DEPORTATION JUDGMENT.

New Zealand Herald, Volume LXIII, Issue 19221, 9 January 1926, Page 1 (Supplement)

DEPORTATION JUDGMENT.

NEW ZEALAND'S POSITION.

BY R. M. ALGIE,

(Professor of Law, Auckland University College.) The judgment of the High Court of Australia, in the appeal of Walsh and Johnson against deportation, has already aroused widespread interest. It would appear, however, that a little misunderstanding exists as to the respective positions of New Zealand and Australia with regard to a case of this character. It has been suggested that 110 such difficulty as was revealed by the present case, could arise in New Zealand; and it has been pointed out that the Parliament of NewZealand has absoluto power within the limits of its territory.

The inference might be 'drawn from these opinions that the courts of New Zealand occupy a different position from those in Australia and could not be called upon to consider and pronounce upon the validity or otherwise of a statute passed by the New Zealand Parliament. Such an inference would be quite wrong, and for that reason it might bo worth while to examine for a moment the constitutional position of New Zealand in contrast with that of Australia.

The parliaments of all the colonies and dominions of the British Empire may in a general sense be described as being "non-sovereign, law-making, and constituent bodies." , This is a highly technical and lawyer-like phrase, but its meaning is easily made clear. In the British system there is only one fully sovereign Parliament, namely, that which meets at Westminster: it is fully sovereign because ilv can—in a legal sense—make or unmake any law it pleases. The Parliaments of all the colonies and dominions are non-sovereign for the simple reason that the sphere within which they can legislate is restricted: beyond that sphere such colonies ahd dominions cannot act effectively.

In this respect they are all alike. Each of them derives its legislative power from some Imperial Act, and, in individual cases, tho powers thus conferred may vary. For example, it may well be that the Parliament of New Zealand has wider legislative powers than the Parliament of the Commonwealth: this, in fact, is the case. But in both countries there is a limit to these powers, and, because of this limit, the two Parliaments must be similarly described as "non-sovereign."

I have also described these two legislatures as "law-making" bodies: this, of course, is self-explanatory. Finally, I have used the word "constituent." The use of this term implies that the legislatures to which it is applied may, to a greater or less extent, modify their own constitutions: in other words, they may vary the constitution which was in the first place bestowed upon them by the Imperial Parliament. This power, when given, is jealously safeguarded and is usually hedged round • with carefully thought-out restrictions. An examination of the relevant statutory" provisions shows that the New Zealand Parliament can vary the constitution of New Zealand much more easily than the Commonwealth Parliament could vary its constitution. Thus we see at a glance the difference between the two countries: our Parliament has a wider sphefe of legislative power and a fuller control over the constitution. But these are only differences in degree and nob in .kind.

A final point remains. Could the Courts of New Zealand, as was the case in Australia, pronounce upon the validity or otherwise of a New Zealand statute? The answer is most certainly an affirmative one. Our courts have on several occasions been called upon to undertake this task, and in this respect the courts of the two countries occupy analogous positions. A few instances may. prove interesting. In 1919, in the Court of Appeal, the late Chief Justice, Sir Robert Stout, asked whether the courts could, in any case, hold that a New Zealand statute was invalid. It is submitted that there is ample authority to justify an affirmative answer to this question. But one point deserves attention. I have used the word "invalid" only for the sake of clearness. Our courts cannot, in the strict sense, repeal any given statute;, all they can do is to say that the legislature which passed ib has exceeded its powers and that the statute is ultra vires and therefore invalid. It remains on the statute book until repealed by Parliament, but it has no legal operation. As far back as the year 1879 our Supreme Court was called upon to determine whether or not a New Zealand statute was ultra vires. A man named Gleich had committed an offence while in South Australia and had fled to New Zealand. He was there arrested under the provisions of the Foreign Offenders Apprehension Act, 1863—a New Zealand statute which, had received the Royal assent. The obvious purpose of this Act was to enable the Governor to remove from this colony prisoners who had committed an offence in another colony and to send them back under escort to that other colony. It was pointed out by the court that the limit of legislative power possessed by the New Zealand Parliament was to provide for the peace, order and good government of the co'.ony —that is to say, within the boundaries of the colony. Now, in carrying out the above-mentioned act, the prisoner would for a time necessarily be upon the high sea, and during such time he would, of course, be under arrest. The court held that the New Zealand Parliament in attempting to detain and control persons while on the high seas had. exceeded the powers; conferred upon it, and thai, to this extent, the above Act was ultra vires and invalid.

It is generally thought that the view of thei law here taken was too narrow and it has been suggested that this decision has been over-ruled by the Privy Council in its judgment in a celebrated Canadian case. Still the New Zealand decision illustrates clearly the point under consideration, namely, that our courts may be called upon to determine the validity of our own Acts. There have been numerous instances of this kind in the history of our Dominion; and it must suffice if only two more are referred to. • In 1917 the courts had to consider whether our Parliament could, by statute, send soldiers out of the Dominion to engage in the Great War: the answer here was that Parliament had not in so doing transgressed the limits assigned to it. Ones again, in 1919, a question arose as to whether Parliament, by means of the Crimes Act, could punish a person for a bigamous marriage contracted by him while out of New Zealand. ' In this case the court held that, in attempting to punish persons for acts done by them outside New Zealand, Parliament had once again transgressed the limit of the powers conferred upon it by the Constitution Aet. . Thus we see that a case similar to that of Walsh and Johnson could possibly arise in New Zealand; that in respect of such tvpes of case the Governments of Australia and of New Zealand have powers that differ in degree though not ill essence; and that the courts of Isew Zealand, like those of Australia, can, and often do, pronounce upon the validity-or otherwise of colonial legislation.