South easralig Australia 67 ia 161 i 148 'ALR 553 51s HIGH COURT (HIGH COURT OF AUSTRALIA.} THE KING AGAINST MACFARLANE AND OTHERS. Ex parte O'FLANAGAN ayp Ex parte O'KELLY. O'FLANAGAN AND OTHERS . " - . Prat' AGAINST MACFARLANE AND OTHER' . Derrenp H.C, or A, Constitutional Law—Powers of Commonwealth Parliament—Immigration—Exten 1923. power—Deportation after entering Commonwealth—British subject—Intention | ated settle—Visitor to Commonwealth—The Constitution (63 & 64 Vict. c. 12), MELsourNE, 51 (xxvut.), 71—Immigration Act 1901-1920 (No. 17 of 1901—No. 51 of 192 May 29-31; sec. 8a*—Prohibition—Quo warranto—Certiorari—Board appointed to Tune 1. mend as to deportation—Non-judicial tribunal—Action to restrain J proc Perens before Board—Injunction—Interlocutory injunction—Challenging valAug. 28... «oe 8a ot the Immigration Aré10D1..>. alli formue cf aside at an Knox c.3,, 1920 provides that '(1) Where the abolition of organized gover Isaacs, Higgins, Minister is satisfied that, within three who advocates the assassination 0 Rich and" years after the arrival in Australia of a public officials or who advocat Starke JJ. person who was not born in Australia, teaches the unlawful destruc that person . . . (d) is a person property, or who is a member who advocatesthe overthrow by foree or __ affiliated' with, any organization violence of the established government __ teaches any of the doctrines and of the Commonwealth or of any State, tices specified in this pa or of any other civilized country, or of he may, by notice in writing, O.L.R.] OF AUSTRALIA. ~ Commonwealth statute—Criminal prosecution pending—Canse of action—A ppre- hension of irreparable injury—Judiciary Act 1903-1920 (No. 6 of 1903 of 1920), secs. 31-33, 80—Crimes Act 1914-1915 (No. 12 of 1914— 1915), sec. 244 [War Precautions Act Repeal Act 1920 (No. 54 of 1920), sec. 12]. Held, by Knox C.I., Isaacs, Rich and Starke JJ. (Higgins J. doubting), that sec. 84 of the Immigration Act 1901-1920 is a law with re and is therefore within the legislative power of the Commonwealth Parliament "conferred by sec. 51 (xxvut.) of the Constitution. et to immigration, Held, also, by Knox C.J., Isaacs, Higgins, Rich and Starke JJ., that a Board appointed pursuant to sec. 8a was not a judicial tribunal, that is, a tribunal empowered to give a decision creating or declaring an obligation ; and, there- fore, that prohibition wouid not lie to prevent the Board from proc' ding with the matter of a summons issued under the section to show cause against deportation ; and that neither quo warranto nor certiorari was an appropriate _ remedy to prevent the Board from so proceeding. 'The two plaintifis, who were British subjects born in Ireland and had recently arrived in the Commonwealth, had been arrested on a charge, under sec, 244 of the Crimes Act 1914-1915 (enacted hy sec. 12 of the War Precautions Act Repeal Act 1920), of being engaged in a seditious enterprise. While that charge was pending the plaintiffs were summoned to appear before a Board appointed under sec. 8 of the Immigration Act to show cause why they should not be deported. The plaintiffs thereupon instituted an action in the High Court _ against the members of the Board claiming an injunction restraining the defen- dants from proceeding further with the matter of the summons. application by the plaintiffs for an interlocutory injunction, Held, that the application should be refused : On an By Knox C.J., Isaacs, Rich and Starke Jd., on the ground that sec. 8A of the Immigration Act is a valid enactment and applied to the plaintiffs ; _ By Higgins J. on the ground that there was no such irreparable injury or urgency as warranted an interlocutory injunction. Held, by Knox C.J., Isaacs and Rich JJ. (Higgins J. dissenting, Starke J. doubting), that the fact that the plaintitts would be prejudiced in their defence on the criminal charge by the continuation of proceedings before the Board _ would, if sec. 84 were invalid, be a ground for granting injunction. an interlocutory € person to appear before a Board hin the time and in the manner scribed, to show cause why he sh not be deported from the ommonwealth. (2) A Board ap- pointed for the purposes of the last ng sub-section shall consist of e members to be appointed by the in (3) The Chairman shall be person who holds or has held the fice of Judge, or Police, Stipendiary or Special Magistrate. (4) (a) If the person fails, within the prescribed time, to show cause why he should not be deported, or () the Board recommends that he 'be deported from the Com- monwealth, the Minister may make an order for his deportation, and he shall be deported accordingly. (5) Pending deportation the person may be kept in such custody as the Minister directs." H.C. of A. 1923. ~~ Tue Kine PARTE, O'FrANAGAN AND O'Keniy. H. C. or A. 1923. ~~ Tue Kine san 1923 they were arrested on warrants charging them with by HIGH COURT Orvers Nist and Motion. About 13th March 1923 Michael O'Flanagan and John Ji O'Kelly, each of whom was a British subject born in Ireland, a in the Comthonwealth; each of them having a passport issued ] the Imperial Secretary of State for Foreign Affairs. On 30th Ap engaged in a seditious enterprise under the Crimes Act 1914-19) amended by the War Precautions Act Repeal Act 1920. On 8th 15th May respectively, O'Flanagan and O'Kelly were served ¥ summonses to appear before a Board, consisting of William M pherson Macfarlane, Henry Edward Manning and John Stinson appointed under sec. 84 of the Immigration Act 1901-1920, to show cause why they should not be deported. On 11th May, O'Flana; and O'Kelly appeared before the Board, and objection was taken their behalf to their being called on to show cause why they sho not be deported, and on 19th May the objection was overruled. dia 'y Magistrate informant the hearing was adjourned until 5th June. On 2: May, O'Flanagan and O'Kelly each obtained an order nisi ca upon the members of the Board, the Minister administering Immigration Act and the Commonwealth to show cause why a ¥ of prohibition should not issue to prohibit further proceedings before the Board upon the summons served on him and from making recommendation to the Minister in respect of his deportation ; a in the alternative, to show cause why leave should not be grante exhibit an information of quo warranto, or why the applicant sho not have relief of a like nature to quo warranto; or why, in th alternative, a writ of certiorari should not issue. The grounds each case wer (a) That the Commonwealth Parliament had n power to pass sec. 84 of the Immigration Act 1901-1920 in its presen form; (b) in the alternative that the section is invalid so far as applies to British subjects; (c¢) that sec. 8a is invalid because attempts to vest in the Board portion of the judicial power of the Commonwealth and the judicial power of the Commonwealth can only be exercised by the High Court or other Federal Courts create by Parliament or State Courts vested with Federal jurisdiction ;— OF AUSTRALIA. 521 d) that there is no authority in the Commonwealth to legally deport H- ©. oF a. om the Commonwealth the holder of a passport issued by the 19? perial Secretary of State for Foreign Affairs to a British subject Time Kiva after the term of the passport expires or is cancelled. Meee On 22nd May, O'Flanagan and O'Kelly and John Leo Francis Clancy instituted an action in the High Court against the members if the Board by a writ claiming (1) a declaration that the defendants had no authority to proceed further as a Board in the proceedings in hich the first two defendants were being called upon to show cause they should not be deported, and (2) an injunction restraining the defendants from proceeding further in or about such matters. Other material facts appear in the judgments hereunder. The orders nisi now came on for hearing. Watt K.C. and Evatt, for the prosecutors. The High Court has iction in this matter under sec. 75 (11.) of the Constitution; for the Commonwealth is behind the Minister in his claim to deport the utors. If it has not jurisdiction under sec. 75 (r11.), it has under 75 (v.); for the Minister is an officer of the Commonwealth. Pro- ition will lie here: for the Board, as constituted by sec. 84 of the gration Act 1901-1920, is a Court and purports to act as a Court. recommendation of the Board against deportation is final; if t does not recommend deportation the prosecutors cannot be orted. Prohibition will go to a person who assumes, under colour legislative authority, to act as a tribunal affecting the rights of sons (R. v. Hibble; Ex parte Broken Hill Proprietary Co. (1); In Clifford and O'Sullivan (2); Huddart, Parker & Co. Proprietary d. v. Moorehead (3); Kimber v. Press Association (4); R. v. Ker- d (5)). {Isaacs J. referred to R. v. Local Government Board (6); R. v. aguire (7). 'The substance of a recommendation of a Board under sec. 8a is pronouncement which directly affects the rights of the parties (1) (1920) 28 C.L.R., 456. (5) (1898) 19 (2) (1921) 2 A.C., 570, at p. 582. (6) (1902) 2 LR., (3) (1908-09) 8 C.L.R., 330. (7) (1923) 2 LR., 58. (4) (1893) 1 Q.B., 65, at p. 73. ".L.R. (L.), 392. 522 HIGH COURT H.C. or A. summoned before it, and the fact that execution of the pronoun 1923. ment is carried out by a third party does not differentiate the ¢ from R. v. Hibble; Ex parte Broken Hill Proprietary Co. (1). proceedings of the Board are judicial proceedings dealing y _ matters affecting the liberty of the subject. (See Waterside Wor < Federation of Australia v. J. W. Alexander Ltd. (2); New South W v. Commonwealth (3).) (4).] The meaning of prohibition had been extended in New South before the Constitution was passed, and this Court is not limit to the same extent as the Courts in England are as to g prohibition. Secs. 30-33 of the Judiciary Act are an extension of the power to grant prohibition, and the writ may be issued wh a body which has no legal right assumes a power which it has no got. [Srarke J. referred to J'ramways Case [No. 1] (5). [Isaacs J. referred to Peck v, Adelaide Steamship Co. (6).] 'A recommendation of the Board affects rights just as much 2 does a verdict. From the moment of recommendation of depot tion the person affected can be deported at the will of the Mii 'The presumption is that there will be a judicial proceeding before th liberty of the subject will be interfered with. "oa [Ricu J. referred to R. v. Campbell (7).] If prohibition will not lie, quo warranto will. There is a wron assumption, under pretence of statutory authority, of part of judicial power of the Commonwealth. The writ is appro] regardless of whether the Board is or is not sitting as a Court. { 30 of the Judiciary Act enlarges the jurisdiction of the High giving it jurisdiction over this subject matter, and the remed largely within the control of the Court. Sec. 32 gives the power to grant any remedy. Lamb K.C. and C. Gavan Duffy, for the respondents, were not called upon as to the matters argued. (1) (1920) 28 C.L.R., 456. (5) (1914) 18 C.LLR., 54. (2) (1918) 25 C.LLR., 434. (6) (1914) 18 C.L.R., 167. (3) (1915) 20 C.L.R., 54. (7) (1921) 2 K.B., 473, at p. 480. (4) (1908) 6 C.L.R., 466. OF AUSTRALIA. 523, By permission of the Court, and with the consent of the defendants, H.C. or A. for the plaintifis in the action for an injunction then moved 12+ an interlocutory injunction pending the hearing of the action. TH» Kie ' vw. Mac 'Watt K.C. and Evatt, for the plaintifis. An injunction should go bre to restrain the Minister on the ground that sec. 8a of the Immigration O'F ta AND is ultra vires. An injunction will lie in such a case. The matter O'Ketxy. is one which involves the interpretation of the Constitution, and secs. 75 (v.) and 76 of the Constitution and secs. 30 to 33 and sec. 80 of the Judiciary Act this Court has jurisdiction to grant an njunction. Sec. 76 of the Constitution gives this Court the widest owers in order to prevent an infringement of the Constitution. - [Kox €.J. referred to Thomas v. Williams (1). {Ricu J. referred to Ellis v. Earl Grey (2); New South Wales v. Commonwealth (3); Richardson v. Methley School Board (4).] The plaintiffs' liberty is put in jeopardy by the proceedings before the Board, and their rights are thereby interfered with. If there is shown a reasonable apprehension of a wrong being done by the ontinuance of an act done by a person who claims to act under a tatute which is unconstitutional, this Court may grant an injunc- There is a reasonable apprehension of an adverse decision by Board which may have the result of what is contended to be an deportation. Knox C.J. referred to London and Blackwall Railway Co. v. Cross isaacs J. referred to Harris v. Beauchamp Brothers (6). ceins J. referred to In re Sawyer (7). '[Srarxe J. referred to Attorney-General for New South Wales v. 'y Employees' Union of New South Wales (8).] here is forced upon the plaintiffs a choice whether they will or will defend themselves before the Board, and since the sanction behind ie choice imperils their liberty they are entitled to an injunction. 'he facts of which the Minister was satisfied are those which con- 'Stitute the charge made against the plaintiffs in the pending criminal (1880) 14 Ch. D., 864. (5) (1886) 31 Ch. D., 354, (2) (1833) 6 Sim., 214. (6) (1894) 1 Q.B., 801. (8) (1915) 20 C.L.R., at p. 65. (7) (1887-88) 124 US., 220, (4) (1893) 3 Ch., 510, at p. 514. (8) (1908) 6 C.L.R., 469. 524 HIGH COURT H.C. or A. prosecution. The statement that he was so satisfied was publi ay before the Board, and was calculated to interfere with the trial Tue Kixe Plaintiffs on that prosecution, and interfered with the pla v. Macrar- ee the Immigration Act is invalid, the action in appointing the O'Franacas amounts to a contempt of Court, which is a ground for gran' O'Kuncw. injunction (see Halsbury's Laws of England, vol. xvu., p. 270, 572; Kitcat v. Sharp (1). [Isaacs J. referred to R. v. Clement (2). [Starke J. referred to Cruickshank v. Bidwell (3).] Sec. 8a of the Zmmigration Act is invalid ; for the power confer by sec. 51 (xxvu.) of the Constitution to legislate with res] immigration does not extend to the deportation of a British subjec right to have the trial conducted without comments. If sec, who has or may become resident in the Commonwealth, for a qualifying cause which may not have existed at the time of his ent son entering the Commonwealth, but not conditions subseqi the entry. [Counsel referred to Potter v. Minahan (4) ; v. Brenan (5).] The word "immigration " implies an inten to settle in the country, and the power in sec. 51 (xxvut.) of tl Constitution does not extend to visitors to Australia. See. 84 is invalid because it attempts to enable a Minister to exercise a po ti of the executive power of the Commonwealth, whereas by sec. 61 the Constitution that executive power is vested in and is exer ry by the Governor-General. The only authority to delegate 1 power is in sec. 64, which enables the Governor-General to app officers to administer the Departments. Deportation is obvious matter which falls within the executive power of the Commonweal {Counsel referred to Commonwealth v. Colonial Combing, and Weaving Co. (6); Inglis Clark's Australian Constit Law, pp. 52, 68; Harrison Moore's Commonwealth of Aus 2nd ed., pp. 162, 163.] (1) (1882) 52. L.J. Ch., 134. (4) (1908) 7 C.L.R., 277. (2) (1821) 4 B. & Al 8. (5) (1906) 4 C.L.R., 395, at p. 407. (3) (1899-1900) 176 U 3. (6) (1922) 31 C.L.R., 421, at pp. 452-4 CLR.) OF AUSTRALIA. amb K.C. (with him C. Gavan Duffy), for the defendants. The will not consider the validity of an Act of the Commonwealth iament unless it is absolutely necessary. The question whether e Board will or will not proceed with its inquiry depends upon the aintifis themselves. If there were no Act of Parliament behind the is nothing illegal or wrong in that (Clough v. Leahy (1)). As to ny prejudice that may arise from publication of the proceedings, there is an adequate remedy in the Supreme Court of New South Wales if any right of the plaintiffs in the Police Court is affected. 7 e power conferred by the Constitution as to immigration enables e Commonwealth Parliament to prevent a person whose presence n the Commonwealth is undesirable from coming in; and the com- ent of that power is to expel such a person if he has come into the ommonwealth. The immigration laws of the several Colonies before Federation contained provisions similar to those of sec. 8a, nd applying to British subjects and visitors (see Zmmigration iction Act (1898) (N.S.W.); Immigration Restriction Act 1897 A.) ), and the intention of sec. 51 (xxvit.) was to give to the Com- onwealth Parliament the same power as to immigration which the dlonies had. The term "immigrate" is satisfied by coming into he Commonwealth (Chia Gee v. Martin (2); Ah Yin v. Christie {Counsel also referred to Attorney-General for Canada v. in and Gilhula (4); Hazelton v. Potter (5).] Watt K.C., in reply. The colonial Acts only applied to " immi- nts," that is, persons who came with the intention of settling ; it the mere landing was prima facie evidence of the intention to Cur, adv. vult. Kxox C.J. Each of the orders nisi will be discharged with costs. motion for an interlocutory injunction will be refused with The Court will deliver its reasons later. (1) (1904) 2 C.L.R., 139, at p. 157. (4) (1906) A.C., 542. (2) (1905) 3 C.L-R., 649. (5) (1907) 5 C.L.R., 445 (1907) 4 C.L.R., 1428. VOL, XXXL. 36 ister, he would simply be asking certain persons their opinions as O'Ftaxacan o whether they think that the plaintiffs should be deported. There O'Kexty. June 1. 526 HIGH COURT H.C.or A. The following written judgments were delivered :— ae Knox C.J. The King v. Macfarlane; Ex parte O' Flanagan.