Agreement to assist foreign State-Calling up conscripts-War Precautions Act 1914-1916 (No. 10 of 1914-No. 3 of 1916), sec. 5-Aliens Restriction Order 1915 (Orders in Council of 27th May 1915 and 1st March 1916), par. 2J- The Constitution (63 &64 Vict. c. 12), sec. 51 (VI.), (XIX.).

Sec. 5 of the War Precautions Act 1914-1916 provides that the Governor- General may by order published in the Gazette make provision for any matters which appear necessary or expedient with a view to the public safety and the defence of the Commonwealth, and in particular

(b) for deporting aliens from the Commonwealth

(i) for appointing officers to carry the order into effect, and for conferring on such officers and on the Minister

such powers as are necessary or expedient for the purposes of the order." By par. 2J of the Aliens Restriction Order 1915 it is provided that "(1) The Minister" for Defence " may order the deportation of any alien, and any alien with respect to whom such an order is made shall forthwith leave and thereafter remain out of the Commonwealth. (2) Where an alien is ordered to be deported under this Order, he may, until he can, in the opinion of the competent naval or military authority, be conveniently conveyed to and placed on board a ship about to leave the Commonwealth, and whilst being conveyed to the ship, and whilst on board the ship, until the ship finally leaves the Commonwealth, be detained in such manner as the competent naval or military authority directs, and, whilst SO detained, shall be deemed to be in legal custody."

Held, by Barton, Isaacs, Higgins, Gavan Duffy and Rich JJ. (Powers J. dissenting), that par. 2J of the Aliens Restriction Order 1915 was within the authority conferred by sec. 5 of the War Precautions Act 1914-1916; that it conferred a discretion upon the Minister to make an order for the deportation of any particular alien, and authorized his subsequent arrest and detention

25 CLR 242

and the placing of him on board a ship chosen by the Minister, and his detention there whilst the ship was in the territorial limits of the Commonwealth, and that such an order was not rendered invalid by the fact that the Minister made it for the purpose of carrying out an agreement by virtue of which the Commonwealth Government was under an obligation to the country of which the particular alien was a subject to assist as far as possible in enforcing the return to that country of persons liable to military service there.

R. v. Home Secretary; Ex parte Duke of Château Thierry, (1917) I K.B., 922, followed.

MOTION referred to the Full Court by Higgins J.

An action was brought in the High Court by Cavaliere Giovanni Ferrando against the Honourable George Foster Pearce, Minister for Defence of the Commonwealth, and Cavaliere Emilio Eles, Italian Consul for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ferrando v Pearce

Details

AGLC: Ferrando v Pearce [1918] HCA 47
Case: [1918] HCA 47
Decision Date: 29 August 1918

CaseChat Overview and Summary

The case of *Ferrando v Pearce* concerned an application for an interlocutory injunction brought by Cavaliere Giovanni Ferrando against the Honourable George Foster Pearce, the Commonwealth Minister for Defence, and Cavaliere Emilio Eles, the Italian Consul for Australasia. Ferrando sought to restrain the Minister from exercising powers under paragraph 2J of the Aliens Restriction Order 1915 to arrest, deport, or detain him, and to restrain the Consul from instigating such actions. The dispute arose after Ferrando, an Italian subject residing in Melbourne, was ordered by the Italian Consul to present himself for embarkation to Italy for military service, and subsequently, the Minister for Defence made an order for his deportation from the Commonwealth.

The High Court was required to determine whether paragraph 2J of the Aliens Restriction Order 1915 was a valid exercise of the power conferred by section 5 of the War Precautions Act 1914-1916. Specifically, the Court had to consider whether the Minister's power to order deportation could be lawfully exercised for the purpose of facilitating the return of an alien to their home country for military service, and whether the subsequent arrest and detention provisions were valid. The plaintiff argued that the Minister was abusing his deportation powers, using them for a purpose beyond the safety and defence of the Commonwealth, and that this constituted an unlawful act.

A majority of the High Court (Barton, Isaacs, Higgins, Gavan Duffy, and Rich JJ., with Powers J. dissenting) held that paragraph 2J of the Aliens Restriction Order 1915 was within the scope of the authority granted by section 5 of the War Precautions Act. The Court reasoned that the Act empowered the Governor-General to make orders for the deportation of aliens with a view to public safety and defence, and that paragraph 2J validly conferred a discretion upon the Minister to order the deportation of any alien. The Court further held that the provisions for arrest and detention until departure were lawful. Crucially, the majority followed the decision in *R. v. Home Secretary; Ex parte Duke of Château Thierry*, finding that an order for deportation was not rendered invalid by the fact that the Minister made it with the intention of facilitating the return of the alien to their country of origin for military service, as long as the ultimate act of deportation itself was within the Minister's power. The Court found no constitutional impediment to the Minister's actions.

The motion for an interlocutory injunction was dismissed by the majority of the Court. The Court concluded that the Minister was not committing or threatening to commit any breach of the law, and that the arrest and detention of the plaintiff were lawful under the War Precautions Act and the Aliens Restriction Order. Consequently, there was no basis to restrain the Minister or the Consul.

Orders