In November 1975, five persons, including Luigi Pochi and Francesco Sergi, had been arrested at or near a cannabis plantation at Coleambally. Mr Justice Woodward said that others escaped the raid. He said that,

"The Coleambally plantation still remains the largest single crop yet discovered in Australia and it was evident that a crop had been successfully grown and harvested at the same location the previous season;".

At the trial of the five men, the jury failed to agree on Sergi but the others were convicted and sentenced to terms of imprisonment. In March 1977, police raided "Willra" Station near Euston. In that raid, the applicant was arrested. At pp111-112 Mr Justice Woodward said,

"On 5th March, 1977, police went to 'Willra' Station at Mount Dispersion, near Euston in south-western New South Wales, where they found an area of about six hectares which had been used to grow cannabis. Only about two hectares of the crop was still standing, the remainder having been harvested. A large quantity of marihuana was drying in a roughly constructed shed hidden in trees near the crop site.

Four men were arrested on or near the property and at least six more escaped. Those detained were :

Vincenzo Ciccarello, who was born at Caulonia, Calabria (about 25 kilometres from Plati) on 30th March, 1923,

Vincenzo Piscioneri, who was born at Caulonia on 20th April, 1932,

Vincenzo Barbaro, who was born at Plati on 6th June, 1945. Beyond the surname, no family connection can be made to Rocco or Francesco 'Little Trees' Barbaro, and

Savero Barbaro, born at Plati on 5th March, 1948. He is the brother-in-law of Francesco Barbaro, the nephew of Rocco Barbaro and a known associate of Luigi Pochi. With Rocco Barbaro and others he is the joint owner of a grazing property at Gunning.

'Willra' Station was purchased by Ciccarello on 1st April, 1976, for $92,000. A loan of $42,000 was obtained from the Rural Bank at Dareton and the balance of the money, apart from one cheque of $3,857.69, was made up of various cash amounts deposited by Ciccarello with his own or the vendor's agents. He told local people that the cash was the proceeds of the sale of a property by his wife in Italy.

In evidence to this Inquiry, Ciccarello claimed that he had been given about $83,000 in cash, in five separate amounts, viz., $18,000, $25,000, $22,000, $13,000 and $5,000, by an Italian he only knew as Bruno. He claimed he had met this man in a hotel in Redcliffs, quite fortuitously, and after telling 'Bruno' that he had fallen on hard times, 'Bruno' offered to help him purchase a larger property to free him from his difficulty. Ciccarello alleged that $65,000 of the money was a 'ten year loan' which had to be paid back at 10 per cent interest. A contract was drawn up in those terms but unfortunately 'Bruno' kept the only copy. The balance of the money was to buy irrigation equipment and a bulldozer for use on the property.

A number of items were found at 'Willra' which tended to suggest links with the Griffith 'group' :

A packing case branded F & S Sergi, Tharbogang.

A large number of green plastic bags which had been purchased from the same supplier as had others found at Coleambally.'

Two sets of scales from Donaldson's 'Mitre 10' hardware store at Griffith.

A pair of trousers with the name 'Sergi' printed on the inside lining of a pocket; apparently a dry cleaning mark.

A Holden panel van HKE 113 which had in the glove box registration papers for a second vehicle, GYX 962, that was registered in the name of 'Pant Ranch', 399 Banna Avenue, Griffith. This firm was owned by Gayelle and Glenda, the daughters of Robert Trimbole, and the vehicle concerned was later found on Gayelle's rice farm."

At their joint trial, Ciccarello, Piscioneri, Vincenzo Barbaro and the applicant pleaded not guilty, were represented by counsel and gave evidence. They were convicted and sentenced as follows: Ciccarello -- 7 years' imprisonment with a 3 years' non-parole period; the applicant, Piscioneri and Vincenzo Barbaro - 3 years' imprisonment with 18 months' non-parole period.

Before me, Mr Barbaro repeated the substance of the story which he had put to the jury at his trial. The essence of the story is that, due to a downturn in the painting trade, he decided to seek work picking grapes. On the morning of Friday, 4 March 1977, he commenced hitchhiking to Mildura. He caught one lift in a car from Canberra to Yass and another lift in a truck from Yass to Mildura where he arrived early on Saturday, 5 March. He was standing on a footpath in Mildura thinking of going to the employment office when a car pulled up and the driver asked him if he was looking for work. He said, "yes" and got in the car. The driver, who was Vincenzo Ciccarello, drove him to "Willra" Station and said that he could stay in the house. Ciccarello told him that, as he had insufficient men, the grape-picking would not commence for a couple of days but there could be some other work he could do. Mr Barbaro went to the house where he saw a man named Tom. He was shown a room for his own use. He explained to Tom that he had come to pick grapes but that he understood that there may be some other work until the grape-picking could start. Tom showed him a track and told him to go down the track to a shed. He did that and found there Vincenzo Barbaro whom he did not know but who also had been born in Plati. Vincenzo Barbaro was cutting and sorting some vegetable matter and told the applicant that he could do the same. The applicant did not know what the vegetable matter was or that it was marihuana. The applicant worked with Vincenzo Barbaro for some time and, at one stage, found that lunch had been served. He did not see anyone on the property other than Vincenzo Barbaro, Vincenzo Ciccarello and Tom. After lunch, about 1.30 pm, he heard a voice call out "Run save your life". Being scared, he and Vincenzo Barbaro ran together in a direction away from the house. Subsequently, while walking along a road in the vicinity of the property, they were arrested by two police officers.

I need not deal with Mr Barbaro's story in any greater length. There are in the story a number of features which make it highly improbable. The applicant had adequate funds available to him when he left Canberra. He provided no sound reason as to why he did not take one of the two cars which he left parked at his home. The circumstances in which he was picked up in Mildura have the flavour of a pre-arranged meeting. It is unlikely that the applicant did not ascertain what was the vegetable matter on which he was working or that he did not see anyone on the property other than the three persons I have mentioned. . The evidence of Mr S.J. Duncan was that he saw a group of six to ten persons including the two Barbaros moving away from the property. The two Barbaros were apprehended while escaping from the property. And, the evidence given by the applicant was, in a number of respects, which I need not detail, contradicted by police officers.

The conviction is itself strong evidence of the applicant's guilt, particularly in the light of the fact that it was the result of a lengthy trial at which the applicant was represented. In the light of the conviction, the fact that the story told by the applicant appears to me to be highly improbable and the fact that, in his evidence to me, the applicant appeared on several occasions not to be telling the truth, I draw the conclusion that the applicant was guilty of the offence for which he was convicted and that his evidence before me was untrue.