- Tur Kixe is an application to make absolute an order nisi for prohibi directed to William Macpherson Macfarlane, Henry Ed Manning and John Stinson, constituting a Board appointed ur < sec, 84 of the Immigration Act 1901-1920, the Minister admi tering that Act, and the Commonwealth, to prohibit further p ings before the Board in respect of a summons calling upon prosecutor to show cause why he should not be deported Commonwealth. In the alternative the prosecutor asks for re in the nature of quo warranto or a writ of certiorari. a Sec. 8a of the Act is in the words following :—' (1) Wh Minister is satisfied that, within three years after the ari Australia of a person who was not born in Australia, that (a) has been convicted in Australia of a criminal offence pr by imprisonment for one year or longer ; (b) is living on the pros tion of others; (¢) has become an inmate of an insane asyh public charitable institution ; or (d) is a person who advocats overthrow by force or violence of the established government of Commonwealth or of any State, or of any other civilized cor or of all forms of law, or who advocates the abolition of or; government, or who advocates the assassination of public offici who advocates or teaches the unlawful destruction of property, who is a member of, or affiliated with, any organization which tes any of the doctrines and practices specified in this paragraph, he mi by notice in writing, summon the person to appear before a within the time and in the manner prescribed, to show cause wl should not be deported from the Commonwealth, (2) A Bi appointed for the purposes of the last preceding sub-section sl consist of three members to be appointed by the Minister. (3) Chairman shall be a person who holds or has held the office of Ju¢ or Police, Stipendiary or Special Magistrate. (4) (a) If the pe fails, within the prescribed time, to show cause why he should not deported, or (b) the Board recommends that he be deported fre the Commonwealth, the Minister may make an order for his dep ort tion, and he shall be deported accordingly. (5) Pending depo the person may be kept in such custody as the Minister din OF AUSTRALIA, e Minister has under this section summoned the prosecutor in each to appear before a Board consisting of the respondents Mac- ed from the Commonwealth. The ground on which this ication is based is that the enactment contained in sec. 8a is nd the power of the Commonwealth Parliament. but before the ity of the section can be called in question the Court must be sfied that either prohibition, or certiorari, or relief in the nature Board is acting without statutory authority. As to prohibition is well settled that the writ will not issue except to a Court or judicial nal having some jurisdiction which it is attempting to exceed er Viscount Cave in In re Clifford and O'Sullivan (1)). In R. v. Government Board (2) Palles C.B. laid down that to erect a cial, the essential element is that it should have power by its ination within jurisdiction to impose liability or affect rights. ng that the Board is acting or attempting to act as a Court or al tribunal. It has no power by its determination to impose obligation on any person or to affect any person's rights. Its le function is to recommend—i.e.. to advise the Minister—whether If it recommends deportation, the Minister is at liberty to or to refrain from acting, on the advice given. In my opinion, I am therefore of opinion that the writ of prohibition is an appropriate remedy in this case, even assuming the Board to e no statutory authority to proceed with the inquiry which it gun. ief in the nature of quo warrantois no less inappropriate. An ation in the nature of quo warranto will only lie in cases in h an office has been lawfully created by charter or by statute, bject being to prevent the usurpation of an office. Proceedings s nature cannot be used to attack the legality of the creation of (1) 1921) 2 A.C, at p. 583. (2) (1902) 2 LR., at p. 373. H.C. or A. 1923. ~ Tue Kine LANE ; Ex PARTE O'FLanaGaNn AND O'Kexty. Knox C.J. H.C. oF A. 1923. AN O'Ketty. Knox C.J. obviously inappropriate. HIGH COURT the office. In the present case it is the legality of the po appoint the Board and not the legality of its appointment tha challenged by the prosecutor. No argument was addressed to the Court in support of the appli tion for the writ of certiorari, and in my opinion that remedy What I have said with regard to Ex parte O° Flanagan al applies to Bx parte O'Kelly. The orders nisi should be discharged. O'Flanagan vy. Macfarlane-—This was an application for ' interim injunction restraining the defendants from proceeding furtl as a Board in the proceedings in which the plaintiffs O'Flanagan an O'Kelly are being called on to show cause why they should n deported. The facts relating to the appointment of the Board and the su moning of these plaintiffs to show cause are stated in the given by me on the application for prohibition made by them. i evidence shows that the plaintifis are British subjects and before they were summoned to show cause before the Board the} were arrested on warrants charging them with being engaged it seditious enterprise under the Crimes Act 1914-1915 as amend the War Precautions Act Repeal Act 1920, and that they have b remanded on bail on that charge. It is admitted that the case w will be made for the prosecution on that charge is to a great ex the same as that which is to be investigated by the Board. In th circumstances it is clear that the investigation of the case before t Board, which will probably necessitate the plaintiffs tendering the selves as witnesses, the conclusion at which the Board arriv unfavourable to the plaintiffs, and the order of deportation the Minister has power in that event to make, may seriously prejud the plaintiffs in their defence to the criminal proceedings which hay been launched. Apart from the stigma which will attach in tl event of an adverse finding, they may and probably will be practic compelled prematurely to disclose their defence to the crimin charge. The claim to an injunction is based on the alleged invalidity R.) OF AUSTRALIA. 529 8a of the Immigration Act 1901-1920 as being beyond the H- C. oF A. tive power of the Commonwealth Parliament. Ral he first question to consider is whether this Court should enter- Tux Kixe an interlocutory application for an injunction based upon the Macgan- invalidity of a Commonwealth enactment. The same ques- has been the subject of judicial decision in the United States. In OF La ickshank v. Bidwell (1) Fuller C.J., delivering the opinion of the O'Kerty. 4 "Tt is settled that the mere fact that a law is constitutional does not entitle a party to relief by injunction said : Knox CJ. t proceedings in compliance therewith, but it must appear that has no adequate remedy by the ordinary processes of the law, or the case falls under some recognized head of equity jurisdiction"; id the learned Chief Justice says (2) :—" Inadequacy of remedy at w exists where the case made demands preventive relief, as, for stance, the prevention of multiplicity of suits, or the prevention irreparable injury. . . . The mere assertion that the appre- acts will inflict irreparable injury is not enough. Facts must alleged from which the Court can reasonably infer that such ould be the result." The power of this Court to grant injunctions at least as wide as, and probably wider than, that conferred on e Supreme Court of the United States. The fact that the plaintiffs' rights cannot be adequately protected indicated, or the apprehended injury remedied or atoned for by es, is in general sufficient to establish that the injury is able for the purpose of exercising jurisdiction by way of ion (see Attorney-General v. Hallett (3) ). the assumption that sec. 8a of the Act is invalid, I feel no doubt the present case is one in which the injury apprehended by the iffs from the continuance of the proceedings before the Board able, in the sense in which that word is used in the opinion above. The plaintiffs are put in a dilemma. They may a good answer to the charge made against them by the Minister, they must either refuse to show cause before the Board or show a In the former event, they are liable to be deported by order f the Minister; in the latter, they cannot reasonably expect to avoid (1) (1899-1900) 176 U.S., at p. 80. (2) (1899-1900) 176 U.S., at p. 81. (3) (1847) 16 M. & W., 569, at p. 581. H.C. of A. 1923. ~~ Tue Kine v Macrar- LANE ; Ex parte O'FLaNaGaN AND O'Ketty. Knox J. HIGH COURT disclosing the case which they propose to make in answer charge of being concerned in a seditious enterprise. In. these cumstances I think the Court is justified in allowing the qu whether sec. 84 of the Act is valid to be raised on this applicati Tn considering the question whether sec. 8a of the Act is a vs enactment, it may be assumed that the power under which the to enact it is claimed is that contained in see. 51 (xxvu.) of the € stitution—to make laws with respect to immigration and emigrat The enactment, which is expressed in plain and unambiguous ¥ applies to any person not born in Australia who arrives in Austral and provides for the deportation of such a person if within th years after his arrival he answers to any of the descriptions s in clauses (a), (b), (c) and (d). The main grounds on which the objection to the validity provision was founded were (1) that the section purports to: in the Board portion of the judicial power of the Common wealth Parliament has no power to legislate for the exclusion deportation of British subjects; (3) that the power to legislate respect to immigration does not authorize legislation extend persons coming into Australia without the intention of se there; (4) that the power referred to does not authorize legis providing for the deportation of persons who have come into portion of the executive power of the Commonwealth. The first ground is substantially covered by the reason give plainly ministerial and not judicial. The reasons given for | decision in Huddart, Parker & Co. Proprietary Ltd. vy. Moorel completely cover this point (see particularly per O°Co Q) ). The second ground is covered by the observations of Griffith | (1) (1908-09) 8 C.L.R., 330, (2) (1908-09) 8 C.L.R., at pp. 377-4 31. »0.L.R.) OF AUSTRALIA. nd O'Connor J. and of my brother Isaacs in Potter v. Minahan (1). ifth C.J. says (2): "There is no doubt that a British subject to the Commonwealth from another part of the British nions may be an immigrant within the meaning of the Con- s allegiance to the British Empire and obedience to its laws. 'ively he is entitled to the benefit and protection of those and is entitled, among other things. to entry and residence in ny part of the King's Dominions except in so far as that right has een modified or abolished by positive law. But the British Empire subdivided into many communities, some of them endowed by erial statute with wide powers of self-government, including power to make laws which, when duly passed and assented to by the Crown, will operate to exclude from their territories British jects of other communities of the Empire. To this extent the h subject's right to enter freely into any part of the King's Dominions may be modified by statute law." My brother Isaacs (4) :—'"' It is not, and cannot be, disputed that the right unre- tricted at common law of all British subjects wherever born outside tralia to enter the Commonwealth is made subject to the pro- ms of the Act. Where their physical or moral conditions would mstitute them a public peril they are excluded, no allowance being le for their common nationality." See also Attorney-General the Commonwealth v. Ah Sheung (5). In my opinion this ground objection entirely fails. 'The third ground raises the question whether " immigration " in e. 51 (xxvu.) of the Constitution connotes entry into Australia ith the intention of settling or residing there, or, on the other hand, s to any entry into Australia of a person not born in Australia 'not having previously had his home there, independently of any uch intention on the part of the person entering. On this point oI have the guidance of observations made in cases decided by s Court. In Chia Gee v. Martin (6) Griffith C.J. said :-—* It was (1) (1908) 7 C.L.R., 277. (4) (1908) 7 ., at p. 310. (2) (1908) 7 C.L.R.. at pp. 288-289. (5) (1906) 4 C.L.R., 949, at p. 951. (1908) 7 C.L.R., at pp. 304-305. (6) (1905) 3 C.L.R., at p. 654. H.C. or A. 1923, ——) Tue Kine Ma Knox C.J. H.C. or A. 1923. iG Macrar- LAN: Ex part O'FLANAGAN AND O'FKetty. Knox C.J. HIGH COURT suggested that the term 'immigrant' in this Act means a p 'who arrives in the Commonwealth with the intention of becomi a permanent resident.' The word may have that meaning in contexts. When you are contrasting immigrants with member of a crew, that may be a convenient distinction to take, but the pu pose of this Act is clearly to prevent entry into the Commonwea the test is one to be applied on entry, and the question whether a mar is an immigrant must be a matter capable of being determined and there. If would be reducing the Act to a nullity if it were h that the test of whether a man were an immigrant or not was to b some intention in his mind, which intention the Commonvealt authorities might have no means of discovering." Barton O'Connor JJ. concurred. It follows from this decision that in opinion of the Court " immigration " in the Constitution must been regarded as extending to mere entry into the Commonwealt for otherwise the Act which made entry the test would have bei invalid. To hold that absence of intention to settle or reside in Commonwealth on the part of a person entering is sufficient prevent his exclusion under a law with respect to immigrati would, in my opinion, render nugatory for all practical purposes power to exclude undesirable immigrants, which is admittedly ferred on the Commonwealth Parliament by sec. 51 (xxvut.) of Constitution. The word "immigration" is undoubtedly ea of meaning entry with the intention of settling or becoming a resi but it is also capable of the wider meaning which excludes the elem of intention ; and it was in this wider sense that it was used in the New South Wales Immigration Restriction Act 1898 (No. 3 of 1898) and the West Australian Act of 1897, which were in force when the Con- stitution was drawn up and when it became law. I see no reason doubt that it was used in the same sense in sec. 51 (xxvit.) of Constitution, with the intention of conferring on the Commonwealt Parliament the full powers of exclusion of strangers theretof exercised by the Parliaments of at least some of the States. TI view is, I think, supported by reference to sec. 92 of the Constitution which prohibits legislation directed to the prevention of inter-Sta' migration. It can hardly have been intended to leave with a State Parliament power to prohibit the entry of strangers coming directly ; C.L.R.J OF AUSTRALIA. 1 (xxvu.) should not be co ting the idea of intended settlement or residence, but yvather as aintifis to concede, and I do not think it is possible to deny, that e Commonwealth Parliament had power to prohibit absolutely e entry into Australia of any person who is an " immigrant." If be so, it seems to follow that Parliament may prescribe the ions on which an "immigrant" may be permitted to enter. eshall be liable to be deported—that is to say, his entry is permitted n probation. If during that probationary period he proves to be reed by the only really effective method—deportation. The ent against the validity of the section was really founded on hardship that might result from its enforcement, but this is elevant when, as here, the question is as to the extent of the power onferred on Parliament. The policy of the Act is a matter with hich this Court is not concerned. In my opinion this ground of bjection also fails. 'The fifth ground is clearly untenable. If I understand the argu- nent in support of it, it would, if carried to its logical conclusion, leny to Parliament the power to provide by legislation for the per- ormance of any ministerial act by any person but the Governor- Tsaacs J. We are called upon to decide questions of law which ect the administration of an Act of Parliament touching an ough another State. In my opinion, the word immigration in sec. 1 n abroad and not intending to settle or reside in Australia, while H.C. oF A. iving it of the power to exclude such persons if they entered ah rued in its narrower sense as CON- yfycrar- a EX PARTE including the entry into Australia of any person who in so entering O'FraNacaN AND is not coming home. O'Ketry. Knox C.J. 534 HIGH COURT H.C. or A. important principle of public policy as dealt with by the Le; 193. In these circumstances 1 regard it as more than usually essenti the Court to bear in mind the attitude which every Court—an there be degrees in the matter, this Court in particular, cha it is with very special constitutional functions—must preserve, distinguished Judge, Lord Macnaghten, when dealing with a statu embodying public policy. In Vacher & Sons v. London Socie Isaacs J, Compositors (1) he said ;—* A judicial tribunal has nothing with the policy of any Act which it may be called upon to inter That may be a matter for private judgment. The duty of the ance with the settled rules of construction. unwise as it is unprofitable to cavil at the policy of an Act of P ment, or to pass a covert censure on the Legislature." enactment of Parliament itself and of executive action unquestion authorized by the enactment, if only Parliament had power to m it. In order to succeed, it is necessary for the applicants to m good two propositions: (1) that sec. 8a of the Immigration A 1901-1920 is invalid ; and (2) that, assuming such invalidity, a v of prohibition or quo warranto or certiorari or an injunction is ¢ permissible remedy to protect them against the proceedings befe the Board. The second proposition is a consideration that affects the jurisdiction of this Court. It must always be remembered th we are Judges, not legislators. In enforcing the law we must b (1) (1913) A.C., 107, at p. 118. OF AUSTRALIA. direction of the Privy Council. In R. v. Hughes (1) Lord Chelmsford the Judicial Committee said : " that the question of the power of a Court to proceed in a particular course of administering justice, was one of substance and not merely of form. And that, however con- mgs might be, that consideration alone would not confer juris- diction on the Court to sanction its introduction." We are therefore compelled to consider the second proposition first. The applicants at onceinadilemma. If the section is not invalid, the application dnittedly must be refused, because the basic contention fails. On other hand, as the Board depends for 'jon, it is plain that if the section is invalid there is in law no 8 very existence on the Board, but merely three gentlemen purporting to be a Board but vhose conclusions have no legal force. In the latter case, is it permissible to grant prohibition or quo warranto or certiorari, or do the circumstances justify an injunction ? 