The Secretary, Department of External Affairs, has forwarded, for advice, the following letter received by the Prime Minister from the Premier of Tasmania:

I have the honour to inform you that on the arrival of the R.M.S. Medina at Hobart on the 4th instant, a female stowaway, with an illegitimate child, was discovered on board. As she was destitute, and also mentally defective, the question was raised as to the statutory power that existed to prevent her landing.

Section 3 of 49 Victoria No. 4 'An Act to regulate the conveyance of passengers to Tasmania' provides that, if the Collector of Customs shall certify, inter alia, that a passenger shall have arrived in Tasmania who is likely to become a charge upon the public, the Collector shall require the owner of such ship to execute a bond to His Majesty in the sum of £100.

Since the passing of the above Act in 1885, Federation has ensued, and an Immigration Restriction Act 1901 has come into force, whereby a similar provision, paragraph (b) will be found under section 3 of this Act. This however, I take it, only applies to oversea traffic, and not to interstate.

The question now to be decided is whether the Collector of Customs, who is a Federal officer and not a State officer, can be called upon to perform the functions prescribed under the Passengers Act, copy herewith.

Our Solicitor-General has ruled that the Passengers Act is still alive, and in these circumstances I shall be glad to know whether there is any objection to the Collector of Customs operating under the Act.

It will be realised that if this woman had not agreed to return to Sydney, this State would have been saddled with her maintenance as well as that of her illegitimate child. Section 3 of the Tasmanian Passengers Act 1885 is as follows:

3. If the Collector shall certify that any passenger shall have arrived in Tasmania on board any ship being either lunatic, idiotic, deaf, dumb, blind, or infirm, or from any cause unable to support himself, or likely, in the opinion of the Collector, to become a charge upon the public or upon any public or charitable institution, the Collector shall require the owner, charterer, or master of such ship, within Seven days after her arrival, to execute a bond to Her Majesty in the sum of One hundred Pounds for every such passenger.

In an opinion on the above Act given by Mr Attorney-General Deakin on 6 April 1903⁽¹⁾, Mr Deakin advised as follows:

(2) With regard to interstate intercourse the question is more difficult. Section 92 of the Constitution declares that, upon the imposition of uniform duties, 'trade, commerce, and intercourse among the States . . . shall be absolutely free'. The exact scope of this provision, and the extent to which it interferes with what might be called the 'police powers' of the States, it is unnecessary now to examine; but in my opinion it is at the least doubtful whether, in face of section 92, any validity can be allowed, in respect of interstate intercourse, to the Tasmanian Act-which imposes a burden, in the nature of a tax, upon the admission not only of lunatics and idiots, but also of all persons who are deaf, dumb, blind, infirm, unable from any cause to support themselves, or likely to become a public charge.

The Commonwealth Government ought not to take the responsibility of executing a State Act the constitutionality of which is open to such serious doubt.

Since that opinion was given, the case of R. v. Smithers; Ex parte Benson 16 C.L.R.99 has been decided by the High Court. In that case the question of the extent of the powers of a State to exclude persons entering the State from other States was considered. The reasoning in the case, by all the Judges except Isaacs J., assumed that under the police power the States retained some power with respect to interstate intercourse, but the actual decision was against the claim made by the State in that particular case.

In my opinion, the statute now in question is too wide in its terms to stand as a whole, and may in fact be wholly invalid.

The question whether a Commonwealth Department should render assistance in the enforcement of a State Act which is of such doubtful validity, is a question of policy, which should, in my opinion, be determined by the Department concerned.

[Vol. 14, p. 111]

(1)Opinion No. 135.