Indeed, the evidence against the applicant in this review is stronger than that which was put against him at the trial, although the additional evidence only adds to the clarity of the applicant's guilt. In this review," there is the evidence, mentioned also in Mr Justice Woodward's Report, as to items found at "Willra" Station which suggest links with the other marihuana plantations. I have set out Mr Justice Woodward's findings in relation to these items above. The findings are supported by evidence given in this review. Further, Mr Justice Woodward found a connection between Antonio and Domenico Velardi, both born at Plati, and other persons in the drug trafficking organisation which he described. Page 114 of his Report states that the result of extensive soil tests taken from marihuana found at the home of Antonio Velardi in Fairfield, New South Wales, in February 1978, "show conclusively that the marihuana seized at Fairfield came from 'Willra' Station". Mr Justice Woodward's Report examined the financing of "Willra" Station and the information given by Vincenzo Ciccarello and concluded that the person alleged by Ciccarello to be responsible, "Bruno", was a person named Robert Trimbole. The Report examined Mr Trimbole's connection with marihuana growing not only at "Willra" Station but also at the other plantations, in respect of some of which relatives of the applicant were involved.

Moreover, the evidence before me shows that, after bail of $10,000 each was set for the four accused at Euston Court on Wednesday, 10 March, all four accused were bailed out together on Thursday, 11 March, at Broken Hill Police Station when $40,000 in cash was delivered. The four accused, who had the obligation to report daily at the Euston Police Station, thereafter stayed together during the next four weeks at "Willra" Station and, while there, engaged the same solicitor, Mr VA Tallarida who, according to the applicant, was chosen by him from the Victorian telephone book. There is an interesting coincidence in that the $40,000 bail which was provided in cash at Broken Hill Police Station, was exactly the amount that the four accused were subsequently charged by Mr Tallarida. And, notwithstanding that this was a criminal case, Mr Tallarida did not seek payment of his first $20,000 until the completion of the committal proceedings and did not seek the second $20,000 until the completion of the trial. Before me, a good deal of evidence was given concerning the raising of $10,000 bail money for the applicant. I do not place much weight upon the provision of the $40,000 bail money in cash as an adverse factor against the applicant's story. But the fact that the four accused stayed together and engaged the same solicitor seems to me to confirm adequately, if it needs confirmation, that the four accused were associated together in a common affair.

I am therefore satisfied that Mr Barbaro was guilty of the offence for which he was convicted. The Minister drew the further conclusion, in part from matters contained in Mr Justice Woodward's Report, that the applicant was a member of a criminal organisation. At page 1938 of his Report, Mr Justice Woodward summarised his conclusions as follows :

"Between about 1974 and 1977 there was an organisation, comprised almost exclusively of persons of Calabrian descent, and based mostly in Griffith but partly in Sydney, which was engaged in the. illicit cultivation, trafficking and marketing of cannabis. The persons involved have been named in Part II of this report but the growing was mainly supervised by Antonio Sergi of Farm 1305, Tharbogang, whilst the distribution and marketing of the drug was controlled by Robert Trimbole. (p.200)

This organisation was directly responsible for cannabis plantations located at Tharbogang, Hanwood, Coleambally and Euston and there are indications that it was also involved in a number of other crops detected both intrastate and interstate, particularly in South Australia. (p.200)

The Calabrian cannabis growers who operated in and around Griffith, with their marketing outlets in Sydney, were and probably still remain, the largest growing and marketing operation in the State. (p.103) "

I do not take his Honour's findings to mean that the "organisation" was an organisation of a formal kind or that all persons in the organisation participated in all the cannabis plantations which his Honour discussed. I do not take his Honour to mean that every person who assisted in the operations of cannabis growing became a member of a club or association. Rather, I take his Honour to mean that the cannabis plantations at Tharbogang, Hanwood, Coleambally and Euston were not mere isolated activities, but were brought about by or with the assistance of persons who were involved generally in the production and trafficking of cannabis and that the growing of cannabis occurred in connection with an established distribution network. In this sense, there was an organisation. His Honour's view was that the Calabrian cannabis growers were themselves involved in the marketing of cannabis. For the purpose of this review, it is not necessary for me to consider that aspect. I accept, for the purpose of this review, that the plantations at Tharbogang, Hanwood, Coleambally and Euston were the product of persons almost exclusively of Calabrian origin or descent and that they were not haphazard isolated criminal activities but played a part, in association with a distribution network, in the trafficking in cannabis on a large scale.

Mr Justice Woodward concluded that the organisation of which he spoke was responsible for the death of Donald Bruce Mackay, a citizen of Griffith, who disappeared on 15 July 1977. His Honour's conclusions, reported at pp 1938-1939, were,

"Donald Bruce Mackay was disposed of by members of, or on behalf of, that organisation, who originally planned to do it at Jerilderie on 12th July and then, when he did not go there, affected it at Griffith on 15th July, 1977. (p.197 & p.200)

On the evidence I am satisfied Donald Mackay is deceased and that the likelihood is that his death was effected by or on behalf of an organisation of persons to whom his continued existence and his attitude in relation to the drug menace in Griffith was an embarrassment. (p.608)"

The reasons which the organisation or persons in the organisation may have had for murdering Mr Mackay are discussed by his Honour at pages 1927. One of the possible reasons discussed is that, during the trial of the persons arrested at the Coleambally plantation, it may have become known that Mr Mackay was the informant who co-operated with Detective Jenkins from the Sydney Drug Squad and that, as Detective Jenkins was the officer who led the raid on the "Willra" Station, it may have been assumed that Mr Mackay was also the informant in relation to that plantation. His Honour investigated Mr Mackay's disappearance and concluded that he was murdered and that it was most likely that he was murdered by the organisation because he represented a threat to its activities. For the purpose of this review, I accept his Honour's findings in that respect.

Mr Justice Woodward also made findings in relation to a secret Calabrian society which he described as "The Honoured Society" At page 1941, his Honour summarised his view as follows :

"A secret organisation, called variously 'The Honoured Society', 'L'Onorata Societa', 'N'Dranghita' or simply 'The Society', exists in Australia. It is composed exclusively of persons of Calabrian origin. It has been involved in extortion and other criminal activity, the most notorious being the series of shootings described as the 'Victoria Markets murders'. There was, and probably still is, a 'cell' of this society in Griffith. Certain persons I have found to be involved in drug trafficking are members of this society but I am unable to say on the evidence whether the society, as an entity, was concerned in cannabis production or whether individual members were acting independently and perhaps paying a levy to the area leader. (p.198 & p.201)"

At pages 492 and 493, his Honour included the names of the four persons arrested at "Willra" Station as members of a secret organisation in Griffith, probably a cell of the "Societe Onorata".