1. Prohibition —Taking prohibition first, which was the main edy relied on, the principles of law are deeply rooted in pre- lents and authorities ; and these have recently, to an extent largely relevant to this case, been confirmed, restated and applied by the mise of Lords in the case of Clifford and O'Sullivan (2) and by the ng's Bench Division of the Trish Free State in R. v. Maguire (3). [t is now beyond question that the writ of prohibition has its well- established limits. Only one of these limits need be referred to now. [t is contained in the celebrated answer to the third objection found in the Ardiculi Cleri in these words: '"* Prohibitions by law are to be granted at any time to restrain a Court to intermeddle with or execute anything which by law they ought not to hold plea of, and they are much mistaken that maintain the contrary." In the case of Clifford and O'Sullivan (4) the present Lord Chancellor, Viscount Cave, says: "The writ" of prohibition "should only issue to a Court wing some jurisdiction which it is attempting to exceed." He adopts (5) the passage in Short and Mellor's Crown Practice, 2nd (1) (1866) L.R. 1 P.C., 81, at p. 91. (4) (1921) 2 A.C., at pp. 582-583, (2) (1921) 2 A.C. 570. (5) (1921) 2 A.C, at p. (3) (1923) 2 LR., 58. o 1923. Ww Isaacs J. 536 HIGH COURT [l H.C. or A. ed., p, 252, as to the definition of the writ of prohibition: " 1923. a judicial writ, issuing out of a Court of superior jurisdiction n Tue Kixe directed to an inferior Court for the purpose of preventing the 2. ferior from usurping a jurisdiction with which it was not legal vested, or, in other words, to compel Courts entrusted with ju s duties to keep within the limits of their jurisdiction." 4 One of the essentials of this application then is, that it must b "a Court" which is eaceeding its jurisdiction ; for the purpose of pro- hibition is to restrain the usurpation of the King's judicial power by inferior Courts. Is the Board a Court ? Clearly not. It is an adjunct of the executive power. Parliament, while providing in certain circumstances the Minister may make an order for depot tion, has taken great care to safeguard the individual from any arbitrary exercise of that power, and secures him absolutely agai t a mere political use of it. This it does by interposing a Board— presumably non-political, and, as to the chief member, necessarily non-political— between the opinion of the Minister when it is first formed and any action by him on that opinion, and by requiring the Chairman of the Board to be a Judge or a Police, Stipendiary Special Magistrate, and, therefore, free from any influence of the Minister. The individual is thus afforded the opportunity of satis fying the independent Board that the Minister's prima facie view wrong. If the individual, by absenting himself (personally or by counsel), indicates that he has no reason to offer, the Minister hi the power to make the order. If the individual appears, he has the opportunity to place the facts before the Board. If the Board does not recommend deportation, the Minister has no power to deport. however, the Board recommends deportation, then, and then only the Minister may, if he thinks right, make the order, not as a judicial but as an executive, act. He is, however, not bound to accept any recommendation. Reasons may still appear sufficient to cause to refrain from making the order. But it is he, and he alone, who ca make any order which, on the construction of the section, imposes the obligation on an individual of departing from the Commonwealt The Board's recommendation has no legal force whatever, beyon qd being a necessary safeguard against either the undue use of minis- terial power or even a mistaken opinion of a Minister when all the 2 C.L.R.] OF AUSTRALIA, 537 are known. It is a guarantee provided by Parliament to the H. ©. or a. i = the merits before an adverse decision by the Executive is possible. Tae Kive dividual that he has a non-political and unprejudiced opinion on e opinion of the Board is not a decision; the persons who are the bject of inquiry are not charged with any offence with a view to mviction; and the Board's recommendation, whether favourable O'Fraxacan ition is therefore quite inapplicable. 2. Quo Warranto.—This remedy is stated by Blackstone (3 Comm., 262) to be in the nature of a writ of right for the King mst him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim in order to determine the right. But it is well settled that this proceeding cannot be resorted to for the purpose of challenging the validity of the office If. This is established by the case of R. v. Taylor (2). The law s stated very distinctly in Halsbury's Laws of England, vol. x., par. 270, and in High on Extraordinary Remedies, par. 670. 3. Certiorari.—Then as to certiorari, the judgment of Fletcher- Moulton L.J.in R. v. Woodhouse (3) is clear that, though this remedy is not restricted to Courts, as is prohibition, but extends to judicial in a wider sense, yet there is always this limitation that the body to which a writ of certiorari is directed must have "some right or duty to decide." As I have stated, the Board have no right or duty "decide" anything. They may or may not recommend deporta- tion, but, such a recommendation, not being a decision, certiorari 'inapplicable. 4. Injunction —By consent, the claim for an injunction in the action O'Flanagan v. Macfarlane was proceeded with, so that, whatever ible remedy exists for any assumed invalid action or threatened ction of the Board, relief might be granted. This is in accord with the very wide terms of sec. 32 of the Judiciary Act, which T regard the dominant section in this connection. But even that section, e as it is, limits the possible remedies to such "as any of the _ (1) (1908-09) 8 C.L.R., at pp. 382- (2) (1840) 11 A. & E., 949. (3) (1906) 2 K.B., 501. H.C. or A. 1923. ~~ Tue Kine v Macrar- EX PARTE O'FLANAGAN AND O'Ketty. Isaacs J. HIGH COURT parties . . . are entitled to in respect of any legal or equi claim properly brought forward." The claim here is legal, not eq able. It includes the right to personal liberty. No higher claim ear asserted short of that to life itself. I am disposed to give the scope to the section, consistent with its express terms, that I favour not only of liberty but of all rights invaded. But the | aN clear that, to obtain an injunction to restrain an act alleg infringe upon a right, it must be shown either that the ae} infringed, or that, if persevered in, it is calculated to infringe, the right; that is, that the act if pursued to completion will invasion of the right relied on. It is not pretended that liber any other right has so far been interfered with. The nature of t] and Supply Co. (1), "no one can obtain a quia timet order bj merely saying ' Zimeo'; he must aver and prove that what is going is calculated to infringe his rights." In Attorney-General v. Me chester Corporation (2) Chitty J. said: "The principle which think may be properly and safely extracted from the quia ti authorities is, that the plaintiff must show a strong case of ability that the apprehended mischief will, in fact, arise." ' I assume on the part both of the Minister and the Board utmost good faith and a conscientious desire to do their respectiy duties impartially. They have an unquestionable right to th assumption. On that basis the Board has to proceed in order consider whether it ought or ought not to make a recommendatic for deportation. In order to arrive at a conclusion on that point, has to consider (inter alia) whether in fact the persons who al summoned before it are persons such as are described in par. (2) sub-sec. 1 of sec. 84. It has to be guided, of course, by the eviden as to that. If the Board recommends against deportation, ther no suggestion of any risk to liberty ; for then the Minister is powerl But there is, in my opinion, a real danger of an adverse recomme tion unless the plaintifis submit to what, on the assumption (1) (1919) A.C., 999, at p. 1005. (2) (1893) 2 Ch., 87, at p. 92. C.L.R.] OF AUSTRALIA. 539 ity of the enactment, they are not bound to submit to, namely, 4. C. oF A. ination and cross-examination, I shall elaborate this further '9°% ittle later on. The alternative is: "Hither attend under com- Tur Kise jon, or tacitly confirm by absence whatever evidence is adduced nst you." I think, therefore, there is a technical case of ied wrong made out, once we regard the Board as unauthor- But still I do not think a case is established for interposition injunction. The Court is not entitled to apply the obstacle of =, Tf no other consideration presented itself than the ehended danger of deportation, to intervene now by injunction ould, on legal principles and on principles of constitutional right, e unjustifiable. But another consideration does present itself, mely, that there is pending a criminal prosecution against the aintifls instituted at the instance of the State of New South tions Act Repeal Act 1920. That prosecution is for alleged dition. It was mutually admitted at the Bar that substantially ation proceeding. Thus an entirely new factor is introduced nto the case. Now, although the Commonwealth, in any lawful eeeding it thinks fit by its appropriate organ to pursue, cannot obstructed by any State proceeding, it may be necessary, when 209, at (2) (1915) A.C., 750, at p. 760. ) (1859-60) 13 Moo. P.C.C. (3) (1909-10) 216 U.S., 165, 540 HIGH COURT H.C. or A. the legality of the Commonwealth proceeding is challenge eee prejudicial to an individual, to consider his actual position, though created by a State proceeding, in order to determine wh he is in fact prejudiced or not by the Commonwealth proc Tam of opinion that though, apart from the criminal proc now pending, no sufficient case is proved for the intervention of th Court by injunction, yet sufficient is proved, once the element criminal prosecution is introduced, provided the deportation ceedings are shown to be unwarranted by law. While the plai so far as any order of deportation itself is concerned, coul adequately protected if needful by habeas corpus, no remedy- even habeas corpus—could adequately compensate them for the tical compulsion either to disclose their case before the Board oO risk, as an alternative, an order for deportation which, even if aside for illegality, would represent a finding of facts or admi of facts seriously pertinent to the criminal charge. This pr compulsion in so weighty a matter is in itself, in my opinion, 4 abridgment of the common law right of accused persons. On up to the present assumed) and, therefore, not a justification for t course proposed, there would be a proper case for an injunction, Power to yrant Injunction.—It is very desirable in the cireum- invalid. There are several important features in this case; bi consider that the clear assertion of the power of a Court to individual rights of liberty from unauthorized violation, especially from such violation when attempted by illegal exec action with all the administrative force of the nation behind it, i far the most important. The concrete question raised by this phé of the matter may be very tersely stated thus: '" Has a compe Court power to prevent by prohibitory injunction unauth persons from committing an illegal act calculated to imperil i advance the liberty of an accused person, namely, the holding ' a public inquiry with a view to a public pronouncement as to 8 committing the very act with which he stands charged before C.L.R.) OF AUSTRALIA. et were consummated, no one could, in the face of the numerous uthorities criminal and civil, doubt that punishment and repression ould follow if the offenders were subject to the jurisdiction of Supreme Court of New South Wales. It would be a contempt ld it be controverted that in a pending action a party can obtain the Court seised of the cause an injunction to restrain the publication of matter calculated to prejudice the trial. Has an sed person whose liberty or life is at stake in a pending prosecu- tion no means of preventing what might well be an irreparable injury by invoking the interposition of a competent Court? _ Is it the law that the wrong must first be done, the fountain of justice poisoned, accused convicted, and then, as it is conceded, that the law gives a remedy by process of contempt or indictment or habeas corpus? A remedy for what? For an irreparable injury that ean never be undone or compensated for—the loss of liberty, of reputation, perhaps of life itself. Unless constrained by the most explicit and commanding authority I could not accept that as the Even beyond these considerations it must be remembered that a Board may not sit in New South Wales or do anything there ich would give the State Courts jurisdiction for contempt or in ny other way. What possible remedy, then, either before or after blication or before or after trial, could an accused person have, if not by action in the Federal Court or in some other Court having wisdiction over the persons offending or threatening to offend, as a wrong threatened or done? This, however, only emphasizes e appropriateness of the remedy if there be a right invaded or eatened, as I am of opinion there is on the assumption that the actment is invalid. _ There would on the facts before us be a clear invasion of the elemen- ry right of every accused person to a fair and impartial trial. such a right exists as a personal right seems to me so deeply rooted in our system of law and so elementary as to need no authority to support it. It is a right which inheres in every system of law that makes any pretension to civilization. It is only a variant f the maxim that every man is entitled to his personal liberty VOL, XXXII. 37 's Courts?" The power seems to me self-evident. If the H.C. or a. 1923. ee Tue Kine v. Macrar- LANE 3 EX PARTE of the King's Courts, and an offence against public justice. Nor O'Franacan AND O'Ketry. Isaacs J. H. ©. or A. 1923. = Tue Kine vw. Macrar- LANE ; EX PARTE O'FLANAGAN AND O'Ketry. Isaacs J. HIGH COURT Every conviction set aside, every new criminal trial ordered, mere exemplifications of this fundamental principle. And if right be admitted, it would be an empty thing, unless the adequately protected it. It seems necessary, however, to a authority. Fortunately it is clear and weighty. unjustified by law is a tort for which, when accomplished, an acti for damages, or in proper cases an injunction, is a remedy will readily conceded. What constitutes such a tort? It may be tl the precise form of attempted violation that has occurred in # present case—on the assumption made—has not previously a But that is no answer. As was observed by Pratt O.J. in a classi passage in Chapman v. Pickersgill (1), " this action is for a t torts are infinitely various, not limited or confined, for th nothing in nature but may be made an instrument of mischie A modern confirmation is found in the words of Lord He in Allen v. Flood (2) :—" 1 should be the last to suggest that th fact that there was no precedent was in all cases conclusive again the right to maintain an action. It is the function of the Cor to apply established legal principles to the changing circumstal and conditions of human life." The novel conditions of our Con stitution, leaving diverse and concurrent powers in Commonwe: and State in respect of the same facts, have led to the p situation. And so it is our duty to see how far deeply-rooted prin ciples apply to maintain the first essentials of justice. If, therefore, in principle, the plaintiffs have a legal right, a without legal warrant, that right is invaded, then it matters - that the method of invasion is novel, a legal wrong is done ( v. Rajendro Dutt (3) ). If that be so, if the plaintiff have a right, then, to borrow the words of Lord Holt in Ashby v. White "he must of necessity have a means to vindicate and maintaii and a remedy if he is injured in the exercise or enjoyment of i and indeed it is a vain thing to imagine a right without a remet for want of right and want of remedy are reciprocal." Perhaps (1) (1762) 2 Wils. K.B., 145, (3) (1859-60) 13 Moo. P.C.C., at p. 241. (2) (1898) A.C., 1, at pp. 127-128, (4) (1703) 2 Ld, Raym., 938, at p. LB.) OF AUSTRALIA. 543 apposite reference to begin with is Duncan v. Thwaites (1). H. ©. or A. at was an action for libel, but the declaration alleged (inter alia) ene at at the time of publication the plaintiff was under a pending Tus Kiwe jarge of indecent assault and not yet indicted, and that the defen- yp,er cn. int published the libel to hinder and obstruct the course of justice — nd to prevent the plaintiff having a fair and impartial trial, The O'Fuanacan el alleged consisted of the preliminary proceedings before the o'Knray. stice on the criminal charge. Modern circumstances, no doubt, pointed out in Usill v. Hales (2), materially affect the right to mblish such lawful preliminary examinations. But that is beside Isaacs J. he point now at issue. We have to assume for present purposes hat the publication is unlawful. And, as that is the assumption e by Lord Tenterden (then Abbott L.C.J.) in Duncan v. Thwaites, e Lord Chief Justice said (3): "'I take it to be a general rule at a party who sustains a special and particular injury by an act, ial and peculiar injury even in that view." That generalization will be observed, entirely independent of the question whether lication complained of is a libel or not. In Lewis v. Levy (4) was pointed out by Lord Campbell C.J., referring to Duncan v. vaites that "the actual pendency of a prosecution was a ain ingredient in that decision." The two cases were distinguished y Lord Campbell, who expressed no dissent from the general sition enunciated by Lord Tenterden or its application to the ticular case. The recent case of Neville v. London " Express" ewspaper Ltd. (5), though dealing with " maintenance," appears to involve the correctness of the general proposition of Lord erden. The learned Lords differed on two points; but all of agreed, as I understand the judgments on this, that what- was unlawful "maintenance " was an offence, and, if it caused (1) (1824) 3 B. & C,, 556, at p. 953. (4) (1858) E. B. & E., 537, at p. 562. & (1878) 3 C.P.D., 319, at p. 325. (5) (1919) A.C., 368, (8) (1824) 3B. & C., at p. 584. 