R v Smithers [1912] HCA 96

R v Smithers [1912] HCA 96

The New South Wales Act, in making it an offence for any person convicted in another State of an offence liable for one year imprisonment to enter NSW, is invalid because it unjustifiably restricts interstate intercourse guaranteed by sec. 92 of the Constitution. The exclusion is not justified by necessity for public order, safety or morals, and State police power cannot override absolute constitutional guarantee.

Parties
Applicant: The King; Respondent: George Henry Smithers, Esq., S.M.; Applicant: Ex parte Benson
Jurisdiction
Australia
Judgment Date
20 December 1912
Procedural Posture
Application for Certiorari / Judgment of High Court on Order Nisi for Certiorari
Outcome
Conviction quashed; order absolute for certiorari.
Legal Topics
Inter State Migration, Police Power, Freedom of Intercourse, Discrimination Based on Residence
Constitutional Law Inter State Migration Police Power Freedom of Intercourse Discrimination Based on Residence

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Parties

The King

Applicant

George Henry Smithers, Esq., S.M.

Respondent

Ex parte Benson

Applicant

Procedural Posture

Application for Certiorari / Judgment of High Court on Order Nisi for Certiorari

Legal Issues

  1. 1 Whether sec. 3 of the Influx of Criminals Prevention Act 1903 (NSW) is invalid for contravening sec. 92 and sec. 117 of the Commonwealth Constitution
  2. 2 Whether the power of a State to exclude persons convicted in other States is limited by the Constitution

Ratio Decidendi

The New South Wales Act, in making it an offence for any person convicted in another State of an offence liable for one year imprisonment to enter NSW, is invalid because it unjustifiably restricts interstate intercourse guaranteed by sec. 92 of the Constitution. The exclusion is not justified by necessity for public order, safety or morals, and State police power cannot override absolute constitutional guarantee.

Court Disposition

Conviction quashed; order absolute for certiorari.

Orders

  • Order absolute for certiorari.
  • Conviction to be quashed on return without further order.