the right to prohibit the entry of those who are subjects of the Crown born within our bounds and who, to adapt a phrase of Lord WATSON'S may be called Australian-born subjects of the King": 7 C.L.R, at p. 294. But, like the Chief Justice, he rested his decision on the ground that the respondent had never made China his permanent home or abandoned his Australian home.

Mr. Justice O'CONNOR adopted, as the definition of immigration the words of Mr. Justice CUSSEN in the case of Ah Sheung v. Lindberg, (1906) V.L.R., at p. 332: In its ordinary meaning immigration: implies leaving an old home in one country to settle in a new home in another country, with a more or less defined intention of staying there permanently, or for a considerable time." He thought that birth in Australia was not conclusive; that it was only prima facie evidence of the respondent's home in infancy being in Australia, and that it might be shown that the home of infancy had been abandoned and exchanged for another. But he agreed, on the facts, that the respondent in returning to Australia was coming back to a home which he had never abandoned.

Justices ISAACS and HIGGINS both thonght that respondent was an immigrant, on the ground that he had abandoned his Australian home.

Meaning Unalterable.

It was pointed out by the Chief Justice (Sir SAMUEL GRIFFITH) in the Union Label Case, 6 C.L.R., at p. 501, that whereas some of the enumerated subject matters of Federal power (e.g. telegraphic services) might with advancing civilization extend to new developments relating to the same subject-matter (e.g. wireless telegraphy), the meaning of the term "immigration" could never alter, however the methods of bringing persons within the geographical limits of the Commonwealth might be extended.

Control over State Governments.

In Attorney-General of New South Wales v. Collector, 5 C.L.R., at p. 833, Sir SAMUEL GRIFFITH mentioned the immigration power amongst others, as an example of a power of such a nature that its effective exercise manifestly involves control of some operation of a State Government, so that the doctrine of the immunity of State instrumentalities from Federal control would have no application to that operation. The power of the States to restrict inter-state migration is also limited by section 92 of the Constitution. See

notes on that section, infra; and The King v. Smithers, (1913) 16 C.L.R., 99.

Imperial Law and Treaties.

In Chia Gee v. Martin, 3 C.L.R., 649, the suggestion that the Immigration Restriction Act 1901 was invalid because not in conformity with Magna Carta was dismissed as "not one for serious refutation." The objection that the Act was invalid as being in conflict with treaties was characterized as a question which might perhaps be raised for decision some day, but was not raised now, because there was no treaty in existence which was relevant.

The power conferred by the Immigration Act 1901-1912, section 16, and the regulations made thereunder, authorizing officers to inquire and determine whether any person is a prohibited immigrant is valid. Similar inquiries are authorized for the enforcement of the Customs Act 1901-1910, the Audit Act 1901, and the Census and Statistics Act 1905. Per O'CONNOR, J., (1909) 8 C.L.R. at p. 377.

51. (XXVIII.) The influx78 of criminals:

The provisions of the Immigration Act 1901-1912 dealing with the immigration of criminal undesirables have been summarized in the note on that Act: section 51 (XXVII.), ante.

Influx.

The term "influx of criminals " implies the entry of criminals into the Commonwealth, as distinguished from the passing of criminals from one State into another.

Trade and intercourse between the States by the Constitution, section 92, is absolutely free. There is, therefore, a limit on the power both of the Commonwealth and the States to stop any person crossing the border, except, of course, fugitives from justice or from quarantine, which question was referred to and tested in the case of The King v. Smithers; Ex parte Benson, (1912) 16 C.L.R., 99. An Act passed by the Legislature of New South Wales known as the Influx of Criminals Prevention Act 1903 by section 3 provided that 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 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." An inhabitant of Victoria who had been convicted there of being a person having insufficient lawful means of support, which offence may, by the law of Victoria, be punished by imprisonment for twelve months, having within three years after the termination of the imprisonment suffered by him in respect of such offence come into New South Wales, was convicted there of an offence against the section above quoted. Held, that the lastmentioned conviction was bad; by GRIFFITH, C.J. and BARTON, J., on the ground that the power of the Parliament of a State to make laws for the exclusion of persons whom it thinks undesirable immigrants, is limited to the making of laws for the promotion of public order, safety or morals, and that the exclusion of a person convicted of such an offence as that of which the accused was convicted in Victoria was not within the power as so limited; by ISAACS, J. and HIGGINS, J., on the ground that the section of the New South Wales Act was an interference with freedom of " intercourse" between the States within the meaning of section 92 of the Constitution, and was therefore invalid. The King v. Smithers; Ex parte Benson,

(1912) 16 C.L.R., 99.

. 51. (XXIX.) External affairs79:

§ 79. "EXTERNAL AFFAIRS."