I do not understand this finding to suggest that there was any information as to the applicant's involvement in a secret society other than his involvement in the activities at "Willra" Station. For the purposes of this review, it is not necessary for me to concern myself with "The Honoured Society" save in one respect. The evidence given before Mr Justice Woodward as to the financial position of various persons and the additional evidence before me indicates a surprising capacity in some Calabrians readily -to obtain "loans", even from persons who would seem to be in quite poor financial circumstances. Such loans appear on the evidence to remain outstanding for many years, to be without documentation and, if repaid, to be repaid without interest. This evidence supports the view that there is in the Calabrian community in Australia either a form of "The Honoured Society" or at least an unusual community of interest and thought. Mr Justice Williams suggested that such a circumstance may facilitate the development of criminal activities within an ethnic community. I give weight to this fact in this review for, as I shall now turn to point out, the applicant is one of the persons to whom funds have been made available from time to time by other Calabrians, in a manner which I find surprising.

The applicant left school at approximately the age of 15 and thereafter assisted his father on a small property of two to three acres outside Plati. In 1968, when he was 20 and when most of his brothers and sisters had' already migrated to Australia, the applicant came to Australia for the purpose of permanent settlement. He lived for some time with his sister Theresa and worked as an employee for her husband Pasquale Calabria as a painter. In 1969, the applicant purchased a house block at Scullin and over the ensuing three years, with the help of friends and relatives, constructed a pleasant home on that block. It is surprising that a person from such a poor background achieved this standard of living in such a short time. The evidence does not suggest that the home was built from other than legitimate financial sources. Nevertheless, the standard of the home suggests that the applicant had and considered himself to have the support of his relatives.

In 1972, the applicant joined his brother Giuseppe in a partnership of painters and decorators and, in 1973, the applicant married his cousin Elizabeth Barbaro. The wedding was well attended and cash gifts totalling $5,000 were presented to the married couple.

Four children of the marriage were born and I shall deal with the family circumstances later. The applicant and his wife led a quiet life. The applicant was a member of the Italo-Australian Club which he visited once a week or so and at which he conversed with other Calabrians including Luigi Pochi and Rocco Barbaro.

The applicant's parents had migrated to Australia in 1971 and they and some of the applicant's brothers and sisters are naturalised. The applicant did not apply for naturalisation. In evidence, he said that he "just never got around to it".

The failure of a person to apply for citizenship is not often a matter of significance in the review of a deportation order. Such failure can arise from reasons which are perfectly understandable, including, eg, an intention on the part of a migrant to return to his homeland. However, the failure may have significance and, in this review, it is I think an indication, though a very minor one, that the applicant involved himself in a special way with the Calabrian community.

In 1975, land at Gunning was purchased for $28,000 by the applicant, his wife's father Pasquale Barbaro, Rocco Barbaro and Antonio Barbaro. The applicant said that, of the $7,000 which he was required to provide, he had $2,000 which he was able to contribute and borrowed $1,500 from Domenic Musolino, $1,500 from Rocco Pipcelli, $1,000 from Saverio Laria, and $1,000 from Domenico Italiano. He said that these borrowings may have been documented. However, no documentation of them was produced. The sums borrowed have not been repaid. The applicant's evidence as to the reason for purchase was somewhat vague:

"What was the purpose of purchasing the land?-The purpose to purchase the land was so I get a bit of land so I can pay it off a bit at a time and have a bit of land later on to' retire or...

Did you purchase it to grow anything on?--No. Not at that stage, no.

Did you purchase it to run cattle or sheep or something on it?-At that stage then I just bought the land.

Not at that stage?-Not at that stage, you know, because we just bought the land.

Did you purchase this money because you were advised - sorry, this land because you were advised to do so by Rocco Barbaro? Was it his idea that you purchase this land?--I cannot remember whose idea it was.

It certainly was not your idea, was it?-Well, I can remember if my father in law found or even asked me if I wanted to join in.

You did not really know what the land was purchased for, did you?-What do you mean by land was purchased for?

You did not know why you were a partner of this venture?-I know I was a partner because I went in to have a share in it.

You did not purchase this land on money that you were given by Rocco Barbaro or Antonio Barbaro?---No.

Whose idea was it to buy the land at Gunning?-Actually my father-in-law found this land and he asked me if I wanted to be in it.

Did your father-in-law indicate for what purpose he wanted you to be in the land or for what purpose he wanted the land?-Just to see if I wanted to be in on the land because we are son-in-law and father-in-law so later on we can have a bit of land for the children or when we retire, you know."

The last of these answers provides a sensible explanation for the purchase of the land but, although it provides an explanation as to why the applicant and his father-in-law sought to purchase the land, it provides no reason for the purchase by Rocco Barbaro and Antonio Barbaro, unless they too were wishing to benefit the applicant and his children. The applicant had no later association with the land other than to go there to repair a fence. On his evidence, a few cattle, ten or twelve, and a bull were purchased and placed on the land. That was attended to by the others and he had nothing to do with it.

In March 1977, the applicant left Canberra looking for work at a time when he and his wife had money in bank accounts and there was $6,000 approximately standing to the credit of the partnership bank account. Although his income tax returns for each of the two prior years had shown a gross income of approximately $7,000, his income for the year ended 30 June 1977 was $15,175. The applicant was arrested on 5 March and bail money of $10,000 was said in the evidence to have been borrowed as follows: Pasquale Barbaro (brother) $2,000, Pasquale Calabria (brother-in-law) $2,000, Giuseppe Barbaro (brother) $1,000, Antonio Barbaro (brother) $1,000, Pasquale Barbaro (father-in-law) $1,000, Antonio Perri (friend) $1,000, Domenico Cui (friend) $1,000, Pasquale Trimboli (friend) $1,000. From this bail money, $5,000 was paid to Mr Tallarida, the solicitor, at the end of the committal proceedings. A further $5,000 was paid to Mr Tallarida after the trial. The evidence was that $5,000 was repaid as follows: to Pasquale Barbaro $1,000, to Pasquale Calabria $1,000, to Domenico Cui $1,000, to Antonio Perri $1,000 and to Pasquale Trimboli $1,000.

After the applicant went to gaol in March 1978, the land at Gunning was sold for $40,000 to an adjoining property owner. The applicant said in evidence that he could not remember whose idea it was to sell it. In July 1978, other land in Murrumbateman was purchased by the applicant, Pasquale Barbaro, Rocco Barbaro and Anna Barbaro, Antonio Barbaro's wife. The total purchase price was $42,000 and the applicant had to pay another $500, which came from welfare back pay to which his wife was entitled. That land at Murrumbateman has now been sold, on the applicant's evidence, so that he can repay the persons from whom he had borrowed the $5,000. At the time of the hearing, settlement had not been effected. In evidence, the applicant said, "I sold it", that it was his idea to sell the land and that the others agreed.