544 HIGH COURT H.C. or A. damage, was actionable at common law. Lord Finlay L.. ; oH (1): "It is an action in respect of an offence which causes dan Tue Kixc_ to the plaintiff." Lord Atkinson said (2): " Every subject Macrar. legal right not to be harried in Courts of Justice by actions suel Ex pages J have mentioned." Though his Lordship thought damage y O'Franacan imported by law, the statement quoted is valuable on the poi O'Kery, hand. Lord Shaw said (3): " What in short is to be accompli is the impartial administration to poor and rich alike." His Le ship also says (4) :—' This is a civil swit. I am of opinion, Lords, that in any civil action in respect of maintenance it is n Isaacs J. sary to establish these two things—namely, (1) that the maint was unlawful in the sense above described both in statutes ani text-books ; that is to say, that it was to the hindrance or d ance of common right, to the delay or distortion or withholdii justice ; and (2) that the plaintiff in an action of maintenance have suffered actual injury by reason thereof, for which injury and to the extent of it is the maintenance answerable." Here, if 1 act threatened be tortious, there is, of course, no need of speci damage. Again Lord Shaw says (5) :—'* What was it that had b done unlawfully, what was it that was in contempt of the Q Tt was that an action of debt had been maintained with these tw essential qualities : (1) 'to the manifest retardation and disturb of justice; and (2) to the serious loss of the foresaid' plaint Lord Phillimore (6) referred to the fact that in the early days " th trial when his adversary was in some privileged position." He says: " Embracery and subornation of perjury were some of { means used" to defeat justice. He adds (7): ' Maintenan on a par with champerty, conspiracy and embracery. doctrine was established to prevent injustice." I may here obsery that the common law gave a civil action for maintenance al also for embracery (see Hawkins' Pleas of the Crown, vol. p. 467). It would seem strange that the doctrine of civil a for maintenance and embracery, which, as Lord Phillimore (1) (1919) A.C., at p. 380, (5) (1919) A.C., at pp. 416-417. (2) (1919) A.C., at p. 405. (6) (1919) A.C., at p. 427. (3) (1919) A.C. (7) (1919) A.C., at p. 433. LR.) OF AUSTRALIA. "established to prevent injustice," fails where injustice needs st of all to be prevented. Even so early as Charles I.'s time o Judges of the King's Bench thought an action on the case y against a stranger who was not one of the jury but caused to be sworn in as a juryman and gave a verdict adverse se of a witness disobeying a subpoena is much in point. By a umber of cases it has been well settled (1) that the breach of duty case arises, not out of any contract with the party causing e subpcena to be issued, but for disobeying the order of a com- tent authority (Couling v. Coxe (2): Collins v. Godefroy (3) ); }) that this gives rise to an obligation to the Court to be present h particular moment the Court is sitting, and an obligation to arty to be there when he is wanted and is called upon ad testi- dum (Lamont v. Crook (4) ) ; (3) that failure to attend is a contempt v. Hunt (5) ) for which he could be attached (Mullett v.Hunt (6) d R. v. Sloman (7) ); (4) that failure to attend was actionable jury be shown (Mullett v. Hunt and Horne v. Smith (8) ); that the plaintiff in such an action need not show that the thess was indispensable, but only material (Mullett v. Hunt). class of cases rests, as it seems to me, on an acknowledged basis the law, for the advancement and preservation of justice, zes the legal right of every litigant to have the litigation in due course of law, and recognizes, as a means to that a corresponding duty on every other person not to do anything law forbids, or to fail to do anything the law commands him to and, further, that, besides whatever public sanction exists for +h of duty, an action for damages lies where actual special ice is shown. There is one other high authority to which I ht to refer now. It is R. v. Fisher (9). Again we have to in mind the modern tendency as to privileged publications ; again I have to observe that the principle of the statement to quoted is unaffected. The defendants were indicted for libel on (1642) Mar., 80. (6) (1833) 1 Cr. & M,, at p. 764. 2) (1848) 6 C.B., 703, at p. 719. (7) (1832) 1 Dowl. P.C., 618. (3) (1831) 1 B. & Ad., 950. (8) (1815) 6 Taunt., 9. 4) (1840) 6 M. & W., 615. (9) (1811) 2 Camp., 563. 5) (1833) 1 Cr. & M., 752, at p. 758. H. C. or A. 1923. ~~ Tue Kine v. Macrar- LANE 3 EX PARTE the party complaining (Sir Edward Powell's Case (1) ). The O'Ftanacan AND O'Ketty. Isaacs J. H.C. or A. 1923. ~ Tue Kine v. Macrar- LANE ; Ex PARTE O'FLANAGAN AND O'Ketty. Isaacs J. HIGH COURT a man standing charged with assaulting a female, and Lord . borough said (1) :—'* The necessary tendency of the libel was, in language of the indictment, to traduce and defame the prosee and to prejudice him in the minds of his countrymen, and to ¢ it to be believed that he was guilty of the assault laid to his ch and to deprive him of the benefit of an impartial trial. If so, th infers that such was the intention of the defendants in publi and they must answer for the injury they have there done to the pn cutor individually, and to the community of which he is a membe The case was a criminal case, but the point is that it recognizes an dividual injury to the prosecutor for which the law exacts puni entitled to civil redress is that he has been put in danger to lo life or liberty. That is brought out in several cases. The ¢ bankruptey proceedings. It was in 1762, and was novel th Even down to the year 1883 the true principle of the tort was fully developed. In that year a very eminent Court of Apy decided the case of Quartz Hill Consolidated Gold Mining Co Eyre (3), where a petition to wind wp a company had been - sented and an action was brought for doing so maliciously and wi out probable cause. An objection was taken that no such would lie under any circumstances. As to this point, Brett I and Bowen L.J., founding themselves on the basic principles em ciated by Holt C.J. in Savile v. Roberts (4), held that such an ae would lie in certain circumstances, Lord Holt had laid down tl positions where the law would support an action for mal prosecution, namely: (1) "The damage to a man's fame, as if t matter whereof he is accused be scandalous" ; (2) " where a manis in danger to lose his life, or limb, or liberty " ; (3) " damage to an property." The Court of Appeal held that, as in the case b them damage to reputation was from the nature of the peti involved, the action would lie without proof of special dam because the law imported damage. The case is instructive. action for malicious prosecution or maliciously presenting a petiti (1) (1811) 2 Camp., at p. 572. (3) (1883) 11 Q.B.D., 674. (2) (1762) 2 Wils. K.B., 145. (4) (1698) 1 Ld. Raym., 374, 2C.L.R.) OF AUSTRALIA. if bankruptcy or to wind up are proceedings before a duly con- tituted Court. Prima facie, therefore, they are competent and ustifiable proceedings, which will meet in that Court with their st determination. But, if '' malicious and without reasonable and probable cause," the protection of the law is taken away and the m ordinary grounds. So judging by the petition in the case cited, e Court said that the necessary proceedings before the hearing it its" (the company's) "credit." Brett M.R. said (2): " The very ouchstone of this point is that the petition to wind up is by force of law made public before the company can defend itself against imputations made against it." The principle of that decision s sustained, but on account of the varying circumstances a con- decision was arrived at, by an equally eminent Court, in Wiffen . Bailey and Romford Urban Council (3). Buckley L.J. (as he hen was) held that the proceedings in that case, a complaint Inder the Health Act, involved neither (1) damage to fame, (2) anger of imprisonment nor (3) damage to property. After quot- ng Lord Holt's test, and adopting Lord Justice Bowen's words, the ned Lord Justice said (4): "So the exception of civil proceed- gs" (that is, from being actionable), " so far as they are excepted, ids, not upon any essential difference between civil and ll proceedings, but upon the fact that in civil proceedings ication attacking a man's reputation or endangering his liberty is an actionable tort without proof of special damage. It may e said of the threatened action of the Board, as appears from the (1) (1883) 11 Q.B.D., at p. 693. (3) (1915) 1 K.B., 600. (2) (1883) 11 Q.B.D., at p. 685. (4) (1915) 1 K-B., at p. 607. H.C. oF A. 1923. ww 'Tue Kine v. Macrar- LANE ; Ex PARTE ct is reduced to one which has to be judged of as tortious or not O'Franacan AND O'Ketty. Isaacs J. H.C. oF A. 1923. ~~ Tue Kine v, Macrar- LANE; Ex PaRTE O'FLANAGAN AND O'Ketty. Isancs J. HIGH COURT notification of the Minister, practically what Bowen L.J. and Br MLR. said of the publication of the petitioner in the passages abo quoted. Assuming the invalidity of the enactment, it is not co tested that if an unauthorized body of persons set up by the Admini tration were prior to the trial to summon persons accused o} crime whether murder or sedition or any other crime you please, a were to insist on investigating the facts and publishing their clusions, even though inviting the accused to offer what expla they pleased, it would be a contempt of Court if done within jurisdiction of the Court and would be sternly punished. But is the remedy confined to proceedings for contempt; and ajter the damage has been done ? The damage would be irreparal No punishment of the offender, no money compensation, w repair the damage done by prejudicially affecting the result of trial on which the liberty, and perhaps the life, of the aceu depended. Has he no personal rights to prevent this dan In my opinion he has, as I have said. I think the cases alrea cited necessarily involve it. But there is further authority. R. v. Editor of Daily Mail; Ex parte Farnsworth (1), the King's Bench Division made absolute a writ of attachment against editor of a newspaper for publishing the sentence of a Court Ma before it was duly confirmed and promulgated. The central of the case is that it was recognized that the accused had a Martial. Lord Coleridge J. said (2): "To make public that wh should be secret may be seriously to interfere with the free a of that officer." As to one portion of the publication, name defamatory statements, Lord Coleridge J. said: '' Here the publ statements which are defamatory of the accused, unconnected some instances with the crime alleged, unproved and possibly f might easily tend to prejudice his case, and would be calculated seri to thwart and interfere with the due administration of justice." Av J. quotes Bowen L.J.'s reference to "a fair and impartial trial" and Salter J. says the Act does not, in his opinion, " take away th (1) (1921) 2 K.B., 733. (2) (1921) 2 K.B., at p. 749 32 C.L.R.} OF AUSTRALIA. ght of an accused person, who fears that his fair trial may be pre- liced, of applying to this Court by way of a rule nisi." It is true the order nisi is for an attachment for possible injury eady done, but the point is that there is recognized a personal it to a remedy of the accused who " fears that his fair trial may be fair trial as is entitled to whatever protection the Court in the mstances finds necessary. Lord Hardwicke in Anon. (1) said is reason for committing for publishing an advertisement as to pending proceedings was "not only for the sake of the party injured 'ized in Scott v. Scott (2), namely, " to do justice " (Viscount Haldane L.C.). All other considerations are means to that end. They are neillary principles and rules. Some of them are so deeply embedded parties entitled to justice." Lord Atkinson (4) spoke of contempts "prejudicing the case of any litigant in any pending suit." The e learned Lord (5) contemplated the possibility of a given con- tempt as capable of being viewed in either of two aspects " the one riminal and the other simply tortious." Lord Shaw (6) referred "the elementary principle that an accused person is not bound 0 incriminate himself." His Lordship said (7) that the order of Bargrave Deane J., ordering a cause to be heard in camera, was an exercise of judicial power violating the freedom of Mrs. Scott the exercise of those elementary and constitutional rights which he possessed, and in suppression of the security which by our Con- stitution has been found to be best guaranteed by the open adminis- tration of justice." 'The elementary principle that an accused (1) (1754) 2 Ves., 520. (5) (1913) A.C., at p. 464. (2) (1913) A.C., 417, at p. 437. (6) (1913) A.C., at p. 469. (3) (1913) A.C., at p. 446. (7) (1913) A.C., at p. 484. (4) (1913) A.C., at p. 455. H.C. or A. 1923. — Tue Kine v Macrar- LANE ; Ex PARTE judiced." That seems to me to connote such a legal right to O'Franacay AND O'Ketty. Isaacs J. H.C. oF A. 1923. soees Tae Kine v Macrar- Ex PARTE O'FLANAGAN AND O'Kerty. Isaacs J HIGH COURT tunity at the cost of surrendering the elementary right just adv to. The alternative presented amounts to practical coercion strengthening any affirmative evidence before the Board ag the plaintiffs, while any statement on their part would be a foreed abandonment of their right of maintaining silence on the subject o the prosecution. If that alternative be not justified by law, it is, in my opinion, a violation of the right of liberty. I underst and by all these references to " rights," real active rights, legal rights, which find appropriate remedies in the Courts, according to stage and the circumstances in which redress is sought. In som circumstances habeas corpus may be the appropriate remedy, in others committal or attachment, in others damages ; but wherever damages are possible as compensatory, injunction is possible a preventive. The right to injunction does not and never did depent on property (Prince Albert v. Strange (3); Pollard v. Photographic Co. (4) ). There were at one time reasons why from one cause or another the English Courts had a more or less limited power granting injunctions, reasons which have now disappeared, Perryman (5). All this aggregation of power, and perhaps more, is concentrated in sec. 32 of the Judiciary Act already cited. On principle, as Lord Watson said in White v. Mellin (6), " dama and injunction are merely two different forms of remedy against the same wrong." If damage is irreparable in the sense that pecuni compensation would be inadequate protection, injunction ma (7) ), affirming Lord Kingsdown in Imperial Gas Light and Ce (1) (1915) 3 K.B., 106. (5) (1891) 2 Ch. 269, at pp. 282 (2) (1898) A.C., at pp. 17-18, et 8eqq. (3) (1849) & G., 25. (6) (1895) A.C., 154, at p. 167. (4) (1888) 40 Ch. D., 345, at p. 354. (7) (1918) A.C., 485, at p. 499. C.L.R.] OF AUSTRALIA. . v. Broadbent (1) ). Tt need hardly be said that an interlocutory i junction may be refused where finally an injunction might be ted at the hearing (Bonnard v. Perryman (2) ). That is really beside the real question here, though cases on interlocutory injunc- tions sometimes obscure a point like the present. _ The real consideration which a Court would have regard to when 'once a position like the present is established is the substantial imminence of irreparable damage, regard being had to the serious- _ ness of the consequences should that damage occur. Lord Brougham LC., in Zarl of Ripon v. Hobart (3), used language equally appro- "priate to a case like the present. He said :—'' For, in matters of this description, the law cannot make over-nice distinctions, and refuse the relief merely because there is a bare possibility that the evil may be avoided. Proceeding upon practical views of human affairs, the law will guard against risks which are so imminent that no prudent person would incur them, although they do not amount 'to absolute certainty of damage. Nay, it will go further, according to the same practical and rational view, and, balancing the mag- nitude of the evil against the chances of its occurrence, i will even provide against a somewhat less imminent probability in cases _ where the mischief, should it be done, would be vast and overwhelming." 'That there may be other remedies for other aspects of what is complained of is no reason for refusing personal remedies for the "personal wrong (see Lord Brougham in Ferguson v. Kinnoull (4) ). I have elaborated this part of my opinion because I consider that the clear assertion of the power of a Court to protect individual 'tights of liberty from unauthorized violation, particularly when asserted in the name of the law, is, even among the many important features of this case, by far the most important. The serious effect that, in my opinion, the action of the Board would most assuredly have had upon any subsequent trial of the plaintiffs would have been sufficient to have called for the restraining hand of this Court, _ if it could have been shown that the Board's action was not supported by a valid enactment of the Commonwealth Parliament. 6. Validity of Sec. 84.