Williamson v Ah On [1926] HCA 46

v fou Faulding BM ating VW raaing Fl Faulting iholasvR Aigblasy R ee (& Co Lid 18) 72 (2002) Pie WS EG Peele Ree iy ito GeO, Gants SS WAR 39 C.L.R.] OF AUSTRALIA. 95 Vitor mger ASS

{HIGH COURT OF AUSTRALIA.]

WILLIAMSON A : : ' : : . APPELLANT; CoMPLAINANT,

AND

AH ON . 5 5 - * 5 . ' . RESPONDENT. DEFENDANT,

ON APPEAL FROM A COURT OF PETTY SESSIONS OF WESTERN AUSTRALIA.

Immigration—Powers of Commonwealth Parliament—Incidental power—Prohibited immigrant—Prosecution—Evidence—Burden of proof—Averment in information Jurisdictional fact—Retrospective legislation—Res judicata—The Constitution (63 & 64 Vict. c. 12), sec. 51 (xxvut.), (XXXIX.)—Immigration Act 1901-1925 (No. 17 of 1901—No. 7 of 1925), secs. 3, 5, 7, 18.

Held, by Isaacs, Powers, Rich and Starke JJ. (Knox C.J. and Gavan Duffy J. dissenting), that the Parliament of the Commonwealth has power under see. 51 (xxvuL) and (xxxrx.) of the Constitution to cast upon a person prosecuted upon a charge of being a prohibited immigrant found within the Commonwealth the burden of proving that he is not an immigrant, as well as that he has not evaded an officer of Customs; and, therefore, that sub-sees. 3, 34 and 32 of sec. 5 of the Immigration Act 1901-1925 are valid.

Per Higgins J. :—Sec. 5 (3) and (3) is valid so far as regards the averment that the defendant "evaded an officer." Parliament has full power under sec, 51 (xXx1x.) of the Constitution to prescribe on whom the burden of proof lies as to a necessary fact, when an offence is alleged against its valid Act ; but, queere, bas it power to prescribe as to the burden of proof of the fact (immigration) which alone gives it power to make the law? In this case, the evidence of immigration, in 1911, is sufficient without the aid of the section.

Held, also, by Isaacs, Higgins, Powers, Rich and Starke JJ., that those sub-sections apply on a prosecution instituted after the passing of the Zmmigra- tion Act 1925 in respect of an act of immigration which is alleged to have taken place after the passing of the Immigration Restriction Act 1901 and before the passing of the Immigration Act 1925.