I have set out the above matters in relation to the land at some length because it shows a financial association with Rocco Barbaro and Antonio Barbaro. The statement "I sold it" contrasts strongly with the earlier evidence which shows little involvement on Mr Barbaro's part in either the purchase, running or sale of the Gunning property or the purchase of the Murrumbateman property. The transaction does tend to show the conferring of a financial benefit upon the applicant by his wife's father and uncles. Moreover, it should not be overlooked that the Murrumbateman property was purchased at a time when the applicant owed $15,000 to various persons. It is difficult to draw positive conclusions about the matter, but, nevertheless, the financial transactions do, I think, give rise to suspicion and add to the case against the applicant. It is proper to note, however, that apart from the matters I have mentioned, no other evidence suggests either the receipt of unusual financial benefits or the receipt of unexplained income.

Mr Barbaro commenced his sentence in March 1978 and was released at the expiration of the non-parole period. His prison reports were excellent. On 27 March 1979, the Acting Superintendent of the Department of Corrective Services wrote to the Department of Immigration and Ethnic Affairs that,

"Since reception he (Barbaro) has proved a reliable and conscientious worker who is prepared to work to the limit of his ability with a minimum of supervision. Overall, his conduct, industry and diligence is well above the average. A model prisoner in every respect."

Mr DJ Sutton, the Resident Probation and Parole Officer at Tumbarumba, has written,

"Whatever the extent of Mr Barbaro's involvement in the crime, it is clear that he is most unlikely to re-offend."

Mr M.J. Kennedy, an officer of the Department of Immigration and Ethnic Affairs, reported on 20 August 1979,

"Saverio Barbaro impressed' at interview as being a person who has learnt his lesson and who is unlikely to again offend in the future."

Since his release from prison the applicant has been in constant employment. He has had only the one conviction. He is a person who has an established position in Australia. He has a wife and children to support, assets and a business, a stable relationship with his wife and children and supportive relatives. He is a mature person and, apart from his involvement with marihuana, has shown no tendency for irresponsible behaviour. These matters suggest that he should not again offend. However, the matter cannot, I think, be looked at on the footing that the applicant's only involvement in crime was an involvement in an isolated crime unconnected with any on-going criminal activity in the community.

As I do not believe the story Mr Barbaro has put forward, I am left without reliable evidence as to the extent of his involvement in the affairs of the "Willra" plantation or generally in relation to the organisation on which Mr Justice Woodward has reported. The learned trial judge did not have before him evidence which showed that the applicant may have had an involvement in the venture greater than that of Vincenzo Barbaro or Vincenzo Piscioneri. But there is before me more evidence about the matter. The familial relationship between the applicant and many of the persons involved in the drug plantations has become apparent. In particular, the applicant has a close relationship with his wife's uncles. He sees Rocco Barbaro socially and has had a financial venture in land with Rocco Barbaro and Antonio Barbaro. He has a specially close relationship with Antonio and Anna Barbaro. In these circumstances, the applicant's association with the "Willra" plantation calls for an explanation from him. I am not prepared to assess risk to the community simply on the basis that he was a mere worker on a plantation organised by others. He knows what his involvement was and he alone can say.

Moreover, it is a continuing affront to the community that the applicant has knowledge which he is not prepared to impart. In his case I am satisfied that he has such knowlege and that he has not imparted it. The learned trial Judge took the same view for, in the course of his sentence, he said, "I believe each one of you has deliberately chosen not to assist." Mr Justice Woodward and Mr Justice Williams have both reported on the immense difficulty which faces the law enforcement authorities in obtaining information which would enable them to act effectively. The mere fact that there have, in recent years, been the two Royal Commissions investigating the problem indicates the significance of relevant information. The applicant has information which would be of value to the community and it is offensive to the community that that information not be disclosed, particularly as the information concerns the identity of the persons involved with the organisation of which it has been said by Mr Justice Woodward that it was responsible for the disappearance of Mr Donald Mackay, a murder which has yet to be solved.

Indeed, it is a feature of the evidence in this review that several witnesses denied knowledge of matters of which it is reasonable to suppose they had knowledge and denied conversations which it is reasonable to conclude they must have had. The applicant denied seeing any persons on "Willra" Station prior to the raid save Vincenzo Barbaro, Ciccarello and "Tom". He denied knowledge of who were the persons other than the . accused at "Willra" Station during the weeks he stayed there after his release on bail. When asked, "I put it to you that you know Antonio Sergi, who lives at The Winery in Griffith?" he replied, "No" an answer which may have been strictly correct but which was scarcely forthcoming in view of the fact that Mr Sergi's sisters were married to three of his wife's uncles and to Luigi Pochi. He was then asked, "Have you ever heard of him?" and he replied "I heard it some time on the news but never met him." When asked in cross-examination, "What did you know about Luigi Pochi before your arrest?" he replied, "I read in the paper or heard on the news that he was arrested." The following questions and answers ensued.

"Did you know anything about what he was arrested for, in connection with something?-All I read he was arrested on the property which was found - some plantation. That is all.

Did you know it was in relation to drugs of some descr iption?----No.

Was there any talk at the Italo Australian Club about Luigi Pochi having been arrested?---Not that I heard of.

Did you talk to him about it?-It is none of my business talking."

The applicant's brother, Guiseppe Barbaro, was likewise reticent in his answers.

"Do you know a Rocco Barbaro that lives at Spence?---Yes, I know him, yes.

And do you know that he has been convicted of an offence in relation to marihuana?-I did not know.

You did not know that fact?-I did not - I heard about it, but I did not know what was about, you know.

And people at the Italian Club talk about the affairs of other people, do they not?- Yeah, but I did not take any notice what the people said, you know, because I make my own business.

You heard other people talking about Rocco Barbaro's arrest at the Italian Club but you did not ask questions about it, is that what you are saying?- I did not hear anyone talk about it but could be I heard someone but I did not worry about it because that is - what I going to say - not business my what the other people doing, see.

You know that? Do you know Luigi Pochi?-I met him at the club, yeah.

And do you know that he has been involved in marihuana?- I do not know. I tell you the truth - probably I hear it in the news but I do not know what for."

That evidence is in marked contrast to that of Mr J.B. Memmelo, a prominent member of the Italo-Australian Club, who gave the following evidence,

"Do you know, Mr Memmelo, that Mr Pochi. has been • arrested and convicted in relation to offences?---- Yes, I do..

And did you know whether you heard about that from the club or from elsewhere, or both?-Both, it has to be both.

Does that apply also to Mr Rocco Barbaro - both?- No, from the club it would have been."

