation, and until they
are placed on board a vessel for deportation from Australia. The applicants insist that the provisions
of sec. 8AA of the Immigration Act are beyond the legislative powers conferred upon the Parliament
by the Constitution. Under the British Constitution the validity of a provision such as that contained
in sec. 8AA could not be challenged or canvassed before any judicial tribunal. And if such a
provision were enacted by the Dominion of New Zealand or the Union of South Africa, its validity
would be unassailable, and its efficacy undoubted within the territorial limits of those countries
(New Zealand Constitution Acts 1852 and 1857 (15 & 16 Vict. c. 72; 20 & 21 Vict. c. 53); South
Africa Act 1909 (9 Edw. VII. c. 9) sec. 59). This is because the Imperial Parliament has absolute and
untrammelled power, and New Zealand and South Africa have absolute and plenary 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.[121]). Again, it is quite
true, I think, as is said by Lord Haldane L.C. in the Sugar Case[122], 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 v. Chun Teeong
Toy[123]; Walker v. Baird[124]; Johnstone v. Pedlar[125]). 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[126]). 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 to do. 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 to
exclude persons and to suppress and prevent acts detrimental to the Commonwealth, in respect of
subjects over which it has power. Thus it would be a valid law, in my opinion, if the Parliament
provided that any alien who in the opinion of the Minister was an undesirable resident of Australia
might be deported: it would be valid because the Parliament has full power over the subject of
aliens. So too, in my opinion, it would be a valid law if some controlling rule was prescribed by
Parliament as to trade and commerce and a Minister was empowered to enforce it (cf. Prentice and
Egan's Commerce Clause in Federal Constitution (1898), p. 311). And this, again, because
Parliament has full power over the subject. Legislation on somewhat similar lines is dealt with in
many cases--in England in R. v. Halliday[127]; in Australia in Farey v. Burvett[128], Ferrando v.
Pearce[129], O'Flanagan's Case[130], Meyer v. Poynton[131], Jerger v. Pearce[132]; and in
America in Fong Yue Ting v. United States[133], Low Wah Suey v. Backus[134], Ng Fung Ho v.
White[135], Japanese Immigrant Case[136], United States v. Ju Toy[137], Mahler v. Eby[138].
Some regard this class of legislation as obnoxious to the principles of British liberty, but the Court
can pass no opinion upon that aspect of the case. The chance of "abuse," however, is, as Lord
Dunedin said in R. v. Halliday[139], always "theoretically present" when absolute powers in general
terms are delegated to an executive body, but "practically, as things exist," he adds, the danger of
abuse "is absent."

The critical question remains for consideration whether the Immigration Act, sec. 8AA, as framed is
within the powers of Parliament. The question is not what Parliament could enact but what it has
enacted. The Solicitor-General sought to justify the enactment under various legislative powers: (1)
trade and commerce with other countries and among the States (The Constitution, sec. 51 (I.)); (2)
immigration and emigration (The Constitution, sec. 51 (XXVII.); (3) matters relating to any
department of the public service, the control of which is by this Constitution transferred to the
executive Government of the Commonwealth (The Constitution, sec. 52); (4) the executive power
of the Commonwealth, which extends to the execution and maintenance of the Constitution and the
laws of the Commonwealth (The Constitution, sec. 61); (5) matters incidental to the execution of
any power vested by the Constitution in the Parliament or in either House thereof or in the
Government of the Commonwealth; (6) any other power enabling the Parliament in that behalf. But
before examining these powers in detail it will be convenient to dispose of some outlying arguments
addressed to the Court.

One, on behalf of the applicants, that sec. 8AA conferred judicial power upon the Minister and the
Board in violation of the provisions of the Constitution, and was therefore beyond the power of
Parliament (see The Constitution, secs. 71 and 72). The answer is that no judicial power has been
conferred on the Minister or the Board, and for reasons which have been set forth at large in
O'Flanagan's Case[140]. Another, on the part of the Solicitor-General, to the effect that a great
emergency had arisen, putting the national life of Australia in peril, and justifying the section as a
law enacted to preserve the peace, order and good government of the Commonwealth. The argument
was adopted, I think, from certain observations by the Judicial Committee in In re Board of
Commerce Act 1919[141] and Toronto Electric Commissioners v. Snider[142]. But the Judicial
Committee in those cases was referring to the exercise of what is often called the residuary power of
the Dominion Parliament, vested in it pursuant to sec. 91 of the Canadian Constitution (British
North America Act 1867 (30 & 31 Vict. c. 3)). That provision has no parallel in the Australian
Constitution. In Australia, as in Canada, the authority of the Parliament of the Commonwealth to
make laws depends wholly upon the provisions of the Constitution, and the argument of the
Solicitor-General has no validity unless founded upon some provision expressed or implied in the
Constitution. Lastly, one suggested, I think by my brother Higgins, that the doctrines relating to the
exercise of powers by private persons applied to the exercise by Parliament of its legislative powers.
Such a doctrine is, in my opinion, both dangerous and unsound. No legislation would be safe if so
strange a principle were established. 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. 8AA 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. 8AA, I take first the argument that is based upon the whole legislative power of
Parliament. The provisions of sub-sec. 1 of sec. 8AA 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[143]). 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.