LEGISLATION.

FUGITIVE OFFENDERS (IMPERIAL) ACT 1881.

In the case of Ex parte W. N. Willis, which was heard in the Supreme Court of Western Australia on 18th July 1905, the applicant had been arrested on provisional warrant issued under section 16 of the Fugitive Offenders Imperial Act 1881. He was arrested in that State for an offence alleged to have been committed in New South Wales; he applied for discharge under a writ of habeas corpus which was made returnable before the Full Court, consisting of the Chief Justice, Mr. Justice PARKER and Mr. Justice MCMILLAN. Counsel for the applicant argued that part II. of the Fugitive Offen-. ders Act had no application between various Australian States, and

that it had ceased to apply since the Federation of Australia was established. The Court held that the point taken by counsel was fatal to the warrant. The Act was only to apply to groups of British possessions to which, by reason of their contiguity or otherwise, it might seem expedient to apply the same. The Act had been applied to various British possessions, but "British possessions," as defined by the Statute, meant any part of His Majesty's dominions exclusive of the United Kingdom, the Channel Islands, and the Isle of Man, and all territories which were under one Legislature, and Legislature meant the central Legislature. British Possession, therefore meant a territory or place which was under one central Legislature. Australia, being now under one central Legislature, was a British possession within the meaning of the Act, and the various States which prior to the Federation of Australia were separate British possessions, were now under one central Legislature, and thereby had ceased to be separate British possessions within the meaning of the Act. The accused was accordingly discharged: 7 W.A.L.R., 247.

In the case of Ex parte D. A. Small, heard before Mr. Justice REAL, in Queensland, on 14th September, 1905, a similar point. arose with regard to part I. of the Fugitive Offenders Act. The warrant in that case had been issued in South Africa, and had been endorsed by the Governor of Queensland in alleged pursuance of section 3 of part I., which provides for the endorsement of a warrant by the Governor of a British possession. His Honor was of opinion that the various Acts which were supposed to be performed by the Governor of the possession under the Fugitive Offenders Act had. since the Commonwealth came into existence, to be performed by the Governor-General of the Commonwealth and not by the Governor of the State. This prisoner was held by a warrant endorsed by the Governor of the State and not by the Governor-General of the Commonwealth, and was no longer in legal custody, the time having elapsed during which he could be held on remand. The prisoner was discharged: 3 Commonwealth Law Review, Part I.. at pp. 14, 17.

In re Mc Kelvey, (1906) V.L.R., 304, the question was raised as to whether the judges or justices of a State could still exercise jurisdiction under the Fugitive Offenders (Imperial) Act 1881. It was held by the Full Court of Victoria that the State of Victoria had not ceased to be "British possession" within the meaning of

the Fugitive Offenders (Imperial) Act 1881, since the passing of the Commonwealth of Australia Constitution Act and the proclamation of the Commonwealth. Therefore, the jurisdiction conferred upon the judges or justices of the peace mentioned in section 30 (4) of the Fugitive Offenders (Imperial) Act 1881 could still be exercised in Victoria by a Judge of the Supreme Court of Victoria, or a justice of the peace for every bailiwick of Victoria having the like jurisdiction as one of the magistrates of the Metropolitan Police Court in Bow Street, London.

The case of Mc Kelvey v. Meagher subsequently came before the High Court on appeal, when the decision of the Full Court of Victoria was affirmed: (1906) 4 C.L.R., 265.

The Chief Justice (Sir SAMUEL GRIFFITH), referring to section 32 of the Fugitive Offenders Act, said:

"I think a central legislature,' as distinguished from a 'local legislature,' means a central legislature which has power to deal with the subject-matter of the Act-such matters as are involved in the administration of the Act, including the administration of justice within the possession. So that, if a new form of Constitution is granted under which a new legislature, central in one sense, it is true-is established, but with authority not extending to the criminal law or the extradition or rendition of fugitive offenders, then such legislature is not a central legislature within the meaning of the Act.

"Either the Parliament of the Commonwealth has no power to deal with the matter, and therefore cannot be a central legislature' within the meaning of the Act; or, if the Parliament of the Commonwealth can deal with the matter and may be a central legislature,' the existing law is preserved by section 108 of the Constitution, since the Commonwealth Parliament has not dealt with the matter, so far as the surrender of fugitive offenders to other parts of the British dominions outside the Commonwealth is concerned."

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I think, therefore, the decisions of the Supreme Court in West Australia in Ex parte Willis, and of REAL, J., in Queensland in In re Small, were erroneous, and that the decision of the Full Court, now under appeal, is right. I notice that one of the members of the last-mentioned Court was of opinion that this decision only