—The final question then is whether sec. 8a (1) (1859) 7 H.L.C., 600, at p. 612. (3) (1834) 3 MyL & K., 169, at p. 176, (2) (1891) 2 Ch., 269, (4) (1842) 9 CL. & Fin., 251, at p. 297, H.C. oF A. 1923. ww Tue Kine v. Macrar- LANE ; Ex PARTE O'FLANAGAN AND O'Ketry. Isaacs J. 552 HIGH COURT is valid or not. This is a necessary question, because there can no controversy that the section includes in its terms the plaintiff since they are persons "not born in Australia." Validity wa challenged on various grounds, which are substantially reducible te three. The relevant power in the Constitution to support the legi lation is par. xxvut. of sec. 51. By that enactment it is provided that "the Parliament shall, subject to this Constitution, have power make laws for the peace, order, and good government of the Common wealth, with respect to (xxvu.) immigration and emigration." The provisions of sec. 84 of the Act, it was said, assuming them on proper construction to apply to British subjects (not Australian born)— and the contrary was only so faintly suggested, that it does not call for further attention—were unwarranted by the Constitution, first because the power did not extend to British subjects, next because — the power did not in any case extend beyond the very act of immi- grating into or emigrating from the Commonwealth, and lastly because the power did not extend to persons who did not enter the — Commonwealth for the purpose of "settling" there either per- manently or for some period vaguely suggested but apparently of — prolonged and indefinite duration—in other words, to persons ' euphemistically termed " visitors." There is nothing in either the words of the specific power or any — immediate context, or in any other part of the Constitution, to except British subjects who are not Australians from the operation of the power construed in its primary sense, Australia is a distinct constituent unit of the Empire, and the natural law of self- — preservation requires that the primary and unqualified sense of the power shall not be cut down, The second objection suggests that the Constitution was looking, — not to the nature of the persons who might immigrate and how they if admitted might affect the community, but to the mere mode or time of their arrival. Obviously, if the " act " of immigrating were the sole subject matter of legislation, nothing happening before or — after that "act" could be dealt with by Parliament. An attempt — to enter upon false credentials, if unsuccessful, could not be legislated for, since there would be no actual " immigration." And on that hypothesis also, no legislative condition imposed, even before arrival $2 C.L.R.] OF AUSTRALIA. 'Byen if a bond were exacted, whatever remedy or right might subse- quently arise would rest on the contract created, and not on the provisions of the law which required it. If, however, it be once admitted that the law independently could impose subsequently arising obligations, then the method of creating them is entirely within the discretion of the Legislature, and its choice of means can- 'not be questioned unless contrary to some provision in the Con- stitution. The dictionary was appealed to for the meaning of the word "immigration." Like many other words in our language, it is 'more or less flexible. But what I regard as a very valuable as well as authoritative declaration as to the interpretation of statutes, is contained in a judgment of the Privy Council in the case of The Lion (1). There Lord Romilly said: "The meaning of particular words 'inan Act of Parliament, to use the words of Abbott C.J. in R. v. Hall (2), Sis to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion, on which they are used.'" That statement is extremely apposite here. The word "immigration" was not inserted in reliance on some exicographer's opinion of what that word conveyed in the various collocations in which it might be found. It was adopted on the occasion when (inter alia) governmental powers which experience had shown were not exercisable with full advantage to the whole of Australia were transferred either exclusively or supremely to the mmonwealth. It had come to be seen that the piecemeal and not holly identical treatment of the subject of "immigration," as it me to be called, by the separate Colonies was far from satisfactory r effective ; either from an Australian or an Imperial standpoint. was an urgent question awaiting early treatment by the single of a united people by the light of experience. The history of it experience is enlightening, but, it will be seen, is confirmatory ly of the meaning properly and normally attachable to the words as they stand in a national grant of legislative power. "* Immigra- tion and emigration " is the simple but unqualified subject of power, 'and no words could be wider to enable a Parliament to deal terri- torially with all that is comprised within the operations connoted (1) (1869) L.R. 2 P.C., 525, at p. 530. (2) (1882) 1 B. & C., 123, at p. 136. 553, and to operate afterwards by force of the Act, could be insisted on. H- ©. or A. 1923. ad THE Kine v. Macrar- LANE ; Ex PARTE O'FLANAGAN AND O'Kettiy. Isaacs J. H.C. or A. 1923. aS) Tue King v Macrar- LANE 5 Ex PARTE O'FLANAGAN AND O'Ketty. Isaacs J. HIGH COURT by the words. Immigration, for instance, connotes the persons w immigrate and their movements, including departures, arrival, entry, and presence after arrival. Legislation with referer to immigration means legislation to control the matter; a includes legislation, if Parliament so desires, for the encouragemer as well as the restriction of immigration. It could hardly be co scheme a method of settling the immigrants after they arrived an providing for their wants. Such a provision could not be impea on the ground that on the moment of arrival the immigrants h ceased to be immigrants, had passed beyond the ambit of the monwealth power and must look elsewhere for any means of assist ance, however willing the Commonwealth Parliament might be to continue its scheme of national development. But if the ar, of the " instant of entry," and that alone, be fallacious when applie to the encouragement of immigration, how can it be correct when applied to restriction? It is perforce conceded that there is po of absolute exclusion, as well as of absolute admission. But th suggestion is that there is no wia media. The Commonwealth has it is conceded, unlimited power over immigration, but—so runs argument—it has not power to admit immigrants conditi I put to Mr. Watt the question "* Could the Commonwealth Parl ment validly enact that a foreigner might be admitted for a limi period only?" The answer was not a direct "No"; nor was it direct "' Yes." But, unless a direct negative can be maintained, #1 plaintiff's contention is hopeless. If one condition can be imposes then the whole matter of conditional entry is open to the Parlis ment. I am at a loss to understand how any solid foundation cai exist for the contention. Where there is power to prohibit absolute there must be power to relax that prohibition without entirely s rendering it. Relaxation means condition ; the opposite contenti demands, as an alternative, absolute surrender. How is that working possibility for a self-governing people ? Look at the matter practically. Parliament, let us suppose, is willing and anxious th eligible immigrants shall be admitted, but determined that dange persons shall be excluded. Definitions can be framed, but LR.) OF AUSTRALIA. ays be immediately fitted to specific cases. Say, for instance, psane persons or tuberculous persons are prohibited. A man arrives , to all appearance and so far as examination can discover, he is neither insane nor tuberculous. Nevertheless, after admission he nay manifest symptoms which show that he had at the instant of point of manifestation. What is the Commonwealth to do ? it definitely to refuse what may bea valuable citizen, or definitely nd irrevocably to receive what may be a dangerous element into smidst ? Why, within the ample scope of the immigration power, in it not say :—" We will admit you conditionally ; if within three iths or three years you manifest insanity or tuberculosis, then we regard you as having been a lurking danger when you entered, nd you must leave. If, however, that time passes, and you appear till free from insanity or tubercle, then we definitely receive you an inhabitant of Australia" ? I cannot understand why a Legis- e, having the extensive power as formulated in R. v. Burah (1), inot, in the absence of limiting words at least, take the middle ourse as I have indicated it. It must not by any means be taken that I am suggesting that as the limit of the power. Far from it. Except in the case of a person Australian born, who having aban- this country as his home is readmitted and so restored to his original status, an "'immigrant"—that is, a person whose al home was elsewhere and who comes to this country for ny purpose—remains an "immigrant " as long as he is in Australia. s to him, while in Australia, the rule holds " Once an immigrant ys an immigrant," and the Parliamentary power is never doned and cannot be abandoned. It seems to me a needless improper restriction of language to alter the word " immigra- " normally denoting the broad social movement of persons from d and passing into this country, to the microscopic verbal sion "immigration" denoting merely the momentary and olated act of entering the country. That meaning is not, so far as ow, supported even by the most conservative lexicographer. 'he third objection is scarcely consistent with the second. It is at ''visitors,"—however criminal, immoral, or diseased, or : (1) (1878) 3 App. Cas., 889, at p. 904. H. C. or A. 1923, — Tue Kiya vw Macrar- LANE ; Ex PARTE rrival one or other of those afflictions latent in his system and on O'FianacaN AND O'Ketty. Isaaes J. H.C. or A. ee Tue Kine v Macrar- LANE ; EX PARTE O'Franacan from a serious transmissible disease, or pulmonary tuberculo AND O'Ketty. Isaacs J. HIGH COURT degraded, or of whatsoever race or colour—are entirely outside t] true notion of "immigration," and beyond the power of the ( monwealth Parliament to exclude. Let me give some si kin examples of what this means. " Prohibited immigrants," as d 1 include (among others) the following: idiots, persons suffe any loathsome or dangerous communicable disease, or any de liable to render them a charge on a public or charitable institution of the Commonwealth or of any State. The argument unad is simply that such persons if they come as " visitors "—no being suggested to the period of time or the object of their vis are free to enter the Commonwealth, bring their dangers with then and mingle with the general population, with such results as may b expected to follow. Is our Constitution so grotesque as is sented? Unless the Commonwealth Parliament is utterly dev is nihil ad rem if a statute is sustainable under any other por er It is contended that there is no power but as to "immigration" 0 possibly "aliens." But the power as to " aliens " leaves a huge gap sufficient in itself to paralyse the Commonwealth unless "in a tion" covers it. Why are " visitors" not within the immigrati power? Itis said that " immigration" connotes " settlement," or least "some continuance" in the country. "Settlement" probak means a permanent adoption as a home, But, short of that, ¥ can any line be drawn? And when is it to be drawn ? If the fir objection is good, then the intention to " settle " or " to have sot continuance" of stay must exist and must be capable of predicated at the moment of the "act" of entering—or otherwi the second objection is unfounded, But in that event, if a per arrives and genuinely has formed no intention as to his future s or departure, leaving that to be determined after inquiry so may leave in a week or remain for life, then, according to the extr ordinary suggestion, he is a " visitor," and so he cannot be excluded 2 L.R.} OF AUSTRALIA. ablished. But once admitted, he is admitted, it is said, with all \is imperfections and cannot be removed, though the next week he mines to remain a component part of the Australian people. t is a most fantastic result of the vaunted power of a great people ) control its own destiny, that it cannot even preserve its mmunity from all the evils that afflict humanity, physical, moral or stic, provided only they come to us in the embodiment of a itor." A power to legislate " with respect to" immigration, even ing that word has the limitation of meaning suggested, neces- y includes the power of preventing it by any means and to any i desired, and therefore of excluding any specified class of ms irrespective of their present intention. But, in truth, such fantastic result as would ensue from the contention referred to has , as might well be supposed, been the accepted thesis of the eople of Australia, or indeed of any part of the Empire. The history this country and its development has been, and must inevitably be, argely the story of its policy with respect to population from abroad. naturally involves the perfect control of the subject of immigra- both as to encouragement and restriction with all their inci- This control, I hold, the Commonwealth Parliament possesses mplitude. fore Federation the governmental power of controlling immigra- m had been very extensively exercised by the various Colonies for ny years. At the time the Constitution was framed it was viously one of immense importance to the present and future well- of the continent. From various aspects it was essential to ce it on a proper footing. Those aspects had taken on variations 'ances altered, and they must ever continue to do so, and, the recited power is sufficiently broad to meet, not only sible, but very probable, movements of population from other of the world towards Australia, we have but a crippled Con- ution wherewith to meet the necessities of the future. That it mple, in relation to this power, to protect the people of Australia ally, racially, industrially and socially, is, to my mind, per- clear, not only from the inherent meaning of its terms as already strued, but also when we consider how the word " immigration " VOL. XXXII. 38 s of proof is immaterial; the important thing is the fact to be 4 ©. oF A. 1923. ad THe Kine 558 HIGH COURT H.C. or A. was understood in Australia in 1900 from a Parliamentary point 1923. fi view. Immigration had been dealt with in several forms bef aed é Tue Kix Federation. sted immigration had been the legislative policy all the Colonies in one way or another for many years. At prejudicially affected the remuneration and other conditions ¢ 'labour, and was gradually, in the then existing circumsta abolished. Among the methods that had been adopted in pat Australia was the introduction of colored labour, and the subj Isaacs J. eventually excited keen opposition and did much to arouse a sen ment that is of paramount national significance, a determination preserve a White Australia. How that sentiment is possible of effectuation, consistently with the notion that colored " visitor (if not aliens) have an unchallengeable right of entry into Australia, passes my comprehension. If coolies or others (not being aliens) ¢ enter Australia without challenge as " visitors," and can afterward K at will become " inhabitants " irremovable by the Commonwe: what guarantee do all the industrial laws and arbitration award thrown on the market—to say nothing of the social consequence But, besides the encouragement of immigration, the subject, ev before Federation, took on another phase, that of restriction. Tl story may be easily gathered from Sir Timothy Coghlan's book, Labour and Industry in Australia, partly from the Parliam Votes and Proceedings, especially such as are hereinafter mentioned partly from public Acts of Parliament, and partly from the New South Wales Law Reports. I need not, as to this, go further back for g i legislation than 1888. The Chinese, for. some ten years, had im grated in considerable number to Australia, and a shipping strike hi occurred by reason of the employment of Chinese on steamel of concerted action of all the Colonies both in representation to tl Imperial Government and in local legislation. Disputes betw and representations were made to the Home Authorities by N Zealand and all the Australian Colonies except Western Aus In the joint representation in January 1881, made by the then Australian Parliamentary Colonies and New Zealand to the .L.R.] OF AUSTRALIA. 559 f State in connection with Chinese immigration, will be found much H. ©. oF 4. uable information on the subject now in hand (see New South 197 id found their way to other parts of the continent. In March 0'Fra a ship called the Afghan arrived in Melbourne with Chinese o°Krrux. ssengers for various parts—Victoria, New South Wales and New Zag, id. It is sufficient to say that a severe political crisis ensued, the Courts were called upon to determine the rights of the Chinese and. The legal proceedings can be read in the cases of Ex parte cong Kum (1). Ex parte Woo Tin (2), Ex parte Lo Pak (3) and x parte Lau You Fat (4). An Intercolonial Conference was held, ind is thus recited in the Queensland Act of 1888 :—'' Whereas at a of representatives of Australasian Governments, held at ney in the month of June one thousand eight hundred nd eighty-eight, it was amongst other things resolved that it is ble that uniform Australasian legislation should be adopted the restriction of Chinese immigration: And whereas the provisions of this Act were approved of by such representatives is the basis of such uniform legislation," &c. The Act (which in or less similar terms became common in Australia) begins the ar type of " Immigration Restriction Acts." Its essential features :—(1) Exception from its operation of (a) persons accredited y a Government ; (b) persons born in the Colony ; (c) exempted ms. (2) It affects every person described as affected irrespective his intention to remain in the Colony for any definite or indefinite me or purpose. (3) Entry into the Colony by any Chinese passenger water was forbidden, except in accordance with the Act, under niary penalty and liability to imprisonment. (4) Entry by a by land, which was of course through another Colony, without it rendered him liable to like penalties and also deportation 0 the Colony whence he came. Corresponding Acts were the follow- : New South Wales, 1888, No. 4; Victoria, 1888, No. 1005 ; h Australia, 1888, No. 439 ; and Western Australia, 53 Vict. No, ) (1888) 9 N.S. ») (1888) 9 N.S.W.L.R. (L.), 493. (4) (1888) 9 N.S V.L.R. (L.), 250. (3) (1888) 9 N.S.W.L.R. (L.), 221, W.L-R.