It was then suggested that if the provision could not be supported in its present form as an
independent exercise of all the powers in the Constitution, still it was legitimate in relation to the
exercise of the trade and commerce, the department of public service, and the immigration powers,
which, it was claimed, had been lawfully exercised in earlier parts of the section. Thus it was said
that a law to the effect that any alien should be deported who, in the opinion of the Minister, is
injurious to the peace, order and good government of the Commonwealth in relation to matters with
respect to which the Parliament has power to make laws, would be a valid exercise of power.
Perhaps so, because Parliament has full power over the subject of aliens; but it will be time enough
to consider that case when it arises. The suggestion is ingenious and amounts to this: that the
Parliament has in substance enacted that any person hindering or obstructing foreign trade, &c., or
public service, &c., may, if the Minister be satisfied that he is injurious to the peace, order and good
government of the Commonwealth in relation to matters in respect of which it has power to make
but has made no laws, be deported. But, unfortunately for the argument, Parliament has not made
such a law. It has not in sec. 8AA, upon its proper construction, prescribed any controlling rule in
relation to the subjects of trade and commerce or the public services necessary to support a law
under either power. It is the rule of the Minister and not the rule of the Constitution or of the
Parliament that controls the so-called law in relation to the subject of trade and commerce and the
public services. Such a provision cannot, in my opinion, be supported under the trade and commerce
power or the power to make laws with respect to any department of the public service or public
authority of the Commonwealth.

Next must be considered the power to make laws with respect to immigration and emigration.
Expulsion and banishment of people from a country is not emigration in the ordinary and usual
signification of the word. The emigration power will not support sec. 8AA. Nor is the expulsion of
citizens or members of the community from a country ordinarily called immigration. But the
immigration power has been considered in this Court on several occasions, and the Solicitor-
General has presented some new aspects. According to his contention, the power does not extend to
citizens of the Commonwealth who arrived in Australia before its establishment, but, on the other
hand, does extend to all persons who came into 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[144]. If the contention be sound, the reasoning of this Court in Potter v.
Minahan[145] 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 Commonwealth 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"[146]. 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 is 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.

The matter may perhaps be illustrated by reference to the trade and commerce power. At some time
goods the subject of foreign or inter-State trade or commerce may pass beyond the range of the
power relating thereto, and become engaged in the general mass of property the subject of domestic
trade. May Parliament, nevertheless, pass a retroactive law prohibiting, for instance, the import of
such goods into the Commonwealth and attaching as a sanction to the law the forfeiture of the
goods? In my opinion, it may not, because that would be a law not in respect of trade and
commerce, but in respect of the forfeiture of the goods wholly unconnected with any transaction in
trade and commerce among foreign countries, &c., and, ex hypothesi, impinging upon the power of
the States to regulate and control domestic trade and goods engaged therein. This illustration may
not advance the case, but it applies in a concrete form the argument with respect to immigration to
another power.

Consequently, sec. 8AA cannot be supported if upon its true construction it extends to those whom I
may call citizens of the Commonwealth or part of the community known as the Australian people.
But prima facie a law based upon power to deal with the subject of immigration has not in
contemplation the citizens of Australia but rather those who are not citizens. It is a permissible
construction, I think, in order to preserve the section, to say that it does not extend to persons whose
"permanent home is in Australia" and who therefore are "members of the Australian community"
(Potter v. Minahan[147]; O'Flanagan's Case[148]). The question then becomes one of fact (Potter
v. Minahan). And it is clear on the evidence that both applicants have their permanent home in
Australia, and fall within the category of members of the Australian community. Walsh was born in
Ireland, arrived in Australia in 1893, and has made his home here. Johnson was born in Holland,
and is an alien by birth. He arrived in Australia about the year 1910, was naturalized in 1913, and
has made his home here.

