On 1 February 1913⁽¹⁾ I advised the Secretary, Department of External Affairs on the question of the power of the States to exclude blind persons from going from one State to another State.

At that time the case of R. v. Smithers; Ex parte Benson⁽²⁾, which was decided by the High Court in December 1912, had not been reported.

This case has now been reported and the papers have been referred to me again for con-sideration in the light of the judgments of the members of the High Court in the above case.

I have carefully considered my previous opinion and my minute⁽³⁾ accompanying that opinion in the light of the decision in the above case, and, in my opinion, that case upholds the previous opinion given by me.

The facts of that case were as follows: John Benson was convicted on 25 January 1912, at Sydney, under the Influx of Criminals Prevention Act 1903 of the State of New South Wales, which provides that if any person (other than a person who has been resident in that State) has been convicted in any other State of (inter alia) an offence for which he in such State was liable to be imprisoned for one year or longer, and before the lapse of three years after the termination of any imprisonment for such offence, such person comes into New South Wales, he shall be guilty of an offence.

Benson applied to quash this conviction, upon the ground that the Influx of Criminals Prevention Act 1903 was ultra vires the Parliament of the State of New South Wales, inas-much as it is irt contravention of the Constitution.

The conviction was quashed accordingly, the High Court holding that any power re-served to the States under the Constitution to prevent the intrusion from outside the State of undesirable persons is at least limited to exclusion justified by the existence of some necess-ity for the exercise of defensive precautions, and that the section in question was not a valid exercise of this power and [was] ultra vires the State Parliament.

The Chief Justice and Barton J. based their judgments on the mere fact of federation, and refused to definitely consider the effect of section 92 of the Constitution, as not being necessary for consideration.

The Chief Justice in his judgment states:

The so-called 'police power' of the colonies before the establishment of the Common-wealth extended to the exclusion of any person whom the Colonial Parliament might think an undesirable immigrant. It is clear that the continuance of such a power in its full extent after the federation is inconsistent with the elementary notion of a Commonwealth . . .

In my opinion, therefore, the former power of the States to exclude any persons whom they might think undesirable inhabitants is cut down to some extent by the mere fact of federation, entirely irrespective of the provisions of sections 92 and 117 . . . The basis of the discrimination, so far as it does not depend upon positive enactment, must be the necessity of the continuance of the power, to use the words of Sir Montagu Smith, to make laws 'designed for the promotion of public order, safety, or morals'.

Isaacs and Higgins JJ. based their judgments upon the provisions of section 92 of the Constitution which provides that on the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal car-riage or ocean navigation, shall be absolutely free, but Higgins J. refused to definitely consider how far the power was cut down by the existence of the police power of the State.

It may be taken that Benson's Case has decided that since federation the power of the States to prevent the intrusion from outside the State of persons is limited to cases where there is some necessity for the exercise of defensive precautions, such as the pro-motion of public order, safety or morals.

The exclusion of blind persons, as such, from entry into a State is not necessary for the promotion of public order, safety or morals of the State, and, in my opinion, a State has no power to exclude blind persons from entry into a State merely on the ground that they are blind.

[Vol. 11, p. 269]

(1) Openion No.489.

(2) 16 C.L.R. 99.

(3) Openion No. 490.