(L.), 269. 560 HIGH COURT H.C. or A. 3 (1889). The preamble to the New South Wales Act recites t] cee " Whereas it is expedient to provide for the protection of the Colo Tue Kixe of New South Wales from the disturbances and national dan 1923. which may arise from the influx of Chinese under restrictions hither existing, and also to provide for the regulation of Chinese O'Franacas within the said Colony," &c. It is evident that immigration O'Reny. burning question in Australia in that year, and that it was d with by excluding—except so far as expressly permitting Isaacs J. intended stay. The full force of these enactments and of the events that | them, and, therefore, of the meaning the word "immigration" . to Australian minds as a subject of legislation, cannot be adequ perceived without a brief reference to the resolutions themselves some of the communications that passed between the colonial repr sentatives and the Imperial Government. The conference of 1f was held in June at Sydney, and the six Colonies were represe Its resolutions were :—1. That in the opinion of this Conference further restriction of Chinese /mmigration is essential to the we of the people of Australia. 2. That in the opinion of this Confere the necessary restrictions can best be secured through the diplom action of the Imperial Government and by wniform Australas legislation. 3. That this Conference resolves to consider a j Australasian legislation should contain the following provis (1) that it shall apply to all Chinese with specified exceptions that the restrictions should be by limitation of the number Chinese which any vessel may bring into any Australian port to 0 passenger to every 500 tons of the ship's burthen; (3) that passaye of Chinese from one colony to another without consent of tl Colony which they enter be made a misdemeanour. In the cable gram which Sir Henry Parkes as President of the Conference and which Lord Carrington sent to the Secretary on 14th June 188 announcing those resolutions, it was said :—" The first and fom resolutions were endorsed by all the Colonies except Tasma t who dissented, and Western Australia, who did not vote ; while 32 C.L.R.} OF AUSTRALIA, cond and third were carried unanimously. As a whole, therefore, faithfully represent the opinion of the Parliaments and peoples of alia' (New South Wales Votes and Proceedings 1887-1888, |. ., pp. 177-178). This is direct evidence of the Australian ning of the word " immigration" in a legislative collocation. tute No. 519, South Australia passed an Act called the Jmmigra- Limitation Act. It provided that on arrival of any ship an w person who (1) was convicted of felony elsewhere or (2) was digent as well as lunatic, idiot, deaf, dumb, blind, &c., and likely become a public charge, a bond should be required for five years to pay any expenses of maintenance ; and, by sec. 3, if during the years the passenger should be convicted of felony or mis- anour or should be publicly maintained, his cost of maintenance ld be recouped to the State or institution incurring it. Again is no limitation to persons intending to settle permanently or any continuance of time. In 1896 the question of coloured igration became somewhat acute. South Australia, by Act 672. an Act extending the Immigration Restriction Acts to coloured migrants. Assent was reserved, but never given. There were litical difficulties in the way of an Imperial or international that were fully recognized by the Colonies. In 1897 the Convention met, and resulted in entrusting this great tional power to Australia as a whole. It is demonstrably plain the Australian Colonies were, under the name of " immigration striction," endeavouring to deal with the arrival of persons from road who, if they came into Australia at all, might, from their al attributes or characteristics, in some way, according to al standards, operate against the welfare of the people of Aus- No limitation or test in point of purpose or time was thought : it was the presence here of the immigrants described that was ed undesirable—except on the terms and conditions expressed. unauthorized arrival in some cases was met by deportation from e Colony to another. It was not the "act" of crossing that was ought detrimental to the Colony: it was the class of " persons " _ Another phase or type of legislation soon appeared. In 1891, by O'Frs H. C. or A. 1923. THE NG Macrar- LANE ; Ex PARTE AND O'Ketty. Isaacs J. -AGAN H.C. or A. 1923, I Tre Kine PARTE O'FLANAGAN HIGH COURT who were objectionable. It was the simple and solid fact of ti ference of such persons from abroad into Australia—styled gration "—that was provided against. The practical meaning tl attached to the word " immigration * self-government in Australia was in consonance with what T ha > in connection with politi regarded as its primary signification in an instrument of Gove ment. Who could imagine that, when " immigration " was entrust to the Commonwealth Parliament, Chinese visitors were to be h forth free from interference ? Such a contention puts back the of Australian history a quarter of a century. But there is the strongest confirmation of the fact that Austi Parliaments were not singular in their terminology. In New Zeala in Canada, in South Africa, the same expansive connotation of word "immigration," when used legislatively, exists. It was a fat of international life and intercourse that nations for their o existence' sake were recognizing and coping with. In 1899, by No. 33, the New Zealand Parliament passed the Immigration tion Act. By sec. 3 " prohibited immigrant " was defined. was nothing in the Act to affirm or deny expressly that " vis was included in " immigrant." In 1908, by Act No. 78, the law consolidated, but not, | think, altered. Up to this time, as far as | subject had—except the United Kingdom in relation to aliens 1905—contented themselves with enacting what they considered insufficient to guard against undesirable persons gaining a foo in the community. Persons might, without any attempt at con ment, pass through and, though without the manifestations of perils sought to be excluded, they might be dangerous carriers, the evils they brought, as I have said, might very soon afte become openly visible. On the other hand, a man might sue conceal his disqualification. But how could the authorities abroad to the immigrant's own country and obtain proof ; and at w trouble and expense ? Or how could anyone, in the case of manifesting itself subsequently, prove the actual condition of immigrant on arrival? These considerations led to a 32 O.L.R.} OF AUSTRALIA. method of provisional admission exemplified by sec. 84. In 1910 H.C. oF A 1923. minion Parliament enacted provisions of a very drastic nature sec. 40 and following sections), which are directed to protect provisions were apparently adapted from the English s Act 1905, secs. 3 and 4, and applied to immigration. y regulation." The South African Act is also very interesting from s testimony on the subject of " visitors." I have quoted a section ing to the undesirability of an immigrant as an " inhabitant," m indicating permanency. But sec. 4 of the Act, under the head- "Prohibited Immigration," includes among " prohibited immi- grants' (d) any person who from information received from any Government (whether British or Foreign) through official or diplo- as been convicted in any country of" (certain offences), and " by eason of the circumstances connected with the offence, is deemed by he Minister or by an immigration officer acting pursuant to directions from the Minister, to be an undesirable inhabitant of or visitor to the von." That is to say, in the first case, the person arriving might considered by the Minister undesirable only as an inhabitant, or as a visitor; and in either case he is a " prohibited immigrant." , in the second case, the Minister or immigration officer may ink the person arriving undesirable as an inhabitant only—or even S a visitor—and in like manner he is a " prohibited immigrant." 564 HIGH COURT - Thisis a clear indication of opinion in an English-speaking comm ni that " visitors" equally with intending " inhabitants" are eq ; Within the scope of a law dealing with "immigration." § enables the Minister to issue a temporary permit to any prohibi immigrant to enter and reside in the Union or any particular #4N upon such conditions as may be lawfully imposed by regulation, can, if he chooses, deal with the circumstances of the case. It is no unimportant also, as evidencing what may be termed the gene understanding throughout the self-governing Dominions of | word "immigration," that at the sitting of the Imperial Conferen held on 13th June 1911, when British, Canadian, Australian, N Zealand and South African Ministers were present, Mr. Wh Churchill in the course of a speech on Nationalization s or affect the local law as regards immigration, that is to say, exclusion of aliens or even natural-born British subjects, which th tion Acts passed up to that date. There is no trace of any exception of isitors" ; and such an exception, if it had been suggested, would it need scarcely be said, have been strongly resented by the Dominion representatives present. (See English Parliamentary Papers. 5745, July 1911, p. 257.) Finally, in the New Zealand Act of 1920, No. 23, an amending Immigration Restriction Act, following provisions are made:—The Act is made part of Immugration Restriction Act 1908. By sec. 5, as an addition to immigration restrictions in the Principal Act, permits are requi from persons other than persons of British birth or parentage enter New Zealand. But by sec. 8 a " visitor" may obtain a temporary permit, provided he intends to leave New Zeala within six months. By Part II. of the Act the oath of allegiance may be required in certain cases, and sec, 20 provides that in cases of contravention of the oath the person shall be deemed a ' pro- hibited immigrant." 4 These enactments show very plainly the extended scope attributed to the subject of immigration, dictated of course by the enormous — public danger arising from persons arriving from abroad, and the — 2 OLR.) OF AUSTRALIA. 565 ity—a necessity becoming constantly more peremptory—of a H. ©. oF A. tion guarding itself against dangers all the more serious because immediately detectable. It is true that New Zealand, Canada tun Kia nd South Africa have Constitutions differing from our own. But e head of * Immigration," it is cogent evidence that they are O'ieennx. ded, by the representatives of the millions they are intended to ect, as properly incidental to that subject. Isaacs J. I have thought it right in the circumstances to examine these jections as if the matter were res nova, though it is not. The lusions at which I have arrived by an independent examination the subject are precisely those declared by this Court several years (Chia Gee v. Martin (1), Ah Yin v. Christie (2) and Potter v. Minahan (3) ). The injunction sought, therefore, must be refused. Hicerss J. Two Rules Nisi for Prohibition.—Each applicant seeks have a Board, constituted under sec. 84 of the Immigration Act 1901-1920, prohibited from proceeding with a summons issued by the applicants that the section is unconstitutional and invalid. But fore entering on the question of validity, we are invited by the Board to say that prohibition does not lie—that even if the section s invalid, prohibition is not an allowable remedy because the Board not a judicial tribunal. Prohibition is not an appropriate remedy ept for judicial proceedings (In re Clifford and O'Sullivan (4) ). So far as material for this case, the section 8a provides that " where Minister is satisfied that, within three years after the arrival in stralia of a person who was not born in Australia, that person - . isa person who advocates the overthrow by force or violence the established government . . . of any other civilised or who is a member of, or affiliated with, any CLR., 649. (3) (1908) 7 C.L.R., 277. C.LR., 1428. (4) (1921) 2 A.C., 570. (1) (1905) 3 —@) (1907) 4 566 HIGH COURT the person to appear before a Board . . . to show cause why should not be deported from the Commonwealth." The Board is consist of three members to be appointed—selected—by the Minist himself, and the chairman must be or have been a Judge or Stipendi ' &e., Magistrate. Then if the person fail to show cause why he shoul not be deported, or if the Board recommend that he be deport the Minister may make an order for his deportation, and he shall | Higgins 3 deported accordingly, and " pending deportation the person may be kept in such custody as the Minister directs." The question then is: Is this Board a judicial tribunal? We mu face the fact that if it is not, a person may be found guilty of the offences mentioned in the section, may be put in custody and deported from the Commonwealth, without having been tried fo the offence, without any judicial proceedings of any kind. It "out of respect to" Parliament, as Chancellor Kent put it (Ma on Statutes, 6th ed., 383); but if the words used by Parliament quite clear, to the effect that the men are to be if custody a Parliament. There is immeasurable danger if the section be con sidered in its relation to the particular men accused in this case only decision, in the long years to come. In the very recent case of v. Home Secretary ; Ex parte O' Brien (1), Scrutton L.J. said, spe of the anxious care of the British Courts with regard to liberty of the subject :—* This care is not to be exercised less vigilantly becar the subject whose liberty is in question may not be particularly believe in freedom of speech if you are willing to allow it to men whose opinions seem to you wrong and even dangerous." # (1) (1923) 39 T.LR., 487, at p. 491. 32 C.L.R.] OF AUSTRALIA, Unless this Board is a judicial tribunal, these men have not even e semblance of a trial. In the first place, the Minister has to be tisfied " ; but he need not hear the accused. There is nothing in Jaw to prevent him from satisfying himself in any way that he may choose—by anonymous letters, newspapers, informers, political ought not to be deported lies on the accused. I presume that if the sed could show that he is too ill to be moyed, or too ill for pro- ganda, such a fact might be treated as reasonable cause against deportation. According to Maawell (Interpretation of Statutes, 6th ed., p. 501), 'statutes which encroach on the rights of the subject, whether as ards person or property," "it is a recognized rule that they should be interpreted, if possible, so as to respect such rights." At p. 356 the learned author says : henever the language of the Legislature admits of two construc- are subject to a strict construction : . and if construed in one way would lead to obvious injustice, e Courts act upon the view that such a result could not have been anished, forced to abjure the realm against one's consent) " or in ny way destroyed ; nor will we condemn him, nor will we commit to prison except by the legal judgment of his peers or by the law of the land." The delicacy of the position with which we have to deal can be better appreciated, perhaps, when one reflects that if such a statute as this were on the British Statute Book in the middle 8 of last century, Kossuth might be deported from England, Mazzini and Garibaldi. Moreover, it appears from the affidavits hat the Minister made his order at a time (7th May 1923) when these were actually under a charge of " seditious enterprise "—a charge which involved substantially the facts of which the Minister was " satisfied" (see Crimes Act 1914-1915, sec. 24c). O' Flanagan H.C. of A. 1923. ad THe Kine O'FLanacan AND O'Ketry. Higgins J. 568 HIGH COURT had been arrested on this charge on 30th April, and was ren at the instance of the police, to 15th May. On that day the sol for the informant applied for a further remand * on the ground the proceedings under the Jmmigration Act" (these pro F under sec. 8A) "were shortly to be heard." The solicitor for S accused objected, insisting on the prisoner's right to trial at th earliest possible moment; but the remand was granted. The Higgney, Justice, in his judgment, has indicated the peculiar position in whi the Minister's action taken under sec. 8a, during the pendency of tl prosecution for seditious enterprise, has placed the accused ; u as the prosecution was instituted and conducted by State authorit who are not before us, and as the questions of law in this case ¢ be affected by the position, I think it best to abstain from com: There are many cases that could be cited as showing the lengths which Courts have gone in their endeavours to construe Acts in suc way as will make them consistent with the first principles of justi and as will leave fundamental, time-honoured, practices stan but I shall refer to one case only, In Cox v. Hakes (1) the Judica Act 1873 had provided that the Court of Appeal might entertain appeal "from any judgment or order" of the Queen's Bench. There had existed, however, for centuries a principle that if Queen's Bench had once discharged a prisoner from custody under a habeas corpus there could be no appeal; and it was held in th House of Lords that the unqualified words of the Judicature must be read with a qualified meaning, must be treated as confined to appealable cases, There is the highest authority, therefore, fo approaching this case with the prepossession that our Parlia intended that the Board should be a judicial tribunal. As Marshall C.J, said