§ 213. “Influx of Criminals.”
EXCLUSION OF CRIMINALS.—This sub-section is intended to embrace the class of cases covered by 18 Vic. No. 3, an Act to prevent the “Influx of Criminals” into Victoria passed by the Legislative Council and assented to by the Lieutenant-Governor on 16th November, 1854. That Act came into force at the beginning of the rush to the goldfields, when swarms of convicts and ticket-of-leave-men from other settlements invaded the colony and became a nuisance and menace to its peace and welfare. Any person who had been found guilty of any capital or transportable felony, in the United Kingdom or in any British possession, and who came to Victoria after the passing of the Act, was made liable to be apprehended and taken before two justices. Such justices were authorized, on proof that such person came to Victoria contrary to the Act, to convict him for the offence of so doing, and at their discretion they could either take bail that he would leave the colony within seven days, or cause him to be conveyed in custody to the country from whence he came, or sentence him to hard labour on the roads or other public works of the colony for a period not exceeding three years. Persons harbouring or concealing such convicts, and masters of vessels bringing them to Victoria, were liable to punishment. This law was re-enacted by the Parliament of Victoria
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under the new Constitution in 22 Vic. No. 68. It now appears in the Victorian Crimes Act, 1890, ss. 370–385.
The scope and validity of this Act were considered by the Supreme Court of Victoria in the case of Ryall v. Kenealy (1869), 6 W.W. and A'B. (L) 193. John Kenealy had, in 1865, been convicted in Cork of treason felony, for which he was transported to Western Australia for ten years. In 1869 he received a free pardon from the Crown; he was discharged from custody, left Western Australia and proceeded to Victoria, arriving in the port of Melbourne 6th July, 1869. Immediately on his arrival he was arrested under the Influx of Criminals Act, convicted, and ordered to enter into recognizances to leave the colony within seven days. A case was stated for the opinion of the full court. Against the conviction it was argued (1) that the Act did not create an offence, (2) that the defendant was not prohibited from coming to Victoria, (3) that the Act only applied to convicts whose term of imprisonment had expired, (4) that the free pardon of the Crown exempted the defendant from the prohibition, and restored him to the position of a new man without disability, (5) that the Act could not control or prejudice the Queen's prerogative, and did not affect any pardon granted by virtue of the prerogative. During the argument no attention seems to have been drawn to the words of the Act enabling the justices, as an alternative, “to cause the said person to be conveyed in custody to the country or possession from whence he came.” The constitutionality of that part of the Act was not in issue, as the defendant had not been ordered to be so conveyed out of the colony. Had that been done the conviction would, according to the principle established in Gleich's case and in Ray v. MacMackin, have been bad.
“We now come to the last objection, that relating to the prerogative. It is said that the Act interferes with the Royal prerogative. To that several answers have been given during the argument. One is, that the Act is descriptive merely as regards the persons who are to be affected by it. It only describes a fact, just as if it referred to persons born in a particular country, or marked in a particular manner. It simply says that persons found guilty of a felony cannot come here. The pardon cannot obliterate that fact, although it may remove the effects of the conviction. So it may be libellous to say that a person is a thief who has been tried and found guilty of a larceny, and pardoned; but it would not be libellous to say that he had been found guilty of it. A pardon relates to past offences, not to future; and the offence in this instance was subsequent to the pardon. Giving, however, the fullest force to the effect of the pardon, in this instance the prerogative of the Crown is subject to the enactment of the Legislature. The Crown as one of the three branches of the Legislature necessary to pass this Act, has assented to its being passed.…We are, therefore, bound to assume that by assenting to the Act the Royal prerogative was to be exercised, subject to the provisions of the Act so assented to. The authority in 5 Espinasse, Dover v. Maestaer, is conclusive on the point. It may be that the prerogative can only be taken away by express words; yet it can be affected by the fair and necessary intendment from an Act. The Crown is at liberty to refuse its assent to a measure that may interfere, not merely to one that must interfere, with the prerogative; and as this Act applies not merely to expirees, but to conditionally and to absolutely pardoned men, it might so interfere, and the Crown might have refused its assent. But it did assent; and the sound conclusion is, that in assenting to it the Crown expressed an intention that the Royal prerogative should be exercised subject to it. It is said that this construction would put a pardoned man in a worse position than an expiree. Perhaps so. But we cannot entertain such an objection. A person who takes a pardon takes it subject to all consequences and limitations” (Per Stawell, C.J., in Ryall v. Kenealy, 6 W., W., and A'B. pp. 206–7.
“This Act, 18 Vic. No. 3, is the third enactment on the subject of the influx of criminals. The first was passed in 16 Vic., and the matter was referred home. The nature of the legislation was so different from anything affecting the other portions of Her Majesty's dominions that for some reasons it did not become law. It was re-enacted in nearly similar words, and again sent home. The law officers who advised the Colonial Office were vigilant, if not jealous, for the Royal prerogative, and were disinclined to its becoming law; but they were disinclined to reject it, and it was therefore allowed to pass. No objection was taken to the inability of the Legislature to pass such a law, and if such a disability existed there is reason to believe it would have been pointed out. Since then the Act has been passed again and again. It is therefore part of the law of the British Empire—different from what exists in other parts of the empire—and subject to this law the Royal pardons must be issued. If a person disregarded the legislative
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prohibition which the Queen has assented to, and labours under the disability referred to in this Act, he comes here bearing a pardon giving him emancipation in any other part of the globe but this country. He takes the pardon subject to the contract between the Queen and the Parliament and to his inability to come here.” (Per Barry, J., id. p. 208.)
51. (xxix.) External affairs214:
HISTORICAL NOTE.—In the Bill of 1891 the sub-clause extended to “External affairs and treaties;” and at the Adelaide session of the Convention, 1897, the same words were adopted. At the Melbourne session a suggestion of the Legislative Council of New South Wales, to omit the words “and treaties,” was agreed to. (Conv. Deb., Melb., p 30, and see Historical Note, Clause V. of Constitution Act.)