Lastly the incidental power must be considered. The Judicial Committee considered this power in
the Sugar Co.'s Case[149]. "These words do not seem to them"--the Judicial Committee--"to do
more than cover matters which are incidents in the exercise of some actually existing power,
conferred by statute or by the common law." Common law or executive power to expel subjects
from Australia without legislative authority has been negatived: legislative authority to warrant the
expulsion of the applicants has been negatived. Nothing is left upon which to found the exercise of
the incidental power unless it be the provision that the executive power of the Commonwealth
vested in His Majesty under sec. 61 of the Constitution extends to the execution and maintenance of
the Constitution. But if the power of deportation is not something "characteristically and naturally"
depending upon the executive power of the Commonwealth, then it cannot, in my opinion, be
dependent upon and included within the legislative power to make laws incidental to the power
vested in the executive Government to execute and maintain the Constitution.

Two minor points remain for consideration:--One, pointed out by my brother Isaacs, that in the
summonses issued to the applicants the Minister recites that he is satisfied that each applicant was
concerned in Australia in acts directed towards hindering trade, &c., or the provision of services by
any department, &c., and that his presence in Australia would be injurious to the peace, order and
good government of the Commonwealth. Consequently, it is said that the Minister did not find any
condition upon which his power to issue a summons to the applicants depended, and that therefore
the whole proceedings were rendered unlawful. It is unfortunate that the summonses were issued in
this form, but the substitution of the word "and" for "or" would not have given the applicants any
greater opportunity of showing cause, though such a summons would have been clearly good.
Again, if the Minister had found both conditions, but the summons had disconnected them, the
proceedings would have been regular under the Act, though objectionable if found in that form in an
indictment or information. To the lawyer, accustomed to the precise allegations of pleadings and
indictments, such an objection seems formidable, though to the layman the point may appear
somewhat pedantic. This Court surmounted a similar difficulty in Welsbach Light Co. of Australasia
v. Commonwealth[150], and I think--though I hold the view with some hesitation when I remember
that the case is one affecting the liberty of the subject--that it may do so here. "If," as Griffith C.J.
said in the case cited[151], "it were provided by law that a person certified by a medical officer to
be in his opinion suffering from any one of four specified kinds of fever which may easily be
mistaken for one another might be removed to a hospital, I do not think that it would be necessary
for him to specify the particular fever from which the person suffered." So here, the issue of the
summons ensues, as a matter of discretion, whichever opinion the Minister forms. You "come to this
conclusion," as the learned Chief Justice said, "by applying the rule that the intention of a legislative
authority is to be ascertained, not by any technical rules applicable to proceedings in criminal cases,
