High Court of Australia
Pas C.L.R.] OF AUSTRALIA. ep
(HIGH COURT OF AUSTRALIA.]
FERRANDO . ; 3 2 : : , ; PLAINTIFF 3
AGAINST
PEARCE AND ANOTHER 5 : . DEFENDANTS.
Alien—Deportation—Effect of Order in Council—Validity of order of Minister— Agreement to assist foreign State—Oallihg up conscripts—War Precautions Act 1914-1916 (No. 10 of 1914—No. 3 of 1916), sec. 5—Aliens Restriction Order 1915 (Orders in Council of 27th May 1915 and 1st March 1916), par. 2s— The Constitution (63 & 64 Vict. c. 12), sec. 51 (v1.), (X1X.).
Sec. 5 of the War Precautions Act 1914-1916 provides that " the Governor- General may by order published in the Gazette make provision for any matters which appear necessary or expedient with a view to the public safety and the defence of the Commonwealth, and in particular . . . (b) for deporting aliens from the Commonwealth; . . . (i) for appointing officers to carry the order into effect, and for conferring on such officers and on the Minister
. such powers as are necessary or expedient for the purposes of the order." By par. 23 of the Aliens Restriction Order 1915 it is provided that " (1) The Minister" for Defence " may order the deportation of any alien, and any alien with respect to whom such an order is made shall forthwith leave and thereafter remain out of the Commonwealth. (2) Where an alien is ordered to be deported under this Order, he may, until he can, in the opinion of the competent naval or military authority, be conveniently conveyed to and placed on board a ship about to leave the Commonwealth, and whilst being conveyed to the ship, and whilst on board the ship, until the ship finally leaves the Commonwealth, be detained in such manner as the competent naval or military authority directs, and, whilst so detained, shall be deemed to be in legal custody."
Held, by Barton, Isaacs, Higgins, Gavan Duffy and Rich JJ. (Powers J. dissenting), that par. 2s of the Aliens Restriction Order 1915 was within the authority conferred by sec. 5 of the War Precautions Act 1914-1916; that it conferred a discretion upon the Minister to make an order for the deportation of any particular alien, and authorized his subsequent arrest and detention
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