in United States v. Fisher (2), "' where rights are infri where fundamental principles are overthrown, where the gent system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a Court of just to suppose a design to effect such objects"; and see We Counties Railway Co. v. Windsor and Annapolis Railway Co. (3); (1) (1890) 15 App. Cas., 506, (2) (1804) 2 Cranch, 358, at p. 390. (3) (1882) 7 App. Cas., 178, at p. 188. »C.L.R. | OF AUSTRALIA. It is not for those who exercise the judicial power of the Common- lth to condemn what is done by those who exercise the legislative That is not our business. But it is my right. and my duty, sumption itself is based on respect for Parliament, and to ignore uld be disrespectful to Parliament. have therefore anxiously sought to find in these provisions of ec. 8, or in the rest of the Act, something which would justify me upon individuals " (R. v. Local Government Board (3) ): and this was adopted by Palles C.B. (In re Local Government Board ; Ex e Kingstown Commissioners (4) ). The mere facts that there is an upon which evidence can be taken to which witnesses can summoned, and that the decision involves certain discretion, are jot enough (per Palles C.B.) ; nor the facts that there is a meeting. ummons or notice, a complaint depending, a right to be heard ; nor fact that the Board says " We wish to hear you before we do t which will be to your prejudice " (Ex parte Death (5) ). There st be some exercise of the prerogative of the King to establish or e rights judicially. Here, the Board merely recommends or sto recommend ; and if it recommends deportation the Minister ty refuse to act on the recommendation. Proceedings which can d in a mere recommendation are not judicial proceedings (see " e Coal Co. v. Firemen's Union (6): and, as to Royal Com- sions, Clough v. Leahy (7) ). This is a mere inquiry with a view suutive action, as the case before Palles C.B. was with a view to tive action. In principle, lam unable to distinguish an inquiry by this Board from an inquiry made by police under Govern- orders. Under such rulings, I am compelled to say that this (1) (1903) A.C., 355, at p (5) (1852) 18 Q.B., 647, at p. 660. (1918) A.C., 591, at p. (6) (1908) 6 C.L.R., 466, (1882) 10 Q.B.D., 309, at p. 321, (7) (1904) 2 C.L.R., 139. (1885) 16 L.R. Tr., 150. missioner of Public Works (Cape Colony) v. Logan (1): Union H. ©. or A act on this presumption, and to state it where expedient. The O'F: Higgins J. 570 HIGH COURT H.C. or A. Board is not a judicial tribunal to try these men in any sense for #l 1928. offence: and in my opinion, therefore, the rules nisi for prohil must be discharged. The alternative remedies suggested by the rules are obvious inappropriate (quo warranto, relief in the nature of quo wa certiorari). As to Injunction.—But at the conclusion of the arguments as the rules nisi, counsel for the two accused moved in an action, No Higgins J. restraining the members of the Board from proceeding further | the inquiry under sec. 84. The question is, assuming the section be invalid, should an injunction be granted on this motion. The only relief sought in this action is (1) a declaration that th members of the Board have no authority to proceed further Board, and (2) an injunction restraining them from doing so. is no claim for damages. In the first place I see no cause of action, legal or equitable, against the Board. There is no actionable wrong done to the plaintiffs by Board. It is admitted that there would be no ground for injune tic Court were pending; but it is said that the plaintiffs are put dilemma, inasmuch as this inquiry compels them either to disclos their case before the Board, or to risk a de facto order for deportatior which would injure them on the criminal prosecution. But to b put in such a dilemma is not to have a cause of action (see per Bo L.J., Mogul Steamship Co. v. McGregor, Gow & Co. (1)). In Nort London Railway Co. v. Great Northern Railway Co, (2) the defen ant, as in pursuance of an agreement to refer differences with plaintiff to arbitration, appointed an arbitrator, and gave noti to the plaintiff to do likewise. The plaintiff was in a dilemma. _ contention was that the agreement for arbitration did not apply to the matter ; but if the plaintiff should fail to appoint, the award mi be made by the defendant's arbitrator alone. The plaintiff appli by motion for an injunction restraining the defendant from proce ing with the arbitration as it would be futile and vexatious ; but th Court of Appeal discharged the injunction granted by a Divisi (1) 1889) 23 Q.B.D., 598, at p. 613. (2) (1883) 11 Q.B.D., 30. R.) OF AUSTRALIA. 571 , saying that there was no wrong, legal or equitable, done by the H.C. or A. "Of course," said Cotton, L.J. (1), "it is very incon- 1874 nient to any one to be brought before a tribunal which has no juris- ion, but does that give a right to the High Court to interfere ?" t is what is called a case of damnum absque injuria—loss without n actionable wrong done by the defendant to the plaintiff. To da valid action, there must be injury as well as damage (Day v. Brownrigg (2) ). A's property may be lessened in value by B's Higgins J. brought against him, or by an application to adjudicate him bank- ; but he has no cause of action unless the action has been brought, or the application made, maliciously and without reasonable and probable cause. No action lies against a person for bringing an ion or proceeding unless there be malice and no reasonable or ybable cause. It is not here alleged or pretended that the mem- ff the Board are acting on such a motive; they are merely out the words of sec. 8a on the natural assumption that the ion is valid. The argument of dilemma is rather a reflection on Sydney bench of magistrates in postponing the trial until the inquiry should be over—a reflection which I have sought to avoid. 9 protect rights of liberty from unauthorized violation. No doubt ; but the Board is not violating any such rights. It is merely an inquiry, leaving it to the law to say whether the recom- ndation will be effective or not. Of course, the existence of a of action against the defendants must be tested on the facts as stood on 22nd May last, the date of the action ; we must ignore thing that has since happened. t, even if there were a cause of action against the members of he Board, there is certainly nothing here to justify an interlocutory injunction, There is no such irreparable injury or urgency as ustifies a Court in interfering by interlocutory order before the action s been tried. If, as has to be assumed for the present purpose, ec, 8a is invalid, the plaintiffs' rights to liberty are not being violated (1) (1883) 11 Q.B.D., at p. 38. (2) (1878) 10 Ch. D., 294. Ex Part O'FLANAGAD AND OK cLY. Higgins J. HIGH COURT (1 recommendation against deportation, no harm is done—the Mit nis cannot deport. If the inquiry end in a recommendation to de and if the Minister choose to make an order for deportation, pending deportation, keep these men in custody, there is ample ¢ speedy remedy by writ of habeas corpus. There is a further rem by an action for false imprisonment. What is done cannot undone—the Minister already on 7th May made his orders recit that he is satisfied that the plaintiffs were guilty of the off not be deported. The plaintiffs have only to wait until the Min make an order for deportation ; meantime, a futile Board is (on th assumption) making a futile inquiry. Nor is it the practice of th Court to grant an interlocutory injunction when the damage don pending the trial of the action would be nominal ; such an injunetio is a substitute for damages between the writ and the trial (Read \ Wotton (1) ), and it is significant that in this proceeding no damag at all are claimed. The object of an interlocutory injunction is to keep matters in statu quo till the trial of the action, when what defendant is doing will defeat the very object of the action ; there can be no such defeating here. It is a mistake to treat an interlocutory injunction as a matter of course, even where # plaintiff seems to have merits. In England, under sec. 25 (8) of the Judicature Act 1873, the Court can grant an interlocutory inj tion "in all cases in which it shall appear to the Court to be or convenient"; but, notwithstanding the amplitude of this d cretion, the Courts will discharge an order for an injunc' made on insufficient grounds (cf. Bonnard v. Perryman (2) ). For these reasons, I concurred in the refusal of the application made; but I hope that I shall not be understood as implying there is a power to grant even at the hearing an injunction in s a case as this. Unless the power is conferred by sec. 31, 32 or § of our Judiciary Act, wnder the general words of those sections, should say that there is no such power; but, as the effect of sections has not been fully considered in argument, I withhold fina] opinion on this point. a (1) (1893) 2 Ch., 171. (2) (1891) 2 Ch., at pp. 284-285. C.L.R.] OF AUSTRALIA. 573 'The old doctrine was that injunctions must be based on property— H. ©. or A 1923. ~ ome infringement of rights of property (Macaulay v. Shackell (1) ; y. Easterbrook (2) ). In modern practice, however, the power ction to set aside an agreement (Prince Albert v. Strange (3): O'Keuy. Pollard v. Photographic Co. (4); Kitts v. Moore (5) ). Certain Judges have said that an injunction may be issued for a merely personal Higgins J. ment " (the Common ae Procedure Act 1854 and the Judicature Act 1873, sec. 25 (8) ), "I have unlimited power to grant an injunction in any case where it would be right or just to do so." The Master e Rolls reasons that if, under the English Judicature Act, sub- 8 of sec. 25, an injunction can be granted on interlocutory ipplication if "it shall appear to the Court to be just or convenient," it can be done at the trial of the action on the principle of omne majus continet in se minus—the greater includes the less. But, atever be the force of this reasoning, the Court of Appeal in land, in a later case, held that sec. 25 (8) of the Judicature Act does not enlarge jurisdiction, it only affects procedure (North e United States it is well settled that the mere fact that an Act is titutional does not entitle a party to relief by injunction (7) (1878) 9 Ch. D., at (8) (1883) 11 Q.B.D., 3 (9) (1899-1900) 176 (10) (1909) 213 U. (11) (1910) 1 Ch., 574 HIGH COURT H.C. or A. ordinary circumstances, it would not be fitting that I should 1923. pounce as to the validity or invalidity of the section. The pi ae of the Court is to assume that Acts of Parliament are valid find that justice cannot be done in a case before us without decid that the Act in question is valid or invalid. But as I underst that my learned colleagues take the contrary view as to the ri AND é O'Kerny, toan injunction, it is my duty to say, out of respect for ther the public interest, that I am by no means satisfied as to the valid of the section under the power to make laws " with respect to. immigration." The section would be more fitly called "a law fort exportation of undesirable persons" ; although it is applied to sv persons only as have not have been born in Australia, and as ha offended in Australia within three years after arrival. If the lin of three years is valid, a limit of seventy years would be valid; Higgins J. in Italy, and had not ceased to be a member of that society, affiliated to it (whatever " affiliated " means), and has forall thelo years lived in Australia as a reputable citizen, is liable to be deport by the Minister without trial, with the sanction as to depoi ati of a Board selected and appointed by the Minister himself. power to make laws is not to make laws with respect to persons have been immigrants, or even with respect to "immigrants"; it power to make laws with respect to 'immigration "—the immigrating (it has that meaning in the dictionaries)—pows regulate that act of immigration, perhaps preventing some pe encouraging or assisting others, imposing any conditions on 1 act of immigrating. I take the same view as I expressed fu lly Huddart, Parker & Co. Proprietary v. Moorehead (1), that the pov to make laws " with respect to . . . immigration" is a poy to legislate on the subject of immigration, that we have to find wh is the primary matter dealt with, " the true nature and char: the legislation in the particular instance under discussion " (R v. The Queen (2) ); and that the various subjects of legislation ari mere pegs on which the Federal Parliament may hang legislatio1 any other subject that it likes. What is the true nature and chara (1) (1908-09) 8 C.LLR., at p. 408, (2) (1882) 7 App. Cas., 829, at pp. 839-840. OF AUSTRALIA, 575 legislation 2 How does it differ in essence from legislation H. ©. oF A. 1923. deportation of undesirable persons, though limited to persons born in Australia who have not been three (hereafter it may be Tue Kina years here? This section does not bear on the act of immi- yy, Reape NE; at all; the immigrating is over and past. It is to be noticed section 8a of the Act does not use the words " immigration " grant," or any of their congeners. That fact, of course, ot conclusive of the matter, but it strongly tends to the same yiggins 3. ion, that the Federal Parliament was not really dealing with ation at all, but with something else. It is suggested that men were admitted on probation. Probably the Federal ent could, in pursuance of this power, provide some system obation for immigrants ; but the simple answer here is that the contains no provision for such a system, These men—subjects King, not aliens—entered Australia in pursuance of passports ; re was no condition put upon their entry ; and they are to be driven not because of anything relating to their entry ; but because, ig (as alleged) advocates of revolution in Ireland, they were not in Australia. Moreover, it is very difficult to see how these n can be called immigrants, or their visit to Australia "' immigra- to Australia. All the dictionaries, I think, concur in treating yords as connoting entry into a country for the purpose of settling ; and these men certainly had no such purpose. The power to make laws with respect to entering or being in Australia Tt has been held by the Judge of a District Court in the States that the immigration laws of the United States apply o such aliens as enter the States with the intention that they become residents thereof—that the laws do not apply to (e.g.) coming with their ship (United States v. Burke (1)). This d, not because of any distinctive words in the Act, but because meaning of the word " immigration." As for the so-called iigration Acts," enacted by the Colonial Legislatures before ration, it would surely be fallacious to attach much importance that these Acts contain sections which include provisions mprehended under the word "immigration" in its strict The Colonies had then full power to legislate on all subjects ; (1) (1899) 99 Fed. Rep., 895. 576 HIGH COURT H.C. or A. and if the Legislatures chose to call the Acts which contained 1923. provisions "' Immigration Acts," for a short title, that is n¢ tion that the word had changed its meaning, or that in At _ usage "immigration" has any other than its ordinary mean :_, the English language. If indeed, without evidence on the " we are to say what immigration means in ordinary Australi: lance, I should have no doubt that the " man in the street" not treat a mere visitor to Australia as an immigrant. So in { Africa and in New Zealand, the Parliaments are not restricted, Australian Parliament is, to specific powers; and in Canada Dominion Parliament has all the powers not specifically gran the Provincial Legislatures. It is worthy of notice, also, the Canadian Immigration Act of 1910, " immigrant" is d as meaning a person who enters Canada with the intention of aequi Canadian domicile (sec. 2 (g) ); and Canadian domicile is acqu the purposes of the Act by a person having his domicile for at three years in Canada after being landed there (sec. 2 (d) ). case of Chia Gee v. Martin (1), on which reliance has been by the defendants, was merely a case on the interpretation Immigration Act itself—not of our Constitution. The Court did 1 deal with the question whether in this respect the Act was the powers of the Commonwealth Parliament ; though it ce held that on the true construction of the Act, as distinguished fre the Constitution, the word " immigrant " included those who ent the Commonwealth in fact—whether with the intention of se Higgins J. certain person is intending to settle in Australia does not aff question of construction of the Constitution. Parliament power, if it think fit, to follow the Canadian Act by putting up for the Commonwealth v. Ah Sheung (2) and Potter vy. Mina show, of course, that British subjects may be prohibited immi; but Minahan's Case recognizes that all the King's subjects, bound by the one tie of allegiance to the one sovereign, are fi (1) (1905) 3 C.L.R., 649. (2) (1906) 4 OLR, 949. (3) (1908) 7 C.L.R., 27. : OF AUSTRALIA. 5T7 am: Gv or ae 1923. -e at will throughout the Empire unless some law forbid th subject has this right by virtue of his natural liberty—and Libertas ralis est facultas ejus quod cuique facere Tibet nisi quod jure prohibetur con). The position is different with regard to aliens, who have acran- nforeeable right to enter British territory (Musgrave v. Chun re, mg Toy (1) ); and I have no doubt that under pl. x1x. of sec. 5] O'Franacan ur Constitution the Parliament could pass a law for the expulsion Oven. | deportation of aliens (Attorney-General for Canada v. Cain and yiggins 3. a(2)). But these plaintiffs are subjects of the King. In my opinion, the motion for an injunction was rightly dismissed, on the ground that sec, 8a is valid, but on the ground that the were not entitled to an injunction under the circum- cu J. In the circumstances, were it not for a position which taken late in the argument and which I will deal with further it would not be right for the Court to determine the validity or lidity of sec. 8a of the Immigration Act 1901-1920. Apart from t position, there exist objections at the threshold which decide It of the application before we reach the constitutional tion, A writ of prohibition is a process which can only be issued restrain within the limits of its legal jurisdiction some inferior It follows that, unless the Board constituted under sec. 8a e eye of the law a Court, prohibition does not lie to it. Its ower, which is conferred in terms really too plain for argument, o hear what the person called before it has to say and then, not ecide anything, but merely to " yecommend " or not to * recom- 1d" deportation to the Minister. That is not a decision, and the process is utterly unlike the well-known judicial functions of The Board is in the nature of an advisory body, and its n is merely ancillary to the executive power. Prohibition is, refore, out of the question. 