Ferrando v Pearce [1918] HCA 47

Ferrando v Pearce [1918] HCA 47 - HCA 1918 case summary — Zoe

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clear. But it is equally clear that a person cannot well be deported in a ship bound nowhere. The power is exhausted when the alien is placed outside the territorial limits of the deporting country - in this instance, Australia. Did the Minister contemplate or has he attempted or threatened to de anything beyond that? Suppose that by the Minister's authority the plaintiff is placed on board a vessel bound for Italy. It is not for the alien to choose his ship, and there is no authority other than the Minister or some power above him to make the choice. The choice is reposed in the Minister until the regulation is altered or expires. There is nothing to prevent him from choosing a ship bound for China, so far as the execution of his power of deportation is concerned. If he chooses a ship bound for Italy, that cannot possibly be said to make the deporta- tion an abuse of his power or in any sense an illegality. The case is strikingly similar to that decided in England, first by the Court of King's Bench, and afterwards by the Court of Appeal, last year. See R. v. Home Secretary; Ex parte Duke of Chéteau Thierry (1). There the Duke asked for a writ of certiorari for the removal into the King's Bench Division of an order for his deportation so that the order might be quashed. The deportation order was entirely similar to that made in the present case, save that it was for deportation from the United Kingdom. As in Mr. Pearce's order, no destination was expressed or suggested. But the Secretary of State admitted through his counsel that the order was made with the intention and for the purpose of sending the applicant to France, and thereby placing him within the power of the French military authorities. The application rested on the grounds, inter alia, that there were no facts or materials to justify the making of the order, and that there was no power to order his expulsion to France. Although the deportation order was silent as to destination, the King's Bench Division (2), Lord Reading presiding, arrived at the conclusion that there was no power to make it, and the writ was granted. The Secretary of State appealed (3), and his appeal was allowed. The Court of Appeal,

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Government claims and intends to exercise over him, by virtue of the Act and Order, an authority not thereby conferred. The Government claim not merely a right to deport the alien but to select the country or place to which he is to be deported. The Divisional Court held that there was not any power under the Statute or in the regulations to order the deportation of an alien to any particular country ; that they must look behind the order, and if the object and intention of the Executive in making the order was to deport the alien to a particular foreign country they must treat this matter as if the order did in effect state that the alien was to be deported to France. So regarding it, the Court made absolute the rule for a certiorari to quash it. I am unable to follow this reasoning. If it were intended to do something illegal under a valid order, that would be good ground for restraining and prevent- ing the illegal act, but not for quashing a valid order. A Secretary of State is not required to justify in a Court of law his reasons for

making a deportation order in the case of an alien. In the event 'of it being disputed that the subject of a deportation order is an alien, the matter must be determined by the Court, and unless it be proved that the person is an alien the order must be quashed as made without jurisdiction; but I am not aware of any other ground upon which such an order can be quashed." He went on to express the opinion that clause (c) (here clause (b) ) does not extend to authorize an order for the deportation to any particular place, but merely to provide for the deportation from the country concerned, and that the form of order adopted in the case he was then deciding (as in the present case) was the proper form of order
namely, that the alien "shall be deported from the United Kingdom" (here, from the Commonwealth). He expressed the opinion that clauses 1 and 2 of the article as to deportation are independent of each other, and that the Minister may immediately on making a deportation order cause the alien to be detained and placed on board a ship, and detained on board that ship until the ship finally leaves the United Kingdom, when his right to detain the alien any longer ceases. It was essential, he said, in order to (1) (1917) 1 K.B., at p. 929.

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thus selecting the ship the destination of the alien might be deter mined. Finally, the Lord Justice said (1) : - '* The conclusion at which I arrive is that, although the Executive Government has no power to order a deported alien to go to any particular place, yet by the authority given it to detain the alien and place him on board - a ship (which I construe as meaning a ship which the Government select) and detain him there until the ship finally leaves the United - Kingdom, the result may be that the alien will have to disembark in - the country to which that ship shall directly sail. After the ship finally leaves the United Kingdom the Government cannot any longer detain him, but in most cases there would be practical - difficulty in the alien leaving the ship before she makes the port to which she is bound." The other Lords Justices agreed, for reasons which, in no instance, conflict with or weaken those which 1 _ have quoted. While admittedly there would be good ground for re- straining and preventing an illegal act intended to be done under a valid order, yet it is abundantly clear that no member of the Court 7 of Appeal considered that there was anything illegal in that which the Secretary of State avowedly intended to do. And in this case the avowed intention of the Minister for Defence is to all intents and purposes of an identical nature. The concluding words of the - judgment of Swinfen Bady 1.3. (1) decisively show that the Court of Appeal perceived no illegality in the intended action. Tt is well to draw attention to the fact that, in his affidavit depos- ing that the deportation order was issued by him under the powers given him by the Aliens Restriction Order 1915, the Minister for Defence adds that in his opinion the order was necessary and expedient with a view to the public safety and the defence of the Commonwealth. The addition was scarcely relevant. The deter- mination whether a "matter" appears necessary or expedient to provide for with a view to the public safety and the defence of the Commonwealth is, as sec. 5 of the Act prescribes, vested in the Governor-General, of course in Council. But there is a more impor- tant consideration still. Parliament in sec. 5 has itself particularized, (1) (1917) 1 K.B., at p. 931.