Other witnesses gave evidence like that of the applicant and Giuseppe Barbaro. Mrs Barbaro said that she heard of her husband's arrest "over the- news". The applicant's brother Antonio said he also heard of the arrest "In the news". He gave the following evidence as to what occurred- when he went to the applicant's home,

"What about your brother's wife, did she ask you or did you talk about what your brother was arrested for?-Well, if she heard on the news why she ask me.

What did she hear on the news?-I did not ask what she heard.

You did not discuss with your sister in law what your brother had been arrested for?-No.

Nobody said that they were surprised?--Well, nobody was surprised."

Antonio Barbaro was asked as to what occurred after he had bailed out the applicant and when he left him in Mildura. Antonio Barbaro gave this evidence,

"So you knew he had to stay somewhere in that area?- But I never knew where he was going to stay.

And you did not ask him where he was going to stay?--Why I have to ask him where he is going to stay?

You did not know how much money he had on him?- No.

You did not ask him whether he needed any clothes?-No.

You did not ask for any messages to give his wife?-No.

Did you know how he was going to get to Euston each day to report?- No.

Did you find out at any stage what your brother was arrested for?-I told you before, I knew from the police when we arrived there.

When you went to see Mrs Barbaro, that is your brother's wife, with Mr Calabria, do you know whether she knew about the arrest then?-She probably knew.

Did you tell her for the first time?---Well, when I went there I just took it she knew on the news the way I had.

Did she tell you anything else about her husband's arrest?- No.

Did she tell you that the police had been to see her?- No."

Mr Pasquale Calabria, a second cousin and at the relevant time an employee at the Italo-Australian Club, said that he had never seen the applicant and Mr Pochi together at the club, that he knew that Mr Pochi had been arrested at Coleambally because "I read it in the paper", that he knew that Rocco Barbaro had been arrested in 1974 because "I read in the paper", and that "I do not go round listening to what people are talking about at the club."

In my view, much of the evidence does not stand happily with the fact that the applicant and Mrs Barbaro have a close association with their relatives. Thus, Rocco Barbaro and the two Francesco Barbaros visited the applicant in prison. In considering the evidence I give weight to the ethnic background, language difficulties and lack of education of the witnesses. Nevertheless, I am left with the clear impression that there was deliberate non-disclosure by a number of witnesses of discussions and associations which were relevant to the applicant's involvement with illegal drugs.

In Minister for Immigration and Ethnic Affairs v Pochi (unreported, delivered 31 July 1980) , the Federal Coiirt had to consider whether the following statement by Brennan J in his decision on the deportation review, namely,

"(i) that, '(w)hen an alien who is an established resident becomes liable to deportation under s12, the general rule must be that the conduct which is relied on to show that a deportation order is in the best interests of Australia must be proved, not merely suspected';"

was correct in law. The majority of the Court expressed the view, in substance, that natural justice is not accorded to an applicant if an order for deportation is based upon facts established by suspicion and speculation rather than proof on the balance of probabilities. It is not appropriate that I should discuss this decision of the Federal Court in respect of which leave to appeal to the High Court of Australia has been granted. But it is necessary, I think, that I make clear that the issues with which I am here confronted are not the issues to which the Federal Court turned its mind. That Court was considering the decision of Mr Justice Brennan. In a recent decision in Inyoman Suardana and Karen Suardana and Minister for Immigration and Ethnic Affairs (unreported, delivered 23 September 1980), I made the following comments respecting Mr Justice Brennan's decision :

"This case is different from the Pochi case. Perhaps I should just make one or two points about that case clear. The Federal Court was concerned with the state of the evidence at the conclusion of the hearing, and I do not think I need make any comment at all about what that court had to say. But I would say this about the decision of Mr. Justice Brennan. It proceeded upon a line that was somewhat different from that which is followed in most deportation reviews. A good deal more attention was given to matters such as past conduct, which ought to be susceptible of proof either on the balance of probabilities or pursuant to some other standard, than to matters such as prediction of recidivism and estimates of what is likely to happen in the future should the deportee stay in this country, matters in which, I think, judgment has to be exercised, matters which are not really susceptible of proof of the nature discussed by Mr. Justice Brennan.

Looking through his decision, one finds that Mr. Justice Brennan took the conviction to be conclusive evidence of the commission of the offence. I have not nor, I think, have other members of the Tribunal taken the view that a conviction should be so regarded. Rather, the view has been taken that a conviction is evidence, strong evidence but, nevertheless, only evidence of the offence. I have in at least one case, after hearing evidence, taken the view that the crime evidenced by the conviction was not, in fact, committed, or that it would be unsafe, at any rate, to rely upon it.

His Honour then went on to consider other conduct and, looking at the other conduct as to whether that had been established, took the view that it had to be established on the balance of probabilities. His Honour said that the general rule must be that the conduct which is relied upon to show that a deportation is in the best interests of Australia must be proved, not merely suspected. His Honour took the view that trading in marijuana was not proved on the balance of probabilities and that that being so, very simply, that it would not be right to deport the applicant who was an Australian resident of longstanding with a family in this country.

It is not clear to me that, when one comes to matters of estimates of character and predictions of the future, including recividism and likely behaviour in the future, one is concerned with the matters to which his Honour directed attention. His. Honour was really concerned with what had happened in the past - had this man been guilty of trading in marijuana or had he not? We do not have quite that problem here."

Similarly, I think the present review raises issues different from those which were given particular consideration by Mr Justice Brennan in Pochi's case. In the present review, confidential evidence from Detective Senior Constable Jenkins, which in Pochi's case was heard in camera by Mr Justice Brennan and from the hearing of which the applicant was excluded, was not received. Mr Justice Brennan heard that evidence and discussed it at some length in his decision. I would not wish to quarrel with a contention that to found a deportation order upon evidence of the type there adduced may lead to a failure to give natural justice to an applicant. It was a consideration of that nature which led me to reject its tender in the present review.

In the present review, it has been adequately proved that the applicant took an active part in a large-scale enterprise for the growing of marihuana. The sentence imposed upon him, which was greater than that imposed by the Court on Mr Pochi, reflects that. But, in addition, it has been proved that the applicant has a familial relationship with persons who were likely to have been involved in the entrepreneurial side of the venture. And facts have been established which give rise to a suggestion, at least, that the applicant may have had an association with the cannabis organisation extending beyond the events of the "Willra" plantation. That he was actively involved in the marihuana venture is beyond doubt. The extent of his involvement is unknown, save to him and to others involved in the venture. In my view, the circumstances call for an explanation by him of what the extent of his involvement was. The law accepts that, in certain cases, it is proper to draw adverse conclusions if the person who has a special source of knowledge does not disclose it. See e.g. the remarks of Young CJ, Lush and Brooking JJ in R. v King [1979] VicRp 43; 38 FLR 245 at p 254. In my view, one does not fail to give natural justice to Mr Barbaro by taking into account, as an adverse fact, that he has not given a truthful explanation of his involvement in the illegal venture or if one assesses risk to the community on the basis that he may have had a significantly greater involvement in cannabis growing and marketing than merely working as a labourer on "Willra" Station.

