Lee Fay v Vincent [1908] HCA 70; (1908) 7 CLR 389 (6 November 1908)

HIGH COURT OF AUSTRALIA

Lee Fay Defendant, Appellant; and Vincent Informant, Respondent.

H C of A

Case stated, transmitted from the Supreme Court of Western Australia.

6 November 1908

Griffith C.J., Barton and O'Connor JJ.

Barsden, for the appellant.

Northmore, for the respondent.

The judgment of the Court was delivered by

Nov. 6

Griffith C.J.

Barton and O'Connor JJ.

This was a prosecution in a Court of Petty Sessions for breach of a provision of the local Factories Act 1904 which provides (sec. 46) that no person of the Chinese or other Asiatic race shall be employed in a factory unless the employer satisfies the inspector that such person was so employed or engaged on or immediately before 1st November 1903.

Upon the hearing it appeared that immediately before that date the Chinese in question, being then a naturalized British subject resident in the State of Victoria, was engaged in a factory in that State.

Two questions were raised: First, that on these facts the Chinese in question was brought within the exemption, it being contended that the word "factory" as used in the exemption includes factories outside of Western Australia; and secondly, that, if it did not, the provision was invalid under the Constitution. The magistrate convicted the appellant, who appealed by way of a case stated to the Supreme Court. The Court, being under the impression that under the Judiciary Act 1907, which had just become law, this Court had exclusive jurisdiction to decide the second question raised, directed the case to be removed to this Court as provided by that Act.

That Act, however, only applies to questions as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States. The real question which arises in this case is not one of that kind, but whether the Statute in question was within the competence of the legislature of Western Australia under the Constitution. The ground of reference to this Court was therefore mistaken, and the case was cognizable by the Supreme Court. But the question whether the local Act was invalid under the Constitution, which was in fact raised, was a matter of federal jurisdiction; and under sec. 18 of the Judiciary Act 1903 the Supreme Court could refer that question for the consideration of a Full Court of the High Court. Under these circumstances we think that this case should be treated as a question reserved for consideration of this Court under that section. The question so raised arises upon sec. 117 of the Constitution, which provides that "a subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be applicable to him if he were a subject of the Queen resident in such other State." That section only applies to a person who, being resident in one State, is seeking to assert rights in another. In the present case the person in respect of whom the rights are asserted is a resident in Western Australia, not in another State, and the rights are asserted in Western Australia. The section has therefore no application, and the point, although it was raised as a question of federal jurisdiction, is not tenable, as Mr. Barsden now admits.

The other point to be decided is as to the meaning of sec. 46 of the Factories Act 1904. But that is not a question of federal jurisdiction, and this Court has no jurisdiction to determine it except as a Court of Appeal from the Supreme Court. The proper course then, the point which the Supreme Court must be taken to have referred to this Court being disposed of, is to remit the case to that Court to dispose of the question which is within their jurisdiction, but not within ours. A difficulty might perhaps have arisen if the appeal had been brought, as it might have been, direct to this Court from the magistrate. It was, however, properly brought to the Supreme Court, and we have jurisdiction to remit it to them for decision. The case must therefore be remitted to the Supreme Court for determination. The appellant must pay the costs of this appeal.

Case remitted to the Supreme Court for determination.

Solicitors, for the appellant, Moss & Barsden.

Solicitor, for the respondent, Crown Solicitor for Western Australia.