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injunction restraining the defendants from illegal acts being done and threatened to be done by them acting under the order; (7) on the materials before the Court it was clear that the Italian Consul was threatening to send - by force, if necessary - and was procuring and assisting the Minister to compulsorily send the plaintiff out of Australia to Italy as a conscript for military service in that country ; that such acts were illegal, and ought to be restrained by the Court. In support of the claim for the injunction on grounds 3 to 7, Sir Edward Mitchell relied on the facts proved on the application, some of which are referred to later on. It was also contended : - (1) That the plaintiff is not medically fit for military service, active or sedentary. There is no doubt on the evidence that he is not fit for active military service; as _ to whether he is fit for sedentary service, the medical evidence is in conflict. (2) That the plaintiff is not liable to compulsory military service under Italian law. These are matters which are irrelevant if the Minister has the authority he claims, and it is for him, not the Court, to decide whether they will affect him in making the order if he has the authority. _ The Minister, through counsel for the Commonwealth, takes up "the position that an Order in Council (Aliens Restriction Order 1915), passed under the authority of the War Precautions Act 1914-1916, authorizes him to deport aliens for any reason he thinks fit, practically at his whim, or on the request of the Italian Government, and that this Court is not justified in interfering. Under the claim made, the Minister could deport an alien because he is a unionist, a pacifist, an anti-conscriptionist, an American or a Frenchman, irrespective of any question whether it appears to the Executive Council or to him to be necessary or expedient for the safety of the public or the defence of the Commonwealth. If a change of Government takes place while the regulation is in force, another Minister could, at his whim, deport an alien who is a non-unionist, loyalist, advocate of recruiting, conscriptionist, &e., irrespective of any question whether in the opinion of the Executive Council or even in his own opinion it is expedient or necessary for the safety of the public or the defence of the Commonwealth.

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way also would lie public unrest and public peril. On all there is no disputing." It was not contended that the Constitution did not allow Parlia- ment under a War Precautions Act in times of war to confer on the Executive arbitrary powers to interfere with the liberty of th subject and private rights if necessary or expedient for public safe or defence, or that it did not allow the Executive to confer powers on Ministers and other persons to do so - on conditions to be laid down by the Executive - within the authority vested in it by Par- liament. The safety of the public as a whole and the defence of the Commonwealth are more important than the rights of any citiz All the Court is justified in doing on an application questioning the legality of any action taken is to see that any interference complained of is authorized by law. It was conceded : - (1) That the Commonwealth Parliament has absolute power under the Constitution (sec. 51 (xrx.)) to pass laws for the deportation of aliens from the Commonwealth, con- ditionally or unconditionally, and for any reason it thinks fit That power has never been questioned since the decision of this Court in Robtelmes v. Brenan (1). Tt is contended that Parliament has not exercised that power. (2) That the Commonwealth Parlia~ ment could, under its power to make Jaws with respect, to naval and military defence, declare that all aliens who would not yolun-_ tarily go to their native countries to fight for their country, or the Allies, shall be subject to conscription and deportation from Aus- tralia, and the conditions under which they could be deported for the public safety or defence of the Commonwealth. The fact that the Australian people have, I regret to say, declared against con- scription for military service out of the Commonwealth does not affect the power given by the Constitution to the Commonwealth Parliament. It might prevent Parliament from intentionally exe 4 cising the power. If my colleagues are right, the power has indirectly been given to the Minister through the Governor-General by an Order in Council made under sec. 5 of the War Precautions Act 1914-1916. (3) That the Governor-General, if it appeared to him necessary or expedient with a view to the public safety and the defence of the Com- monwealth to do so, could under sec. 5 have made an Order in Council (1) 4 G.L.R., 395.