Mrs Elizabeth Barbaro, an Australian citizen, was born on 25 August 1954 at Plati in Calabria, Italy. She migrated to Australia at the age of 7 and both her parents, Mr and Mrs Pasquale Barbaro, are naturalised. She attended school in Canberra until she was 15. After working in a laundry she obtained a job as a sales assistant, a position which she continued after her marriage in July 1973 until December of that year. The Barbaros have four children, Domenico, Pasquale, Caterina and Francesca. Mrs Barbaro has experienced difficulties in caring for the children. This problem was most acute in 197 8 when all four children were under the age of five and the applicant was in prison.

Mrs Barbaro suffers from congenital astigmatism, a complaint which is shared by some of the children. Domenico has had recurring problems and hospitalisation due to his squint. During 1978, while Mrs Barbaro was in hospital having her last child, Domenico, in Mrs Barbaro's words, "got sick" and started vomiting, at which stage one of his eyes turned. He had two operations, one on each eye to correct the condition but there is no guarantee that his eye will not turn again. Dr AE Crawford, a paediatrician who has seen all the Barbaro children at various times, described Domenico as an over-active child who is a slow learner and below average and a "rather apprehensive little fellow". During 1978-79, an understandably difficult time for the family, Domenico exhibited aggressive tendencies. During that time he was referred to the Child and Family Guidance Clinic. Both Domenico and Pasquale tended to be over-active. A behavioural modification programme for the two boys was discussed but not implemented.

Presently, Domenico is enjoying good physical progress. However, when Dr Crawford saw Domenico in June 1980 he observed that:

"... again, he seemed to be (a) very difficult in his behaviour. He was pretty aggressive in my rooms, he was running around all over the place, and mother was trying to say things to him to tell him to stop but he just would not take any notice. And in fact she was getting quite agitated by the whole thing."

Pasquale, aged five, is also an over-active child. At two and a half years, Pasquale appeared to be having headaches, possibly migraines. Tests revealed no serious problem. Although he

appears to have grown out of his headaches, Mrs Barbaro said:

"He gets them occasionally when he is under stress or something. He does get them and he tends to scream in his sleep, you know."

Caterina was born on 7 January 1977. She has astigmatism and has had one operation in order to correct it. As a baby, she had problems with her feet but these were overcome with treatment. The evidence did not disclose any problems in respect of the youngest child, Francesca.

Due, I think, to the strain of looking after her children and to her husband's imprisonment, Mrs Barbaro has had psychiatric problems. Dr MR Tennant, a specialist in psychiatric medicine for over 25 years, in a report dated 26 October 1979, referred to Elizabeth Barbaro as "... a young woman who has a nervous disorder" and as being "... an inadequate dependent girl who reacts to stress with severe anxiety". In her evidence before the Tribunal, Dr Tennant said of Mrs Barbaro:

"She gets depressed, she also gets a variety of physical things like headaches, dizziness, palpitations which mean she has to lie down and cannot do her work. So she gets a lot of physical illness which is stress caused."

She said that Mrs Barbaro requires a great deal of help to minimally cope with her life situation and that, "She needs a great deal of support from close caring relations". In recent years Mrs Barbaro has seen Dr N Destro, a qualified psychiatrist. In a report dated 12 November 1979, Dr Destro said that the symptoms of which Mrs Barbaro complained and the signs she exhibited upon examination were consistent with pathologic "Reactive Depression". Dr Destro considered that Mrs Barbaro was experiencing feelings of rejection and of being "'a victim of circumstances' beyond her control", a situation which resulted in repressed anger and which, if it continued over a prolonged period would be emotionally destructive and would lead to Mrs Barbaro being "chronically depressed". Dr Destro is of the view that Mrs Barbaro would be unable to cope if she were separated from her husband or from the support she has in Canberra from her parents, friends and health-care workers.

In evidence, Mrs Barbaro said that, although she loved her husband and did not wish to be separated from him, she would not return to Italy if he were deported. That view is shared by Mr Barbaro:

"It is not because I do not love my wife or my children, but because if I take my children there, they have no future. They have been brought up here in this country. My wife comes here when she was young, and she was brought up here, went to school and everything here, and I feel if I take my children there, probably I will feel very embarrassed myself when I see that I cannot give what my children want."

I therefore proceed upon the footing that Mr Barbaro's deportation will separate him from his wife and children. It is difficult to determine what will be the effect upon Mrs Barbaro and the children if this separation occurs. It is clear that the family has had many medical and psychiatric problems and that it is for the good of Mrs Barbaro and the children that the applicant remain in this country. Mrs Barbaro and the children have improved since the applicant's release from gaol as a result of his company and support. Probably, Mrs Barbaro's problems arose from having young children who were hyper-active and who had medical problems. Probably, the strains upon her are lessening as the children grow older. Indeed, a neighbour, Mrs Helen Yapp, said in evidence,

"...I think she has been tremendously strong, especially with coping with the children and keeping the house going..."

Nevertheless, it must be recognised that, whether due to the pressures upon her or to an inherent weakness, Mrs Barbaro has demonstrated psychiatric problems and, therefore, that her husband's deportation could have a seriously detrimental effect upon her health. And the children also will suffer by the separation.

It should also be remembered that Mr Barbaro is a member of a large family, most of whom are Australian citizens. His parents, who are aged and not well, seven of his brothers and sisters and many nephews and nieces live in Australia. Mrs Barbaro's family and her closest relatives are in Australia. The applicant's deportation would be a considerable loss to them all, particularly to his parents.

Two statements of policy are relevant in the present review. The first is the statement which was forwarded to the President of this Tribunal by The Honourable M.J.R. Mackellar, MP, then Minister of State for Immigration and Ethnic Affairs, by letter dated 28 March 1978. The policy contained in that statement and the letter has been the subject of consideration by this Tribunal on many occasions. In January 1980, The Honourable IM Macphee, MP, Minister of State for Immigration and Ethnic Affairs, issued a revised statement of policy, which was forwarded to the Registrar of this Tribunal under cover of a letter dated 31 January 1980 and which has since been tabled in Parliament. In so far as they consider the deportation of criminals other than drug offenders, no essential difference can be perceived between the two statements of policy. The essence of both policies is that the facts of each particular case are to be looked at upon their own merits and that all facts and matters relevant to a particular case are to be considered. The 1978 statement said that the basic question was whether it was in the best interests of the Commonwealth of Australia that the person should be deported. The 1980 statement expresses the issue as being whether in all the circumstances of the particular case it is in the public interest that the person be deported. I take both terms, "the best interests of the Commonwealth of Australia" and "the public interest" to comprehend humanitarian factors affecting the criminal and interested persons. It is in the public interest and in the best interests of Australia that due weight be given to the circumstances and interests of individual persons in Australia.

