The Secretary, Prime Minister’s Department, has forwarded the following letter from the Premier of New South Wales for advice:

In connection with the Influx of Criminals Prevention Act, 1903, I forward herewith copy of a paragraph which appeared in the Sydney press of 15th ultimo, containing remarks by the Chief Justice of this State in the Court of Criminal Appeal on the 14th idem.

I shall be glad if you will kindly look into the matter and advise me whether any action can be taken.

The paragraph referred to reads as follows:

The prevalence of Burglary and kindred crimes was indicated in at least two of the cases before the Court of Criminal Appeal yesterday, when convicted persons applied for leave to appeal against the severity of their sentences. The applications were refused. An investigation of the police records showed that one of the prisoners, named Zetto, had undergone imprisonment in Brisbane for house-breaking, and was well-known in that regard also in Melbourne.

‘It is a very great pity’, commented the Chief Justice, Sir Wm. Cullen, ‘that the laws whereby the different Australian colonies before Federation enabled protection to be given to one another against inter-colonial burglary were found faulty by the High Court of Australia, and that nothing was done afterwards to replace them by an enactment that might have given some such assistance to the police. Since the decision of the High Court, the trade of interstate burglars has been flourishing.’

In the case referred to (Rex v. Smithers: Ex parte Benson 16 C.L.R. 99) the High Court held that the Influx of Criminals Prevention Act 1903 of New South Wales was invalid. This Act made it an offence for persons convicted of certain offences in other States to enter into New South Wales within three years after the termination of any imprisonment suffered in respect thereof. Isaacs, J., and Higgins J., based their decisions on the ground that section 3 of the State Act was an interference with freedom of ‘intercourse’ between the States within the meaning of section 92 of the Constitution. Griffith, C.J., and Barton, J., discussed the ‘Police power’ of the State, and came to the conclusion that the power of the State Parliament to make laws for the exclusion of undesirable immigrants was limited to the making of laws for the promotion of public order, safety, or morals, and that the legislation could not be regarded as coming within that power. Isaacs, J., held that section 92 of the Constitution ‘is an absolute prohibition on the Commonwealth and State alike to regard State borders as in themselves possible barriers to intercourse between Australians’ (page 117). Higgins, J., took a similar view.

In the later case of W. & A. McArthur Ltd v. State of Queensland, however, (28 C.L.R. 530) the High Court specifically dealt with the question of the application of section 92 in regard to Commonwealth legislation and the majority of the Court held that that section did not affect the legislative power of the Commonwealth. The following passage appears in the judgment of Knox, C.J., Isaacs, J., and Starke, J., (with which Rich, J., also concurred) at page 556:

(c) Is the Commonwealth bound by section 92? The present case has involved a closer examination of this question than any previous occasion upon which the Court has considered it. The result has been to convince us, notwithstanding dicta in previous cases, that the true office of section 92 is to protect interstate trade against State interference, and not to affect the legislative power of the Commonwealth.

The view taken by Higgins, J., is stated at page 563 as follows:

But, finally, it is our duty to give such construction to section 92 as will reconcile it with the other parts of the Constitution; and, if we are not to treat part of section 51(i) as nugatory, we are forced to treat section 92 as not denying to the Federal Parliament the power to make laws with respect to trade and commerce … among the States. Of course, that power is ‘subject to the Constitution’; but the question is, does section 92 forbid the Federal Parliament to make such laws. We must not assume it.

In view of this case I think it may be assumed that section 92 of the Constitution does not prevent the Commonwealth Parliament passing legislation of the kind suggested, if it is expressly authorised by some other provision of the Constitution.

Section 51(i) of the Constitution empowers the Commonwealth Parliament to make laws with respect to trade and commerce among the several States.

In the Lottery case (188 U.S.R. 321 at pages 337 et seq) it was argued that ‘commerce meant the intercourse or intercommunication of a colony with the other colonies and the rest of the world; either by the importation or exportation of goods or by the ingress or egress of individuals, and was not confined to mere traffic in purchasable commodities.’

In the opinion of the Court, the decision of Marshall, C.J., in Gibbons v. Ogden
(9 Wheat 1, 189, 194) is cited with approval. In the last mentioned case the Chief Justice defined ‘commerce’ as including ‘intercourse’.

In Covington Bridge Co. v. Kentucky,⁽¹⁾ it was held that ‘the thousands of people who daily pass and repass over’ the bridge over the River Ohio at Cincinnati connecting the States of Ohio and Kentucky ‘may be as truly said to be engaged in commerce as if they were shipping cargoes of merchandise from New York to Liverpool.’

It, therefore, appears that in the United States the Courts have construed ‘trade and commerce’ as including ‘intercourse’ in the sense which covers a transit of passengers.

The words ‘trade, commerce and intercourse’, appearing in section 92 of the Constitution of the Commonwealth, have been held to include transit of passengers
(R. Smithers ex parte Benson 16 C.L.R. 99).

As the word ‘intercourse’ is not used in section 51(i) it may be argued that a narrower interpretation is to be put upon the power conferred by that section. It must be remembered, however, that section 92 was a denial of power to the States and it may well have been thought necessary, for greater caution, to make the prohibition explicit.

In my opinion there is no reason to suppose that the omission of the word ‘intercourse’ from section 51(i) involves a more limited interpretation of the expression ‘trade and commerce’ than that accorded in the cases to which I have above referred.

[Vol. 21, p. 282]

(1) 154 US 224 (1894).