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conscription in Australia and transportation to Italy of the plaintiff, as a conscript, in pursuance of the agreement between the British and Italian Governments; and that the Italian Consul intended to use force, if necessary, in the Commonwealth to compel conscrip- tion in the Commonwealth and transportation to Italy. On 23rd _ April 1918 the Italian Consul issued and served on the plaintiff the following notice (omitting formal parts) : - ' Royal Italian Consul- ate. - Call to Arms and Repatriation of Conscripts Resident in Australia. - The Italian Consul for Australasia orders the conscript Giovanni Ferrando to present himself on 27th inst., at 10 a.m., with his luggage, not exceeding six cubic feet, at the Drill Hall, Sturt Street, St. Kilda Road, South Melbourne, for embarkation and destination Italy. - The Royal Italian Consul: E. Eles. - Melbourne, 23rd April 1918." On 27th April 1918 a further communication was sent by the Consul to the plaintiff, which contained the follow- ing notice and threat : - ' I make known to you that as you yester- day refused to submit yourself to a further medical examination as I proposed to you, you are obliged to present yourself this day at 10 o'clock, at the Drill Hall, Sturt Street, Melbourne, according to the order I gave you by registered post on 23rd inst. I now inform you that you are not in a condition prescribed by law in force to entitle you to temporary exemption, consequently you are obliged to present yourself at the Broadmeadows Camp, where are collected the military reservists resident in Victoria and where you will await pending embarkation to Italy. I make it known to you that if you are not at the said Camp by Tuesday the 30th inst., at 10 a.m., I will be obliged to order against you forcible measures in obedience to the orders received at this office from Rome. - E. Eles, Italian Consul." On 29th April 1918, the day before the time allowed (by the above notice) for the plaintiff to be at the Camp, the order of the Minister in question was issued. That the order was issued to assist the Italian Government in enforcing compliance with the notice is apparent from the letter of the Minister of 15th June, explaining to the solicitor for the plaintiff his reason for deciding to deport the plaintiff. The following is a copy of the letter (omitting formal parts) : - '* With reference to your letter of 30th April 1918 relative

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at the Statute, I come to the conclusion that there is no power under the Statute or the Order, which can only derive its authority from the Statute, to order the deportation of an alien to any par ticular country. There is undoubtedly power to order the deporta- tion of an alien from this country ; but that is very different from saying that there is power to say to which country the alien s be deported. In my opinion this case must be decided upon the view we take as to the power to order deportation to a particular country notwithstanding that in form this order does not mentio! any country. In form the order is correct, but this Court must look behind the mere form, and, when there is no doubt that the inten- tion is to deport the alien to a particular country, though the form of the order does not state that that is the object and intention of the Executive in making the order, we must treat it as if the orde did in effect state that the alien was to be deported to France. The Attorney-General has admitted that it is the object and inten- tion of the Executive to send this man to France and that that is the only reason why this order was made by the Secretary of State. It is not suggested that he was an unfit person to remain in this country for any other reason than that he was required to attend in France, where he is what is called an imsoumis who has not sub- mitted himself to the jurisdiction of the military authorities thoug he has been called upon to do so. Therefore, brushing aside technicalities, I have come to the conclusion that this order cannot: stand. I do not think that under art. 12 of the Order Parliament has givento the Secretary of State the power to make an order which would forcibly remove an alien from this country to another country to which he does not wish to go. The alien must leave the country, and if he does not leave the country I can understand that the Executive may have the power to remove him notwithstanding that it may be to a country to which he does not wish to go; but

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order for deportation is made, and he may go to any country he

pleases. Parliament can say that the Secretary of State shall have the extended power, but it is for Parliament to say so, and not for ; 'us sitting as a Court of Justice interpreting legislation. Upon that ground, and upon that ground only, I come to the conclusion that % we must deal with the substance of this case, and that, therefore, this order must be quashed. We must not, particularly when dealing with personal liberty, strain the language, and must be careful only to interpret the law reasonably and naturally according to the language used. Applying that rule of construction, I arrive at the conclusion that there was no power to make this order, and that the rule must be made absolute." For the purpose of deciding the appeal, all that the Appeal Court did was to decide that the order for deportation ought not to be quashed on a writ of certiorari. It agreed that an order on the face of it for deportation to France would have been illegal, but, at the request of the Attorney-General, _ expressed the opinion that under the Aliens Restriction Act in force in England and the orders lawfully issued under it, the order, being in form only an order for deportation from England, was a valid _ one even if it were intended to be used to send the alien to a particular country. _ This Court, although not bound by the decisions or the opinions _ expressed by the learned Judges of the Court of Appeal, even if the facts proved were the same in each case, would only disagree with them if forced by the view it takes of the law. In this case the Acts and Orders under which the order for deportation was issued differ, and the facts admitted or proved in the cases differ. In that case the Court held that the Divisional Court was wrong in _ treating the matter as if the order did in effect state that the alien was to be deported to France. In this case I think the Court is justified in reading with the order the letters sent by the Minister, in which it is stated that the intended deportation was a deportation _ to undergo military service in Italy and that the alien must proceed to Italy to undergo that service. On the materials before the Court in this case, assuming I am tight in reading with the order the letters referred to, I feel bound

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Judgment (238 paragraphs)