but by having regard to the subject matter, the evil to be remedied, and the nature of the remedy."
The other objection was raised by the applicants; and was directed against the Board and its
proceedings. It was said that the Board was corrupt or might reasonably be suspected of bias, and
gave the applicants no fair opportunity of showing cause against their deportation. As the argument
proceeded, it became quite evident that these contentions were hopeless, both in fact and in law, and
the leading counsel for the applicant Walsh withdrew them, in a somewhat ungracious manner,
namely, "in deference to the opinion expressed by the majority of the Court." The difficulties before
the Board did not arise from any corruption or bias or want of fairness on the part of its members,
but from the dilatory, obstructive and offensive conduct of those who appeared for Walsh.
The rules must, in my opinion, be made absolute, and the applicants released.
Rules nisi absolute with costs. Order that applicants be immediately discharged from custody
without the issue of a writ of habeas corpus.
Solicitors for the applicants, R. D. Meagher & Co.
Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.
[1] [1913] UKPCHCA 4; (1914) A.C. 237; 17 C.L.R. 644.
[2] (1914) A.C., at p. 255; 17 C.L.R., at p. 653
[3] [1923] HCA 39; (1923) 32 C.L.R. 518.
[4] [1908] HCA 63; (1908) 7 C.L.R. 277.
[5] (1908) 7 C.L.R., at p. 306.
[6] (1908) 7 C.L.R., at p. 308.
[7] (1908) 7 C.L.R., at p. 309.
[8] [1908] HCA 63; (1908) 7 C.L.R. 277.
[9] (1923) 32 C.L.R., at p. 581.
[10] [1908] HCA 63; (1908) 7 C.L.R. 277.
[11] (1914) A.C., at p. 256; 17 C.L.R., at p. 655.
[12] [1913] UKPCHCA 4; (1914) A.C. 237; 17 C.L.R. 644.
[13] (1914) A.C., at p. 251; 17 C.L.R., at p. 650.
[14] (1881) 6 App. Cas., at p. 663.
[15] (1881) 6 App. Cas., at p. 671.
[16] (1839) 9 A. & E. 731, at p. 795.
[17] [1799] EngR 561; (1771) 3 Wils. K.B. 172.
[18] (1672) 3 St. Tr., at p 95.
[19] (1923) A.C., at p. 609.
[20] (1923) A.C., at p. 641.
[21] (1923) A.C., at p. 645.
[22] (1890) 15 App. Cas. 506.
[23] (1923) A.C. 603.
[24] (1892) A.C. 326.
[25] (1923) A.C. 603.
[26] (1923) A.C., at pp. 609-643.
[27] (1905) A.C. 128.
[28] [1915] HCA 60; (1915) 20 C.L.R. 299.
[29] (1906) A.C. 542.
[30] (1883) 9 App. Cas. 117.
[31] [1923] HCA 39; (1923) 32 C.L.R. 518.
[32] [1923] HCA 39; (1923) 32 C.L.R. 518.
[33] [1920] HCA 54; (1920) 28 C.L.R. 129.
[34] (1906) 4 C.L.R., at p. 415.
[35] [1923] HCA 39; (1923) 32 C.L.R. 518.
[36] (1862) 31 L.J. P. M. & A. 129. at p. 131.
[37] (1878) 3 App. Cas. 889, at p. 904.
[38] (1905) A.C. 369.
[39] [1915] HCA 58; (1915) 20 C.L.R. 425.
[40] [1920] HCA 36; (1920) 27 C.L.R. 436.
[41] (1920) 27 C.L.R., at p. 441.
[42] (1920) 28 C.L.R., at p. 550.
[43] (1915) A.C. 1011, at p. 1017.
[44] (1890) 15 App. Cas., at p. 529.
[45] (1923) A.C. 603.
[46] (1924) 34 C.L.R., at pp. 521-522.
[47] (1559) 1 Plowd. 199, at p. 205.
[48] (1922) 2 A.C. 339.
[49] (1922) 2 A.C., at p. 365.
[50] (1922) 2 A.C., at p. 390.
[51] (1922) 2 A.C., at p. 397.
[52] [1854] EngR 816; (1854) 4 H.L.C. 815.
[53] (1879) 12 Ch. D. 522.
[54] (1901) A.C., 102.
[55] (1891) A.C. 455.
[56] (1907-08) 6 C.L.R. 309, at pp. 363-364.
[57] [1907] HCA 50; (1907) 5 C.L.R. 233, at p. 238.
[58] (1920) 28 C.L.R., at p. 550.
[59] (1886) 11 App. Cas. 197.
[60] (1924) 264 U.S., at pp. 32-39.
[61] (1891) A.C. 455.
[62] (1878) 3 App. Cas., at p. 904.
[63] [1912] USSC 166; (1912) 225 U.S. 460.