'there is no decision, certiorari is inapplicable. With respect to anto, the application in this case is directed in effect rather the office than the officer under the guise of questioning the of the officers to hold the office. It questions the existence (2) (1906) A.C., at p. 546. 578 HIGH COURT - of the office. That is not the function of quo warranto, ' application so far fails. Before going to the last position I wish to add a few words in _ of the course the argument took. A good deal was said abou _ liberty of the subject, very little about the safety of the Comn wealth ; stress was laid on the harshness of holding in pending deportation a person coming from abroad who, a opportunity for explanation, has been considered both by an ir tial Board and a responsible Minister to be so dangerous as a cit that his deportation is necessary. The policy and expedi such provisions are not for the Court to consider, but I wou that the detention for the purpose mentioned has been by an English Court (R. v. Campbell (1) ) as being, not impri in the strict sense, but as mere detention in custody for the pury of seeing that deportation is not evaded. 4 The last position arose on the application for injunction, w by consent was put forward to restrain the Board from proc on the ground of the alleged illegality of sec. 8a. It appeared tl New South Wales with sedition, and criminal proceedings : pending. On the ground that, if the Board's proceedings justified by some law (and if sec. 8a is bad it is not a law), would, I think, be a good case made out for injunction, be: the prejudicial effect on the criminal charge. J am bound, therefore, to consider whether sec. 8a is aut or not by the Constitution, That depends on the proper scop' are not coercive. Everything depends upon the particular d ment in which a word is found; for, as Lord Blackburn said in. Wear Commissioners v. Adamson (2), " the meaning of words vé and also with regard to the subject of injunction. (1) (1921) 2 K.B., 473. (2) (1877) 2 App. Cas., 743, at p. 7 R.J OF AUSTRALIA, On all the points raised I agree that the applications should be sed. Starke J. On 7th May 1923 the Minister of State administering Immigration Act 1901-1920 issued a summons to the applicants ly and O'Flanagan to appear before a Board consisting of the pondents Macfarlane, Manning and Stinson, which he had on the same day appointed pursuant to sec. 8a of the Act, to show eause why the applicants should not be deported from the Common- wealth, On 22nd May 1923 the applicants obtained orders nisi from this Court calling on the members of the Board and the Minister to show cause why a writ of prohibition should not issue, directed to the members of the Board and the Minister, prohibiting them from further proceeding in respect of the said summons, and from further weeding in any respect before the Board, and in the alternative to show cause why leave should not be granted to either exhibit an information of quo warranto or obtain relief of a like nature to quo warranto, or why, in the alternative, a writ of certiorari should ot issue. The applicants also, on 22nd May 1923, issued a writ of summons out of this Court against the members of the Board, claim- a declaration that the Board had no authority to proceed further, Board, in the proceedings in which the applicants were being called upon to show cause why they should not be deported, and also an injunction restraining the defendants from proceeding further in or about the said matters. Towards the close of the arguments on the orders nisi the Court, with the consent of the members of the ard, allowed the applicants—the plaintiffs in the action—to move an interim injunction'in the action in the terms claimed by the of summons. I may postpone, for the moment, the consideration of all questions lating to the procedure adopted by the applicants for the purpose of testing the power of the Commonwealth under the Immigration Act, and come at once to the question of substance, namely, whether the power conferred upon}the Parliament of the Commonwealth to e laws for the peace, order and good government of the Common- Ith with respect to immigration and emigration (Constitution, H. C. or A. 1923. Starke J. H.C. or A. 1923. —— Tue Kine Macrar- LANE; Ex part O'F Lan. a E ZAN Starke J. HIGH COURT see. 51, pl. xxv.) warrants the enactment of sec. 84 of the Zmm tion Act. Immigration and emigration in the Constitution the movement of human beings into and out of the Commony And a law with respect to these subjects may not only encou ra that movement but also restrict it. The power to deal with movement is not founded upon the intent of the person entering int or departing from the Commonwealth, but upon the fact of ent or of departure (Chia Gee v. Martin (1)). But the Constitutic unites into a Federal Commonwealth the people of Australia. entering is already one of the people of Australia could hardly described as an immigration into the Commonwealth: it would truth be the return of an Australian to his homeland, And so tl Court has decided (Potter v. Minahan (2); and see also Ah Sheung Lindberg (3)). Whether any given person is one of the people of Australia is necessarily a question of fact. I agree, however, with the observation of my brother Zsaacs in Potter's Case (4), and am opinion that neither locality of birth nor nationality nor domicile is a decisive test, but simply an evidentiary fact, of more or less weigh according to the circumstances of the particular case. But wi this limitation—which is implied in the Constitution and cont the authority of Parliament—the legislative power with respect to immigration extends to every person entering the Commonwealth, whether a British subject or an alien. The history of the immigra- tion laws of the Empire tends to confirm this conclusion (Keith Responsible Government in the Dominions, Vol. I1., Part V.,Ch. 4, pp. _ 1075-1100), but it would be unsafe to lay much stress upon it, fe those laws were largely made by legislative bodies having plena power within their territorial limits, and not by bodies restricted specified powers, as in the case of the Parliament of the Common- wealth. . 4 This great constitutional power with respect to immigration wa conferred upon the Commonwealth for the peace, order and d government of Australia, for the maintenance of its social a (1) (1905) 3 C.L.R., 649. (3) (1906) V.L.R., 323 ; 27 A.L.T., 189, (2) (1908) 7 C.L.R., 277. (4) (1908) 7 C.L.R., at p. 308. OF AUSTRALIA. naterial interests and for its protection. "It is not made a statu- H.C. oF A. y condition that the exercise of such power shall be, in the opinion Court of law, discreet. In so far" as the Parliament possesses islative power, the discretion committed " to it "is unfettered. he proper function of a Court of law to determine what are limits of the jurisdiction committed " to the Parliament; " but, hen that point of law has been settled, Courts of law have no right atever to inquire whether" the "jurisdiction has been exercised ly or not" (Union Colliery Co. of British Columbia v. Bryden A rhetorical appeal was made during the argument to the ter of John and to the principles of British justice and liberty ; I was myself unable to appreciate the precise bearing of these bservations upon the matter which calls for decision by this Court, namely, what is the true interpretation of the power conferred pon the Parliament with respect to immigration. Within the its prescribed by the Constitution, Parliament has an "authority plenary andasample . . . as the Imperial Parliament in the itude of its power possessed and could bestow" (Hodge v. The en (2); Attorney-General for Canada v. Cain and Gilhula (3) ; Lloyd Wallach (4)). Clearly, as it seems to me, a restrictive power is nyolved in the authority to make laws with respect to immigration. But restriction must operate upon persons ; and if it is to be effective, Parliament must have authority to refuse, to a person who does ot belong to the people of Australia, permission to enter the Com- jonwealth, or " to annex what conditions it pleases to the permis- on to enter," and further, to expel or deport from the Common- ealth at pleasure, any such person, if the Parliament considers his e in Australia " opposed to its peace, order, and good govern- or to the welfare of its » , or to its social or material interests e (see Attorney-General for Canada v. Cain and Gilhula (5) ; Colliery Co. of British Columbia v. Bryden). The learned 1 who appeared for the applicants suggested, however, that the uthority to make laws with respect to immigration involved no e than a power to regulate the act of immigrating (whatever (1) (1899) A.C, 580, at p. 585. (4) (1915) 20 C.L.R., 299. (1883) 9 App. Cas., 117, at p. 132. (5) (1906) A.C., at p. 546, (3) (1906) A.C., at p. 547. 1923. w Tue Kine v. Macrar- AND O'Ketty. Starke J. -AGAN 582 HIGH COURT i that may mean). The phrase is loose and ill-defined. The a1 ment seemed to concede that the Parliament might attach any dition it thought proper to the permission to enter the Commonwes but insisted that legislation is invalid which does not attach those ditions at the moment of entry, and to the act of entry. Once a pers N has entered Australia, and his entry was subject to no condition, tl O'Keuty. according to this view, his immigration is over, and presumably Starke J. becomes permanently incorporated in the people of Australia, argument is more remarkable for its refinement than for its' suasiveness. Once concede that the constitutional power invo the right to exclude certain persons from the Commonwealth a ment may deal, not only with the privilege of entering the Con wealth, but also with the privilege of remaining within it. Consequently, the argument for the applicants in the presen case reduces itself to an emphasis of the form rather than the ! stance of the legislation. But I cannot subscribe to the view tha a law with respect to immigration either ends when the pet immigrating has entered Australia, or, for the matter of that, be, when he sets out on his voyage to Australia. On the contrary, laws could, I should think, be supported under the power, wl have no direct concern with the act of immigrating. Thus for the purpose of encouraging immigration might make provisio for the suitable housing or settlement of immigrants in advan of the act of immigrating, or for the assistance, in various form persons who had completed the act of immigrating. The vie take of the constitutional power does not, as the case of Cunningha v. Tomey Homma (1) suggests, enable the Parliament to legisl with respect to the ordinary civil rights and duties within the affirm the power of the Parliament to regulate the right of persons to enter and remain within the Commonwealth. If these propositions be true, then the validity of sec. 8a of t Immigration Act can, in my opinion, be satisfactorily demonst The section deals with arrivals within the Commonwealth who (1) (1903) A.C., 151. 32 C.L.R.} OF AUSTRALIA. 583 not born in Australia. Prima facie, at all events, such arrivals are H.C. oF A. immigrants. It was argued, however, that the section covered as well immigrants as persons who had arrived in Australia from abroad, even before the passing of the Constitution, and had made ir homes in Australia and become part of its people. But a construction which would destroy the constitutional validity of an enactment is opposed to the well-settled rule of this Court, unless 07K the words are incapable of an interpretation within the ambit of the Starke J. power assigned to the Parliament. Now, as I have said, the enact- ment prima facie deals with immigrants, and its title is "an Act to place certain restrictions on immigration and to provide for the temoyal from the Commonwealth of prohibited immigrants." With these aids to interpretation before us, it is impossible, in my opinion, to misunderstand the Act. Itis aimed at and hits immigrants, and not members of the Australian community. The specific cases provided for in sec. 84 are clearly within the discretion of Parliament (Hodge vy. The Queen (1); Baater v. Ah Way (2)); and, as the Judicial Committee has so well observed, it would be not only unseemly, but distinctly wrong, for the Court to inquire whether that discretion has been exercised wisely or not. Consequently, the provisions of the section are within the immi- ation power conferred upon Parliament by the Constitution. It unnecessary to consider whether the section could be supported 'ither wholly or in part under other constitutional powers, e.g., those with respect to aliens. Coming now to the procedure adopted by the applicants for the purpose of testing the validity of sec. 8a of the Immigration Act. Eyen if that section were invalid, still prohibition would not be an ppropriate remedy, The Board's authority allows it simply to make arecommendation ; it has no judicial function. And it is well settled at prohibition only goes to restrain proceedings of a judicial nature, and not proceedings of an administrative or advisory nature (see In re Clifford and O'Sullivan (3) ). Again, quo warranto proceedings do not enable the legality of a statute or of a charter to ) App. Cas., 117. (2) (1909) 8 C.L.R., 626. acm (3) (1921) 2 A.C., 570. 7a 584 HIGH COURT in - be attacked, but are rather directed against the individual title of person holding or purporting to hold office under the statute charter (Short and Mellor's Crown Practice, p. 284; and see R. Taylor (1)). And certiorari, wide as is its scope, lies in respect of proceedings in their nature judicial as opposed to proceedings in their nature administrative or advisory (R. v. Manchester Justices (2); R. v. Johnson (3); R. v. Woodhouse (4), overruled in #1 House of Lords (5) but without consideration of this point), As to injunction, the basis of the jurisdiction to grant that remedy is the violation of some right: the mere fact that a law was uncon: rant the issue of an injunction, Som stitutional would not w: injury to the applicants must be shown, some violation of their rights. Now, the evidence wholly fails, in my opinion, to establish either the infringement by the Board of any right in the plaintiff, of property, personal liberty, or reputation, or any act which, if carried into effect, will necessarily result in the violation of any of those rights. What, then, is the suggested right in this case ? All we can say is that unauthorized proceedings before the Board might possibly | prejudice the applicants in connection with a charge in the nature of sedition before the State Courts, and upon the hearing of that charge, if it ever comes to trial. And this, it is said, is caleulated to infringe what is called the applicants' right to a fair trial. But interference with the administration of the King's justice is rather an offence against the King himself than a violation of any right in the subject. The King's Courts in the States are, as it seems to me, — armed with ample powers to secure fair trials and the proper adminis: tration of justice in proceedings pending in the States, and to deal with persons within their territorial limits who, without any lawful authority, interfere with or obstruct those proceedings (see Packer v. Peacock (6)). Consequently, but for the opinions of the Chief Justice and of my brothers Isaacs and Rich, I should have hesitated to conclude that an injunction was an appropriate remedy in this case, even if sec. 84 of the Immigration Act had been unconstitutional ; but, in the face of their opinions, I shall content myself with (1) (1840) 11 A. & E., 949. (4) (1906) 2 K.B., 501. (2) (1899) 1 a (5) (1907) AY (3) (1905) 2 (6) (1912) 13 CLR.] OF AUSTRALIA. 585 messing a doubt upon the subject, and avoid deciding the matter H.C. oF A. a sense contrary to the view they have formed. acd THe Kine Orders nisi discharged with costs. Motion for interlocutory injunction dismissed with costs. AND Solicitors for the prosecutors and plaintiffs, R. D. Meagher, 0'Kruux fogarth & Co. ; Collins & Mulholland. Solicitor for the respondents and defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth. B. L. (HIGH COURT OF AUSTRALIA.] OWER 5 . i : 'i - r . Parner ; AGAINST 'HE COMMONWEALTH . a é - . DeErenpanr. lic Service (Commonwealth)—Transferred officers—Officer in Public Service of H.C. or A. State—Transfer to Public Service of Commonwealth—Break in service of State 1993. between establishment of Commonwealth and time of transfer—The Constitu- = Go tion (63 & 64 Vict. c. 12), sec. 81—Commonwealth Public Service Act 1902-1918 Brispaxz, (No. 5 of 1902—No. 46 of 1918), sec. 60. _ June 14. Sec. 84 of the Constitution deals in the first three paragraphs with the rights SypNey, of officers of Departments of the Public Service of a State transferred to the Aug. 2. Commonwealth, and provides that "any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, KB0S C1 'and shall be entitled to retire from office at the time, and on the pension or °*¥*" Duly JJ- retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State." The fourth paragraph of the section enacts that "any officer who is, at the establishment of the Commonwealth, in the Public Service of a State,