Neither policy statement distinguishes between the position of a prohibited immigrant, that of a person in Australia under a temporary permit, that of an immigrant who is a permanent resident or that of a person who has become fully absorbed into the Australian community so as no longer to hold the character of "immigrant" but who, nevertheless, is an alien. These different states are, in my view, relevant to the exercise of a discretion under s12 and s13 of the Migration Act and they are examples of factors which being relevant should be taken into account notwithstanding that they do not find expression or are not clearly expressed in either policy statement. In Re Sergi and Minister for Immigration and Ethnic Affairs, 2 ALD 224, when considering a case to which the earlier policy statement was relevant, I explained the significance of the distinction between, on the one hand, an immigrant and, on the other_,_ an alien, being a person who, while not a citizen, has become fully absorbed into the Australian community. I explained that more weighty reasons are required to expel from the community a person who has become fully a member of the community than are required to exclude from membership of the community an immigrant who has not yet been accepted as a full member of the community. I need not repeat the comments made in that case. The same considerations are, in my view, relevant to the consideration of a person to whom the 1980 policy applies, notwithstanding that the consideration does not find express mention in that statement. Mr Purnell, counsel for the Minister, conceded to me, as have other persons who have represented the Minister, that material factors including the factor of the criminal's status in Australia should be taken into account though the factor does not find express mention in the statement. And, indeed, read widely, the 1980 statement does require all relevant matters to be taken into account whether or not they are expressly mentioned.

When touching upon the deportation of drug offenders, the 1980 policy statement deals with the matter in terms different from those which appeared in the 1978 statement. Indeed, the 1978 statement made no express reference to drug offenders, although there was a reference to them in the letter accompanying that statement. The 1980 statement reads:

"8. Where a person was convicted of an offence which indicated that the person had been involved in the production, importation, distribution or trafficking of illicit drugs, it is considered that the interests of the Australian community in their deportation are such that in almost all cases they heavily outweigh the considerations arising from the circumstances of the offender and the circumstances of people whose interests are affected by deportation.

9. Because of the cost to the Australian community in human terms, of illicit drug abuse, it is considered that the interests of the community in removing persons who are involved in the drug problem in the ways referred to in this statement, and in deterring other persons who might be minded to commit similar offences, must almost always outweigh the compassionate considerations which might otherwise have prevailed.

10. Accordingly, in the absence of compelling circumstances, people who render themselves liable to deportation because of convictions for involvement in the production, importation, distribution or trafficking of illicit drugs have been and will continue to be deported.

11. It is not possible to define exhaustively what will be regarded as compelling circumstances. All relevant factors are taken into account, but the weight given to drug offences of the kind referred to in this statement is such that the considerations in favour of deportation must almost always outweigh the considerations against deportation. For example, consistent with the approach of previous Ministers, it is Government policy that the following factors are taken into account, but need not be regarded as compelling, either singly or in combination.

(1)

the presence in Australia of the offender's spouse or children, whether Australian or not;

(2)

the fact that the offender and/or persons whose interests are affected by deportation had been resident in Australia for a lengthy period of time;

(3)

the ownership of assets in Australia;

(4)

the possibility of financial loss consequent upon deportation, as a result of the offender's financial commitments in Australia;

(5)

adverse conditions in the country to which the offender would return;

(6)

the fact that the offender who imported drugs into Australia might be liable to punishment for exporting the drugs from the country to which he or she would be returned;

(7)

the fact that it was the offender's first conviction;

(8)

the fact that it might be thought there is an apparently low risk of the offender re-offending within Australia;

(9)

the fact that deporatation might be thought to impair the prospects for the rehabilitation of the offender.

Without limiting the circumstances which might be regarded as compelling, the following factors are examples:

(1)

the fact that the offender is entitled to the protection of the Convention and/or Protocol relating to the Status of Refugees, to which Australia is a signatory (although Article 33 of the Convention excludes from the protection of the Convention a person who, having been convicted of a particularly serious crime constitutes a danger to teh Australian community);

(2)

the grave illness of the offender or a person who could reasonably be expected to accompany him or her which could not be adequately treated in the country to which the offender would return;

(3)

the existence of a genuine and serious threat to the life of the offender or a member of his or her immediate family.

In considering the nature of the offence, regard is had to the nature and quantity of the illicit drugs involved, and to weather it appears that the offence was part of a pattern of similar offences. Whether or not the individual offender was aware of the other offences or of any link between the offences, it is desirable in the public interest to deter persons from participating in commerce in illicit drugs."

It was submitted to me by Mr Purnell that, because of that Government policy, the interests of the community in removing persons who are involved in the drug problem must almost always outweigh the compassionate considerations which might otherwise prevail and that, in the absence of compelling circumstances, persons who have been convicted for involvement in the production, importation, distribution or trafficking of illicit drugs should be deported. However, although the 1980 statement contains an explicit statement to that effect, it would, I think, be wrong to conclude that the issue as to the deportation of a criminal is to be resolved merely by reference to that statement. Section 12 of the Migration Act confers a discretion to deport a person who has been convicted of a crime of a certain character That section sets down the law, the legislative framework within which this review is to be considered. In reviewing a ministerial decision made under those sections, Government policy is a relevant matter to be taken into account but the Tribunal may not abbrogate its duty to arrive at the correct or preferable decision simply by applying Government policy to the facts of the case. See Drake v Minister for Immigration and Ethnic Affairs 2 ALD 60, per Bowen CJ and Deane J at p.68. In this review, Mr Purnell placed weight upon the statement of practice enunciated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] AATA 179; 2 ALD 634 at p.645 that,

"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny."

That statement of practice was enunciated after a most careful and valuable examination of the reasons why weight should be given to Government policy. It is clear from a careful reading of his Honour's decision that his Honour was not expressing the view that the Tribunal should exercise the function of applying Government policy rather than the function of arriving at the correct or preferable decision having regard to the legislative authority to be exercised. Rather, his Honour made clear at p.643 that,

"If the Tribunal applies ministerial policy, it is because of the assistance which the policy can furnish in arriving at the preferable decision in the circumstances of the case as they appear to the Tribunal."

His Honour's reasons did not seek to abbrogate that statement but rather to consider and express the many reasons why Government policy may be a weighty and influential factor to be taken into account.

