Little v Commonwealth [1947] HCA 24

Little v Commonwealth [1947] HCA 24 - HCA 1947 case summary — Zoe

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shall be subject to four restrictions, the more material of which are that he should reside outside such area as the military authorities might from time to time determine and that he should submit himself to internment in the event of a breach of any of the restric- tions contained in the order. Having received this order or a copy of it from the Minister, the General Staff Officer (Intelligence) Head- quarters Queensland Lines of Communication Area, on 23rd May 1942, transmitted a copy of it to the Commissioner of Police, Brisbane with instructions to serve the plaintiff with it, giving him a copy and also a copy of regs, 25 and 26, a thing required by reg. 26 (6). The Commissioner was also instructed to request the plaintiff to make immediate preparations to remove himself to reside in a district situated outside an area 300 miles from the sea coast of Australia and below the twenty-seventh parallel. When he notified the police of his proposed place of residence, he was also to be required to report to the police nearest thereto once a week on Saturday. The plaintiff was to be told, too, that his removal must be prior to any impending appeal and that he would not be allowed to return to any district inside the 300 miles radius until the result of the appeal was known. The Commissioner sent 'on these instructions to the Inspector at Rockhampton and as a consequence, on 28th May 1942, a detective of police served copies of the order and of the two regulations upon the plaintiff in Rock- hampton and acquainted him with the instructions of Military Intelligence. There is a dispute as to whether the letter of instrue- tions to the Commissioner was actually read over to the plaintiff, but, if it matters, I think the higher probability is that the detective did read to him the more material parts of that communication. The instructions it contained represented a general direction which had been given by the General Officer Commanding the Northern Command for the purpose of restriction orders, such as that made in the plaintiff's ease by the Minister. I think that the communi- cation to the police may be taken to contain a " determination " by the "military authorities" of the area outside of which the plaintiff was to reside. But I shall not interrupt my statement 'of the facts to examine, at this point, the validity under regs. 25 and 26 of the resulting restrictions which it had thus been sought to impose upon the plaintiff. The plaintiff signed a receipt acknow- ledging that he had received from the Intelligence Section Northern Command a copy of a notice to a person in respect of whom an order had been made under reg. 26. The detective, whose name is Raetz, gave evidence, and he and the plaintiff are not in agreement

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as to what was said. The events took place five years ago and it - is not surprising that in this and other matters attempted recon- - structions of facts and conversations should vary. I think that the substance of what was said at this point was as follows : - The plaintiff stated his intention of going to Townshend Island to prepare _ for his departure south of the twenty-seventh parallel, which not - without difficulty they ascertained to run slightly north of Brisbane. The detective said he must not do so but must make his preparation from Rockhampton. The plaintiff expressed resentment at his treatment and probably stated his intention of taking every step to clear the matter up. I think that he did tell the detective that he would inform the police when he was leaving for the island ont I believe that he did so inform them probably about 2nd or 3rd _ June. I think he said on that occasion that he would return at - once and go south for the purpose of clearing himself. The plaintiff - went to Townshend Island about 4th June and, after remaining - there perhaps two or three days, he attempted to return to Yeppoon in his launch, but was compelled to go back owing to weather and the insufficient endurance of his craft. On the morning of Monday 8th June Detective Raetz and two constables arrived at the island. They had been sent by the Inspector of Police and Raetz had been instructed to bring the plaintiff back to Rockhampton and he had - been armed with an order to enter and search given by the Inspector apparently under reg. 79 (2) of the National Security (General) Regulations. According to the plaintiff's account, he was at once placed under arrest and required to accompany the officers of police - back to Rockhampton. According to Raetz, he was not then taken _ into custody but was requested to return to Rockhampton, a request i with which he voluntarily agreed to comply. Until it was amended at the opening of the trial, the Commonwealth's defence stated that _ the plaintiff was arrested at Townshend Island by a member of the _ Queensland Police Force, though it gave the date as 10th June. - The report to the Attorney-General pursuant to s. 13 (2) of the - National Security Act was neither produced nor tendered. The - officers bore arms and during the night took turns in mounting some _ sort of guard. I feel confident that Raetz' orders were to bring the FE plaintiff back with him. In all these circumstances and notwith- 'a standing the explanations suggested of some of them, I find that - Raetz did give the plaintiff to understand that he was under con- straint and, although in the conditions prevailing on the island and upon the return journey no forcible or actual physical confine- ment or restraint was considered necessary, I think that, having - force at his command, by what he said and did, Raetz sufficiently

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case, a party would be acting legally, and therefore would not - require protection. The words, therefore, must be qualified by the decisions ; and then the meaning will be, that a party, to be entitled to protection, must bona fide and reasonably believe himself to be authorized by the Act." y But a further difficulty arose. Suppose the wrongdoing officers ' knew nothing of the provisions or even the existence of the statute, - The answer was given in Read v. Coker (1) where Jervis C.J. said - - - "Tt has been further contended, that the defendant could not hay believed that he was acting in the execution of the statutes when - he did the acts complained of, inasmuch as it did not appear that - he had any knowledge of their existence. That point is, I believe, now made for the first time ; nor do I think it properly arises here, Tf, as the jury have found, the defendant bona fide believed he was - acting in the assertion of a legal right, he was justified by the law, although he did not precisely know what that law was." (See, too, Danvers v. Morgan (2) ). ee The logical difficulty which might be felt in this rule was obviated by the next step, which was to formulate or adopt a test of the - application of protective provisions of the kind under consideration. - The test was whether the defendant honestly believed in the existence of a state of facts which, if it had existed, would have afforded a 7 justification under the statute (Roberts v. Orchard (3)). It is, course, obvious that if the title of the wrongdoer to protection - depends upon his belief as to a state of facts which would make his i act lawful, then what he knew or thought about statutory powers and authorities is immaterial. Unfortunately, however, this test - left out of account a very common case, namely that in which there had been no misapprehension about the facts but a mistake as to the legal results ensuing or as to the extent of the defendant's - powers or authorities or the course in which the law required that he should proceed in their exercise. There are many examples where it has been held that defendants who have thus incurred a tortious liability have acted in pursuance or execution of a statute and so are covered by provisions limiting, qualifying or barring the - right of action. An old instance is that of one justice doing what - only two justices were authorized to do (Weller v. Toke (4) ). Other - examples are to be found in the case of a constable forcing an - outer door to levy a distress for a church rate (Theobald y. Crich- - more (5)), a constable entering a house without a search warrant (ay (1858) 1 BY C.B. 850, at p. 862 (4) (1808) 9 East 364 [103 E.R. 611].

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Judgment (130 paragraphs)