Jerger v Pearce [1920] HCA 42

Fol Ole of Celt, in, Re; Ex

See

588 HIGH COURT [1920.

[HIGH COURT OF AUSTRALIA.]

JERGER z F 8 ' : 4 3 : PLAINTIFF ; AGAINST PEARCE % i A : 3 3 . Derenpayt. THE KING ; AGAINST

LLOYD AND OTHERS.

H.C. or A. Alien—Deportation—Order for deportation—Validity—War—Termination—Pro-

1920. clamation of Governor-General—Validity of Commonwealth legislation—Defence _w power—Aliens Restriction Order 1915 (Orders in Council of 27th May 1915 and MELpourne, 1st March 1916), par 2s—War Precautions Act 1914-1918 (No. 10 of 1914— July id 15, No. 37 of 1918), sec. 2 (2)—The Constitution (63 & 64 Vict. c. 12), sec. 51 (¥I.). Par, 23 of the Aliens Restriction Order 1915 authorizes the Minister for

Starke J. .

Defence to " order the deportation of any alien."

°

Held, that such order need not be in any particular form, and, if from the words used it clearly appears that the Minister directs the deportation, that is a sufficient order.

Sec. 2 (2) of the War Precautions Act 1914-1918 provides that "For the purposes of this Act, the present state of war means the period from the fourth day of August one thousand nine hundred and fourteen, at the hour of eleven o'clock post meridiem reckoned according to Greenwich standard time, until the issue of a proclamation by the Governor-General that the war between His Majesty the King and the German Emperor and between His Majesty the King and the Emperor of Austria King of Hungary has ceased."

Held, that the section is within the power conferred on the Commonwealth Parliament by sec. 51 (v1.) of the Constitution to make laws with respect to the naval and military defence of the Commonwealth.

Ferrando v. Pearce, 25 O.L.R., 241, and Farey v. Burvelt, 21 C.L.R., 433, followed.

C.L.R.J OF AUSTRALIA.

oTION for interim injunction and order nisi for habeas corpus. An action was brought in the High Court by a writ issued on 9th July 1920 by Charles Jerger against the Honourable George Foster Pearce, Minister of State for Defence of the Commonwealth, by _ which the plaintiff claimed a declaration that the War Precautions ; Regulations 1915 are no longer in operation and are ultra vires the Constitution, and an injunction restraining the defendant, his agents or servants from taking any action or step interfering with the personal liberty of the plaintiff and compelling him to leave Aus- tralia, and from authorizing or permitting any military or naval authority to arrest the plaintiff or to interfere with his personal - liberty. Leave was given on 13th July 1920 to serve short notice of motion for an interim injunction in the terms of the writ until trial of the On 13th July 1920 Charles Jerger and Edmund Leo Henry _ applied for and obtained from the High Court an order calling upon Captain Longfield Lloyd, Intelligence Section, General Staff, 2nd - Military District ; Major Edwin Hamilton Serle, and Lieutenant- — Colonel John Ernest Robertson, the officer commanding at the Queenscliff Barracks, to show cause why a writ of habeas corpus should not issue directing them to produce the body of Charles _ Jerger before the Court. The motion for interim injunction and the order nisi for habeas corpus were heard together by Starke J.