The conferring of a discretion by s12 and s13 of the Migration Act and the conferring by Part XXII of the Schedule to the Administrative Appeals Tribunal Act of a power to review the exercise of that discretion, are legislative provisions which give effect to a concept recognised in international law for a long time. A person who is in a country of which he is not a citizen may nevertheless establish a position, acquire assets, acquire familial and personal relationships, of which it would be unjust or harsh to deprive him by the exercise of arbitrary authority. Many writings recognise that a person who is lawfully in a country though not its citizen should not be expelled without due weight being given to his position and to the hardship which would be imposed upon him and others by his expulsion from the community. See eg. International Law by DP O'Connell, 2nd Ed, pp 706-710. This concept finds expression in the Human Rights Convention, executed on behalf of the Australian Government and which is set out in the Schedule to the Human Rights Commission Bill 1979. Article 13 of that Convention provides:

"An alien lawfully in the territory of a State Party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority."

The process of review provided by the Administrative Appeals Tribunal satisfies the provisions of that Article. Thus, the wide terms of the discretion conferred by s12 of the Migration Act and the legislative grant to this Tribunal of a power of review both recognise by inference that hardship may be caused by deportation and that it is just and proper that due weight be given to the circumstances of the person whose deportation is being considered and of the other persons who are interested in that deportation.

The giving of due weight to the humanitarian issues involved in a decision is, therefore, not to be overborne by a statement of Government policy. It is the duty of this Tribunal to take those factors into account and to give them due weight. Moreover, in my view, the policy statement of 1980 does not seek to overbear them. Rather, the statement that, "...in the absence of compelling circumstances, people who render themselves liable to deportation because of convictions for involvement in the production, importation, distribution or trafficking of illicit drugs have been and will continue to be deported", reflects a policy on the part of the Government that due weight be given to the harm which such activity causes to this country and to the desirability of deterring it.

Before me, Mr Purnell contended that the issue in this review should be resolved not by the weighing up of relevant factors, some favouring deportation, others favouring the contrary, but, rather, by reference to a principle of "choice". Mr Purnell submitted that the Minister was entitled to say, "We choose not to have this sort of person as a member of the Australian community". Mr Purnell submitted that, "an alien, once he puts himself judicially within section 12, has no rights ...", that, once convicted, the alien loses "any rights to remain in Australia". The submission picked up the statement in paragraph 2 of the 1980 policy statement that,

"In sections 12 and 13 of the Migration Act 1958, the Parliament has prescribed circumstances where the Minister for Immigration and Ethnic Affairs is given responsibility for determining whether the privilege of being permitted to remain in Australia should be withdrawn."

However, although an element of "choice" may be relevant to a determination of the case of an immigrant, that is to say, a person who has not become fully absorbed into the Australian community, particularly one who remains in Australia without a permit or pursuant to a permit limited in time (see Re Istandar and Acting Minister for Immigration and Ethnic Affairs, 2 ALN 524 at p.525), that concept has little part to play in a consideration of the case of an alien who has become fully absorbed into the Australian community and who remains in Australia pursuant to a permit unlimited in time. Such a person has a right to remain in Australia unless an order for his deportation is made under ss12, 13 or 14 of the Migration Act. His stay in Australia is not a matter of privilege. He is and is entitled to be treated as a full member of the Australian community subject only to such limitations as are imposed upon aliens. The question of his deportation under s12 is to be resolved not by reference to the Minister's or the Tribunal's "choice" but by a weighing up of all relevant factors (including Government policy), some of which will favour deportation and some of which will go the other way.

When deterrence of other persons looms large among the factors supporting the making of an order for deportation, the question of punishment or double punishment arises. In Sergi's case, at p.231, I said,

"If an order for deportation were made in a case where the sole or substantial factor justifying deportation was the deterrence of others from committing a crime, the making of the order of deportation would serve as punishment of the criminal. The additional detriment of deportation would be imposed on him, not because he was himself a danger to the community or a person whose continued presence in Australia was undesirable, but as a detriment or punishment consequent upon the commission of the crime, which detriment or punishment would serve as a deterrent to others from so acting."

To the same effect was Smithers J in Gungor and Minister for Immigration and Ethnic Affairs (unreported, delivered 30 May 1980) where his Honour, after concluding that "... the risk that the applicant will offend again is very small" said,

"In these circumstances deportation of the applicant would constitute further punishment administered, either for its own sake, or as a deterrent to other persons. But punishment according to law is intended to be the factor appropriate for punishment and for deterrence of the offender from repetition of his offence. It is intended also to deter other persons from like offences. Such are the functions of the criminal law. That is the law applicable equally to aliens, immigrants and to Australians. The criminal law is the expression of Parliament as to what, in its view, is requisite for those purposes with respect to all citizens. These functions are not, primarily at any rate, the functions of s12 of the Migration Act. That section is designed primarily to protect the Australian community from the presence of particular offending aliens and not for imposing extra punishment on an offender or by so doing deterring other unnaturalized aliens from particular offences.

To use the powers conferred by the Migration Act for the purposes of punishment and deterrence is in substance to discriminate against immigrants and aliens by subjecting them to an additional sanction not applicable to other persons for breaches of the criminal law."

Similarly, in Minister for Immigration v Pochi, cited above, Deane J referred to,

"The affinity between an order of deportation of an established resident consequent upon his conviction of a crime and the imposition of punishment for a criminal offence..."

The Minister contends that a deportation order is not imposed by way of punishment. One of the grounds in the Notice of Appeal in Gungor's case is that "The making of a deportation order is not punishment". But little purpose is served by characterising deportation as being not a punishment without recognising that, if the major factor which moves the making of the deportation order is the desire to deter persons other than the convicted person from committing crimes of a like nature, then the making of an order may serve as an additional punishment because it is a detriment imposed as a consequence of the offence and is imposed with a view to deterring other persons from committing like offences. When a deportation order is made principally for the purpose of deterrence, its affinity with punishment consequent upon a conviction becomes a close one. That is a relevant matter to be taken into account.

I do not wish to say, however, that a deportation order should never be made in a case where it may serve as an additional punishment. Deterrence is, in my view, a relevant factor to be taken into account in the making of a deportation order and, in a case where the criminal is a member of an ethnic group which has been particularly involved in a particular type of crime, it may be proper to make a deportation order though to do so may have or appear to have a punitive effect upon the individual concerned. The important thing is to keep in mind that deportation may have a punitive object and effect when deterrence of other persons looms large among the factors supporting the making of the order.

I have spent time on the above issues not so much because they are crucial in the present instance but because this review has followed upon the issue and presentation to Parliament of the Minister's policy of January 1980 and upon Brennan J's decisions in Re Pochi and Re Drake (No.2). It seemed to me to be desirable to make clear to what extent the decision in this review was influenced by those two cases and by the new statement of policy.