Irish Envoys Case (1923) immersed the Court in a major political, religious, and public controversy. It is notable for the impassioned judgment of Isaacs, the manifest anxiety of Higgins, and the advocacy of Evatt.
Sinn Fein representatives Father Michael O’Flanagan and Joseph O’Kelly came to Australia in March 1923 seeking support for the Irish Republican cause—a cause that had just been defeated in the Irish Civil War (1921–23). The Civil War followed the Anglo–Irish Treaty of 1921 and the establishment of a moderate government in the Irish Free State. That government remained within the Commonwealth, whereas Sinn Fein demanded complete Irish independence.
One of Australia’s most controversial churchmen, Archbishop Daniel Mannix, welcomed the envoys at Melbourne’s annual St Patrick’s Day celebrations. The St Patrick’s Day procession had been the subject of controversy the previous year (see Melbourne Corporation v Barry (1922)). At first, the envoys met with mild criticism, but as they circulated about the archdiocese promoting their cause, feeling against them grew.
Mannix was the only Catholic bishop to have supported the envoys. The rest of the Catholic hierarchy made them unwelcome, supporting the Irish Free State and viewing the delegate’s visit as divisive. Father William Mangan, editor of one of Melbourne’s two Catholic papers, The Tribune, led the attack: ‘The good people in their Catholic halls are being asked to contribute to propagating the work of extremists. The burnings and shootings, the stab in the back, the looting of homes and sacking of defenceless villages … These are the gentle aims and objects of Fr O’Flanagan.’
Melbourne’s other Catholic paper, The Advocate, controlled by Mannix, retaliated. It labelled Mangan a ‘cawstle Cawtholic’ and his views ‘a whining and slavish doctrine’. Mangan responded sarcastically, suggesting sacrificing the envoys at the zoo ‘or in the stadium’.
At a ‘monster’ Irish Republican demonstration, O’Kelly attacked ‘the Papish little mosquito editor’ of ‘that so-called Catholic paper’, The Tribune. Even Mannix thought O’Kelly’s personal abuse of Mangan was going too far. Religious and political groups, members of the public, and Commonwealth Attorney-General Littleton Groom, called for the envoys’ deportation.
The envoys were arrested in April and charged with sedition under the Crimes Act 1914–15 (Cth). While criminal charges were still pending, O’Flanagan and O’Kelly were summonsed to appear before the Immigration Board to show cause why they should not be deported for advocating ‘the overthrow by force or violence of the established Government of a civilised country other than the Commonwealth, to wit, the Irish Free State’. Mannix opened a fund for the envoys’ defence. O’Flanagan and O’Kelly commenced proceedings in the High Court. Evatt, led by Andrew Watt KC, acted for the envoys. Evatt and Watt argued that the use of section 8A of the Immigration Act 1901–1920 (Cth), under which the Immigration Board was appointed, was invalid and sought a declaration to that effect. They also sought a writ of prohibition, certiorari, or quo warranto, or an injunction to restrain the Board from proceeding. Evatt’s biographer Kylie Tennant has described the hearing: ‘The argument was tortuous and interminable cases came hurtling across the court from the bench to the Bar and back above the bewildered heads of the two Irish gentlemen.’
Since the conduct of the Board’s hearing might prejudice the envoys in their choice of tactics in the criminal proceedings against them, Isaacs held (Knox and Rich agreeing) that, if the hearing had been unlawful, an injunction would have been appropriate. After a passionate speech about the High Court’s role in protecting individual liberty, Isaacs concluded: ‘I consider that the clear assertion of the power of the Court to protect individual rights of liberty from unauthorised violation, particularly when asserted in the name of the law, is, even among the many important features of this case, by far the most important.’
The Court in any event held unanimously that intervention by prerogative writ was not appropriate, since the Board was not exercising judicial power. Higgins—who was Irish-born, Protestant, and a firm supporter of Home Rule—expressed anxiety:
I have … anxiously sought to find in these provisions … something which would justify me in holding that this Board of inquiry has the essential qualities of a judicial tribunal, and that these men cannot be ejected from Australia without a trial of some sort … [But by weight of precedent] I am compelled to say that this Board is not a judicial tribunal to try these men in any sense for the offence; and in my opinion, therefore, the rules nisi for prohibition must be discharged.
On the constitutional issues, Evatt and Watt argued that section 8A exceeded the immigration power in section 51(xxvii) of the Constitution. They argued that the immigration power did not extend to British subjects, or that it was limited to migrants intending permanent settlement, or that it could apply only at the point of entry in Australia. Four Justices rejected these arguments. They took a wide view of the immigration power, spelled out most emphatically by Isaacs.
Isaacs held that the concept of immigration is not limited to permanent settlers but extends to the entry into Australia of any person who in so entering is not ‘coming home’. Any concept of ‘visitors’ who were outside the immigration power would leave the Commonwealth unable to control the entry of crime, prostitution, and infectious disease, and would undermine a sentiment ‘of paramount significance, a determination to preserve a White Australia’. In another flight of rhetoric, Isaacs said:
Unless the recited power is sufficiently broad to meet, not only possible, but very probable, movements of population from other parts of the world towards Australia, we have but a crippled Constitution wherewith to meet the necessities of the future. That it is ample, in relation to this power, to protect people of Australia physically, racially, industrially and socially, is, to my mind, perfectly clear … Who could imagine that, when ‘immigration’ was entrusted to the Commonwealth Parliament, Chinese visitors were to be henceforth free from interference? Such a contention puts back the clock of Australian history a quarter of a century.
Isaacs also held that the power is not limited to the ‘act’ of immigrating. If entry into Australia can be prohibited, it can be allowed on conditions: deportation for reasons arising after entry is valid. In a phrase that in later cases became inseparably linked with Isaacs’ name, he said, of anyone whose first home was elsewhere, ‘the rule holds “Once an immigrant always an immigrant”’.
Even Higgins, in obiter dicta, somewhat ambiguously held that the Immigration Act could apply to British subjects, though in Potter v Minahan (1908) he had spoken of all British subjects throughout the Empire as belonging to ‘one great society’ with ‘one tie of allegiance to the one Sovereign’
It may be that some lingering wish on Higgins’ part to maintain the freedom of all British subjects ‘to move at will throughout the Empire’ contributed to his dissent on the other two constitutional issues involved. Higgins held that the immigration power did not extend to a person entering Australia merely as a temporary visitor with no intention of permanent settlement; and also that the power was applicable only to ‘the act of immigrating’—that is, that it could only be exercised at the point of entry into Australia, so that once having been allowed to enter the country, the Irish envoys had passed beyond the reach of the ‘immigration’ power. On these points, Higgins was in sole dissent.
Having failed in the High Court, the envoys were deported in June 1923. Their deportation was delayed after Evatt arranged for their temporary release when the government found there was no ship available to deport them. Mannix later paid tribute to Evatt’s defence of the envoys.
In Ex parte Walsh and Johnson; In re Yates (1925), Evatt (opposing Robert Garran) attempted to impose some limits on the immigration power. In a strenuous challenge to Isaacs’ contrary view, Evatt argued that a person who was once an immigrant might pass beyond the reach of the power by being absorbed into the Australian community. Although Evatt managed to persuade Knox and Starke, Isaacs’ uncompromising view remained to haunt the Court for decades (see Immigration law).