Opinion Number. 419



Key Legislation



Mr A. in a letter, dated 18 May 1911 to the Attorney-General, questions the validity of the Influx of Criminals Prevention Act 1903, of the State of New South Wales, on the ground that it is inconsistent with section 117 of the Constitution. He also questions the validity of similar legislation of the other States.

The Influx of Criminals Prevention Act 1903 provides inter alia as follows:

3. If any person (other than a person who has been resident in New South Wales at or prior to the commencement of this Act), has before or after such commencement, been convicted in any other State-

  1. of an offence against the Immigration Restriction Act 1901, of the Commonwealth, by reason of his being a prohibited immigrant within the definition in section three, subsection (e) or (f) of that Act, and being found within the Commonwealth in contravention or evasion of subsection (e) or (f) of that Act; or

  2. of an offence for which in such State he was liable to suffer death, or to be imprisoned for one year or longer;

and if before the lapse of three years after the termination of any imprisonment suffered by him in respect of any such offence, such person comes into New South Wales, he shall be guilty of an offence against this Act.

A person convicted of an offence against the Act is liable to twelve months' imprisonment, and in addition to or in substitution for the imprisonment to be deported from New South Wales.

The Act also provides that the person imprisoned may be released-

  1. for the purposes of the deportation of the offender; or
  2. upon the offender entering into a recognizance in the sum of fifty pounds, with two approved sureties, each in a like sum, conditioned that he will leave New South Wales within seven days after his release, and not to return to New South Wales within three years after the date of his release; or
  3. upon the offender entering into a recognizance in the sum of two hundred pounds, with two approved sureties, each in a like sum, conditioned that he will be of good behaviour for a period of five years from the date of his release.(1)

There are other penal provisions in the Act, but they are incidental to section 3, which may be considered to be the main provision.

In law a penalty implies a prohibition, so the Act must be read as prohibiting a person (not having been a resident of New South Wales at or prior to the commencement of the Act) who has been convicted in a State other than New South Wales, of any offence mentioned in section 3 of the Act, from going into New South Wales at any time within three years after the termination of any sentence of imprisonment passed in respect of the offence.

I think that under the Constitution every free citizen of the Commonwealth has a right to go to and from any State, and to trade therein, subject of course, to compliance with the laws of the State.

This right, which even without express words might have been implied from the fact of Federal union, is expressely conferred by the provisions of sections 92 and 117, which are as follows:

92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

In my opinion the Act clearly places an embargo upon the freedom of trade, commerce and intercourse among the States, and is therefore invalid. I think also that the exception in favour of persons resident in New South Wales at or before the commencement of the Act constitutes a discrimination between subjects of the King resident in different States, and that the Act is therefore also invalid as being in violation of section 117 of the Constitution.

It may perhaps be contended that section 92 must be read as if it excepted laws made under what is called the police power of a State, for the promotion of the health, peace, morals and education of the people.

I think however that it may safely be accepted, without giving authorities, that any power of excluding persons from other States must, in view of section 92, be founded on the necessity of self-defence and self-preservation. But even assuming that some provision for the exclusion of criminals might be good on that ground, this Act goes to lengths which are clearly outside any such justification. In the first place it extends not merely to the term of the offender's imprisonment, but for a period of three years after its expiration, when he has expiated the offence and becomes a free citizen. If he could be lawfully excluded for three years, he could be excluded for life. Besides, the test of

disability under the Act is not the moral character of the 'criminal', nor even the seriousness of his offence as inferred from its nature or from the sentence actually imposed; but upon the bare fact of his conviction for an offence for which the maximum term of imprisonment is one year or more. Manslaughter, for instance, may range from murder down to the verge of homicide by misadventure, or justifiable homicide; yet a person convicted of manslaughter under circumstances which connoted no moral blame at all, and sentenced by the Court to a week's imprisonment would come within the prohibition of the Act because the offence could have been punished by imprisonment for one year or longer.

It is impossible to argue that the necessity of self-defence or self-preservation obliges New South Wales to exclude from her territory every person who in any other State has rendered himself liable to be imprisoned for a year.

I have not examined the similar Acts of the other States, but this can be done if thought necessary.

[Vol. 9, p. 19]

(1)Section 8.