[64] [1913] UKPCHCA 4; (1914) A.C. 237; 17 C.L.R. 644.
[65] (1913) 17 C.L.R. at p. 645.
[66] (1913) 17 C.L.R., at pp. 653-655.
[67] (1914) A.C., at p. 256; 17 C.L.R., at p. 655.
[68] [1920] HCA 36; (1920) 27 C.L.R. 436.
[69] (1923) A.C., at p. 609.
[70] (1923) A.C., at p. 621.
[71] (1923) A.C., at p. 639.
[72] (1923) A.C., at p. 646.
[73] (1890) 24 Q.B.D. 634, at p. 639.
[74] (1696) 5 Mod. 137.
[75] [1769] EngR 69; (1769) 4 Burr. 2471.
[76] (1827) 1 Y. & J. 221.
[77] (1916) 2 Ch. 211, at pp. 230, 231.
[78] [1916] HCA 59; (1916) 22 C.L.R. 268.
[79] (1916) 22 C.L.R., at p. 276.
[80] (1916) 22 C.L.R., at p. 277.
[81] [1923] HCA 39; (1923) 32 C.L.R. 518.
[82] [1908] HCA 28; (1908) 5 C.L.R. 818.
[83] (1924) A.C. 222.
[84] [1908] HCA 63; (1908) 7 C.L.R. 277.
[85] [1923] HCA 39; (1923) 32 C.L.R. 518.
[86] Ante, p. 64.
[87] (1891) A.C. 272.
[88] (1803) 8 Ves. 256, at pp. 292-294.
[89] (1913) 1 Ch. 510, at p. 514.
[90] (1899) 2 Ch. 536.
[91] [1917] HCA 63; (1917) 24 C.L.R. 120.
[92] (1925) A.C., see p. 408.
[93] (1908-09) 8 C.L.R., at pp. 414, 415.
[94] (1881) 7 App. Cas. 96.
[95] (1914) A.C., at p. 255.
[96] (1914) A.C. 237.
[97] (1819) 4 Wheat. 316, at p. 411.
[98] [1842] EngR 593; (1841-4) 4 Moo. P.C.C. 63.
[99] (1841-42) 4 Moo. P.C.C., at pp. 88 et seqq.
[100] [1858] EngR 321; (1858) 11 Moo. P.C.C. 347.
[101] (1866) L.R. 1 P.C. 328.
[102] (1886) 11 App. Cas. 197.
[103] [1912] HCA 12; (1912) 13 C.L.R. 592.
[104] (1886) 11 App. Cas., at p. 203.
[105] (1841-42) 4 Moo. P.C.C., at p. 88.
[106] (1819) 4 Wheat. 316.
[107] [1916] HCA 13; (1916) 21 C.L.R. 205, at p. 214.
[108] (1915) 20 C.L.R., at p. 433.
[109] (1915) 20 C.L.R., at p. 449.
[110] [1913] UKPCHCA 4; (1914) A.C. 237; 17 C.L.R. 644.
[111] [1903] USSC 67; (1903) 188 U.S. 505.
[112] (1903) 188 U.S., at p. 507.
[113] [1915] HCA 58; (1915) 20 C.L.R. 425.
[114] (1881) 6 App. Cas., at p. 671.
[115] [1912] UKHL 3; (1913) A.C. 107, at p. 118.
[116] (1891) A.C. 455.
[117] [1921] HCA 58; (1921) 29 C.L.R. 243.
[118] [1875] USSC 58; (1875) 92 U.S. 10.
[119] [1880] USSC 144; (1880) 102 U.S. 135.
[120] (1881) 6 App. Cas., at p. 671.
[121] (1914) A.C., at p. 254; 17 C.L.R., at p. 653.
[122] (1914) A.C., at p. 255; 17 C.L.R., at p. 654.
[123] (1891) A.C. 272.
[124] (1892) A.C. 491.
[125] [1921] UKHL 1; (1921) 2 A.C. 262.
[126] [1917] UKHL 1; (1917) A.C. 260.
[127] [1917] UKHL 1; (1917) A.C. 260.
[128] [1916] HCA 36; (1916) 21 C.L.R. 433.
[129] [1918] HCA 47; (1918) 25 C.L.R. 241.
[130] [1923] HCA 39; (1923) 32 C.L.R. 518.
[131] [1920] HCA 36; (1920) 27 C.L.R. 436.
[132] [1920] HCA 42; (1920) 28 C.L.R. 588.
[133] [1893] USSC 185; (1893) 149 U.S. 698.
[134] [1912] USSC 166; (1912) 225 U.S. 460.
[135] [1922] USSC 120; (1922) 259 U.S. 276.
[136] [1903] USSC 101; (1903) 189 U.S. 86.
[137] [1905] USSC 117; (1905) 198 U.S. 253.
[138] [1924] USSC 35; (1924) 264 U.S. 32.
[139] (1917) A.C., at p. 271.
[140] [1923] HCA 39; (1923) 32 C.L.R. 518.
[141] (1922) 1 A.C. 191.
[142] (1925) A.C., at p. 414.
[143] [1913] UKPCHCA 4; (1914) A.C. 237; 17 C.L.R. 644.
[144] [1923] HCA 39; (1923) 32 C.L.R. 518.
[145] [1908] HCA 63; (1908) 7 C.L.R. 277.
[146] (1908) 7 C.L.R., at p. 308.
[147] [1908] HCA 63; (1908) 7 C.L.R. 277.
[148] [1923] HCA 39; (1923) 32 C.L.R. 518.
[149] (1914) A.C., at p. 256; 17 C.L.R., at p. 655.
[150] [1916] HCA 59; (1916) 22 C.L.R. 268.
[151] (1916) 22 C.L.R., at p. 276.

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