R v MacFarlane [1923] HCA 39

R v MacFarlane [1923] HCA 39

Section 8A of the Immigration Act 1901-1920 is a valid law with respect to immigration, within s 51(xxvii) of the Constitution; the Board constituted is not a judicial tribunal and does not impose rights or obligations—it only recommends to the Minister; thus, prohibition, certiorari, and quo warranto do not lie to restrain its proceedings. Application for interlocutory injunction is refused—either because the section is valid and applies to the applicants (majority), or, dissenting, because no irreparable injury or urgency justifies interim restraint.

Parties
Prosecutor: The King; Respondents/defendants: Macfarlane, Manning, and Stinson (Board Members); Applicant/plaintiff: O'Flanagan; Applicant/plaintiff: O'Kelly
Jurisdiction
Australia
Judgment Date
23 August 1923
Procedural Posture
Constitutional Law—application for Prohibition, Injunction, Quo Warranto, Certiorari / Application for Writs (prohibition, Certiorari, Quo Warranto), Application for Interlocutory Injunction—first Instance, High Court of Australia
Outcome
Orders nisi for prohibition, certiorari, and quo warranto discharged; application for interlocutory injunction refused. Costs against applicants.
Legal Topics
Commonwealth Parliament Powers—immigration and Emigration (s 51(xxvii)), Deportation—immigration Act 1901 1920 S 8 a, Validity of Non Judicial Tribunals, Prohibition, Certiorari, Quo Warranto, Injunction—availability Against Administrative Body, British Subjects—not Australian Born—deportation, Liberty of the Subject—fair Trial—pending Criminal Prosecution
Constitutional Law Administrative Law Immigration Law Commonwealth Parliament Powers—immigration and Emigration (s 51(xxvii)) Deportation—immigration Act 1901 1920 S 8 a Validity of Non Judicial Tribunals Prohibition, Certiorari, Quo Warranto, Injunction—availability Against Administrative Body British Subjects—not Australian Born—deportation +1 more

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Parties

The King

Prosecutor

Macfarlane, Manning, and Stinson (Board Members)

Respondents/defendants

O'Flanagan

Applicant/plaintiff

O'Kelly

Applicant/plaintiff

Procedural Posture

Constitutional Law—application for Prohibition, Injunction, Quo Warranto, Certiorari / Application for Writs (prohibition, Certiorari, Quo Warranto), Application for Interlocutory Injunction—first Instance, High Court of Australia

Legal Issues

  1. 1 Whether s 8A of the Immigration Act 1901-1920 is within the legislative powers of the Commonwealth Parliament under s 51(xxvii) of the Constitution.
  2. 2 Whether a Board constituted under s 8A is a judicial tribunal amenable to writs of prohibition or certiorari.
  3. 3 Whether prohibition, certiorari, or quo warranto lie to restrain such a Board from proceeding to enquire into deportation.

Ratio Decidendi

Section 8A of the Immigration Act 1901-1920 is a valid law with respect to immigration, within s 51(xxvii) of the Constitution; the Board constituted is not a judicial tribunal and does not impose rights or obligations—it only recommends to the Minister; thus, prohibition, certiorari, and quo warranto do not lie to restrain its proceedings. Application for interlocutory injunction is refused—either because the section is valid and applies to the applicants (majority), or, dissenting, because no irreparable injury or urgency justifies interim restraint.

Court Disposition

Orders nisi for prohibition, certiorari, and quo warranto discharged; application for interlocutory injunction refused. Costs against applicants.

Orders

  • Orders nisi discharged with costs.
  • Motion for interlocutory injunction dismissed with costs.