Jerger v Pearce

The case of *Jerger v Pearce* involved an action brought by Reverend Father Charles Jerger against the Minister of State for Defence of the Commonwealth. Jerger sought a declaration that the War Precautions Regulations 1915 were no longer in operation and were beyond the constitutional powers of the Commonwealth, along with an injunction to prevent his deportation from Australia. Concurrently, Jerger and another applicant sought a writ of habeas corpus to challenge his detention, which was alleged to be for the purpose of carrying out a deportation order. The matter was heard by Starke J. of the High Court of Australia.

The legal issues before the Court were whether the Minister's directive constituted a valid order for deportation under the Aliens Restriction Order 1915, and whether the War Precautions Act 1914-1918, particularly section 2(2) which defined the "present state of war," was a valid exercise of the Commonwealth's legislative power, specifically the defence power under section 51(VI) of the Constitution. The Court was also required to consider whether the definition of the "present state of war" was constitutionally sound, given the existence of peace treaties with some belligerents.

Starke J. found that the Minister's minute, directing that action be taken for Jerger's deportation, constituted a sufficient order under regulation 2J of the Aliens Restriction Order 1915, as the regulation did not prescribe any specific form for such an order. Regarding the validity of the War Precautions Act, the Court relied on previous High Court decisions, specifically *Farey v. Burvett* and *Ferrando v. Pearce*, which had upheld the validity of the Act and similar regulations. Starke J. determined that section 2(2) of the Act was within the defence power conferred by section 51(VI) of the Constitution, and that the Governor-General's power to proclaim the cessation of war was a constitutional delegation of executive authority. The argument that a state of peace had already subsisted was rejected based on the lack of a proclamation of peace with all belligerents.

Consequently, Starke J. dismissed the motion for an interim injunction and discharged the order nisi for habeas corpus, ordering that Jerger pay the costs of both applications.