THE New Zealand Herald AND DAILY SOUTHERN CROSS. TUESDAY, JANUARY 5 1926. THE DEPORTATION JUDGMENT

New Zealand Herald, Volume LXIII, Issue 19217, 5 January 1926, Page 8

THE New Zealand Herald AND DAILY SOUTHERN CROSS. TUESDAY, JANUARY 5 1926. THE DEPORTATION JUDGMENT

The release of Walsh and Johnson, and consequently their escape from deportation, was not a victory for Labour, but a victory for Law. This is perfectly clear from the published judgment of the Federal High Court of Australia, to which appeal was made from tho decision of the Deportation Board. That judgment is the final word on the legal aspect of a prosecution that has become historic. It was instituted by the Commonwealth Government as a means to rid the community of a revolutionary menace of alien spirit and origin. It has failed, not because of any misinterpretation of tho mind of the Australian people, but solely because the procedure adopted was outside the four corners of the Government's constitutional powers. That Government has not unlimited powers of legislation. The limits aro set out in the Constitution Act initiating the Commonwealth. Any legislative power not specifically named there resides still in the component States. In dealing with the Communist menace, the Government relied mainly on the specification of power to make laws concerning "immigration and emigration," and by an amendment of the Immigration Act sought, in general terms, a way to bring Walsh and Johnson before tho Deportation Board. Under the provisions of that amended legislation the Government made good its case, only to find, on appeal to the High Court, that it had gone outside its powers. In their separate decisions, the five judges took, in detail, different ground, but their judgment declares the Government's action ineffective. A majority opinion favoured the Commonwealth's power to deport; but that power, it is evident, must be exercised against the right persons and in the right way, and in these respects the procedure was at fault. Without entering the thicket of legal argument, it may be stated that the applications for the release of Walsh and Johnson succeeded in their challenge of the Immigration Act amendment as either invalid or inapplicable or both, and there the matier rests for the moment. It cannot be too strongly insisted that the High Court did not sit in judgment on Walsh and Johnsgn. It did not even review the circumstances leading to their citation before the Deportation Board. It was not concerned in any sense with their doings. The Court's judgment did say something about those who /appeared (before the Deportation Board on their behalf. "The dilatory, obstructive and offensive conduct of those who appeared for Walsh" is the subject of strong comment, and the patience of the board, subjected to "treatment falling lamentably short of the standard that should regulate the conduct of members of the bar," is commended. These statements by the judges throw into high relief their scrupulous care to give the legal issues raised an absolutely unbiassed consideration. Those issues were chiefly constitutional. They set this case in a sequence of experiences undergone in the Commonwealth, which has shared with other federal countries the legal difficulties that beset government hedged about with specified limits of legislation. No such difficulties can arise in Great Britain, where legislative .action cannot be challenged before a judicial tribunal. Nor can they arise in a Dominion like New Zealand, given absolute and plenary power within the limits of its territorial jurisdiction. Parliament is supreme, and able to give full effect to the will of the people. The Commonwealth Government endeavoured to carry out a mandate plainly expressed. Its attitude in

the shipping strike was made the issue of the general election that sent Mr. Bruce back into office. Every phase of that question, including his express determination to deport the strife-makers, was thoroughly and vehemently canvassed ; and the verdict of the country was emphatic in his support. In spite of the most strenuous endeavours of political Labour, which forgot for the nonce its earlier repudiation of the element represented, by Walsh and Johnson, in a hope to gain partisan advantage from the crisis, the electorate manifested its loyalty to law in no uncertain fashion. It is known that large numbers of workers supported the Government in the crisis, recognising that it was fighting the battle of legitimate trade unionism against an insidious alien attack. The Government's plans have technically miscarried, but the settlement of the legal issue has not closed the case so far as the country is concerned. .

By one of the most ironical happenings in current events, men openly derisive of law have received the protection of law. From this point of view, the High Court's judgment is one to stir British pride. But there remains a practical issue yet to be faced, and it is to be expected that Australia will face it in a spirit of calm determination. The Commonwealth must be made safe from internal as well as. external menace. There are practices inimical to public welfare which its Government has endeavoured to make illegal and punishable. It has been foiled, not by the foes it sought to vanquish, but by the difficulties inherent in its own position. These will be overcome. It cannot be that these difficulties will remain insurmountable. The constitution and the statutes of the Commonwealth are not its masters, but its servants. They provide certain inevitable checks to legislative action in the federal system, but they must respond to the public will whenever it has been clearly and decisively expressed. The Government's legal advisers have now a task set them — to devise means to make the popular will paramount. Whatever legal barrier be in the way, it will be surmounted, by constitutional means, lest those who deliberately plot to injure the nation's industries and the people's livelihood, in insane endeavours to defy social order, have their ruinous way. What form the next attempt to safeguard the public weal will take remains to be seen.