Meyer v Poynton [1920] HCA 36; (1920) 27 CLR 436 (4 June 1920)

HIGH COURT OF AUSTRALIA

Meyer Plaintiff; against Poynton and Another Defendants.

H C of A

4 June 1920

Starke J.

Latham, for the plaintiff.

Owen Dixon, for the defendants.

Starke J.

The motion is dismissed. In order that the plaintiff should obtain an interim injunction, he must establish some primâ facie right. In the present case it has been suggested, upon several grounds, that the deportation of the plaintiff is contrary to law. The first ground is that an order pursuant to the Aliens Restriction Order 1915, reg. 2J, has not been made because it was not communicated to the plaintiff. In point of fact an order was made by the Minister on 21st May which seems, according to information supplied to me from the Bar, to have been in the form of a ministerial minute upon the departmental file. On 4th June 1920, however, after this action was commenced, a formal order was drawn up by the Minister in the following terms:—"I, George Foster Pearce, Minister of Defence for the Commonwealth, in pursuance of the powers vested in me under the War Precautions Act and under any regulation or order made thereunder do hereby order the deportation of Frederick William Meyer of Sydney, New South Wales, an alien at present resident in the Commonwealth.—G. F. Pearce, Minister of State for Defence." At the present moment, therefore, an order does, in fact, exist which directs the deportation of the plaintiff, and the only question is whether that order must be communicated to the plaintiff. In my opinion the Aliens Restriction Order 1915 does not require communication of the order for the purpose of giving it efficacy and effect. The power is placed in the Minister to give a direction or to make what has been called a "decree" upon which the deportation may proceed. It may be, and probably is, true that the plaintiff would not be guilty of an offence if he remained within the territory of Australia without knowledge of the order, but the duty conferred upon the officers of the Government to convey him to a safe place and to put him on board a ship rests upon the fact that the Minister has made an order, and not upon its communication to the plaintiff. If I were in doubt on the point or thought that the matter was susceptible of reasonable argument, I should feel it my duty to give the plaintiff the benefit of a reference to the Full Court, but it is impossible for a single Justice to call in the aid of the Full Court on all occasions.

The next point is somewhat more technical. It is said that under sec. 11 (b) of the Naturalization Act 1903-1917 the Governor-General had not revoked the certificate of naturalization which had been issued to the plaintiff in the year 1909. The section provides that, where "(b) the Governor-General is satisfied that it is desirable for any reason that a certificate of naturalization should be revoked," the Governor-General may revoke it. One argument was that the revocation did not contain the reason of the Governor-General, and therefore was bad. But the Statute, by the words used, places the revocation of the certificate entirely in the discretion of the Governor-General, and his decision cannot, nor can his reasons for it, be canvassed in any Court of law. Another argument presented to me on this point is that proof of the revocation by the Governor-General of the naturalization certificate is wanting. The suggestion is that the Governor-General only approved of a revocation. The plaintiff himself, in par. 4 of his affidavit, has sworn that on 14th April 1920 the Governor-General revoked his certificate of naturalization, and that the revocation was notified in the Government Gazette. In addition to that, the Government Gazette of 29th April 1920, at p. 627, contains the following notification: "The Governor-General in Council has approved of the revocation under sec. 11 (b) of the Naturalization Act 1903-1917 of the certificate of naturalization granted to" the plaintiff; "date of revocation, 14th April 1920." That confirms the plaintiff's statement, and if there had been time the defendants would, no doubt, have produced the Order in Council. But I have no doubt on the facts that the Governor-General in Council has revoked the plaintiff's certificate of naturalization, and that he did so for reasons which satisfied him. The point is purely technical, and has been made possible by the Court allowing the plaintiff to bring on his motion at very short notice to the defendants. This was necessary for the protection of the plaintiff, because his deportation was about to be effected.

Two other points were referred to by Mr. Latham. One was based on the suggestion that the provision in sec. 11 (b) giving authority to the Governor-General to revoke a certificate of naturalization is unconstitutional. The Judiciary Act 1912 makes it undesirable for any single Justice to declare an Act of the Federal Parliament unconstitutional. Such a decision ought to be obtained in the Full Court, and if the matter appeared to me of any substance, or was even faintly arguable, I should be prepared to refer it to the Full Court. But the matter seems to me to be clear and without doubt. Under the Naturalization Act power is given to admit the nationals of other Powers to Australian citizenship and thus confer upon them certain rights and privileges, and we reserve to ourselves, or rather to the Governor-General, the power to take away that citizenship and those rights and privileges in certain cases. It is said that depriving a person of citizenship so acquired is not a law relating to naturalization. I am quite unable to agree with the contention, or to consider that the point is susceptible of reasonable argument. It seems to me that if the power given by the Naturalization Act to admit to Australian citizenship is within the power to make laws with respect to naturalization, so must authority to withdraw that citizenship on specified conditions be also within that power.

The last point presented to me was based on the Treaty of Peace made between the Allies and the Associated Powers and the German Empire. Mr. Latham relied on art. 278. I need hardly say that the suggestion that the Executive Government of the Commonwealth can, without legislative sanction, make a treaty binding as a law upon the Courts and citizens of Australia is not a matter upon which I should, in this case, express any opinion. The Treaty of Peace Act 1919 and the regulations so far made under the Act were not and could not be relied upon. The article in question confers no rights whatever upon the plaintiff in this territory. It provides that "Germany undertakes to recognize any new nationality which has been or may be acquired by her nationals under the laws of the Allied and Associated Powers and in accordance with the decisions of the competent authorities of these Powers pursuant to naturalization laws or under treaty stipulations, and to regard such persons as having, in consequence of the acquisition of such new nationality, in all respects severed their allegiance to their country of origin." It is plain under the article that German nationals can claim no rights or privileges from the Allies or the Associated Powers which are contrary to the positive laws of those Powers. In Australia the Naturalization Act provides for the revocation of certificates of naturalization, and the Courts of Australia are bound by that law. The plaintiff is not an Australian citizen by force of Australian law, and the article confers no such status upon him. It is really designed to prevent Germany interfering with Germans whom the Allies or the Associated Powers choose to incorporate amongst their nationals.

It appears to me that the motion is without warrant and the argument without substance. The motion is therefore dismissed with costs.

Motion dismissed with costs.

Solicitor for the plaintiff, W. J. P. Fitzgerald, Sydney, by Amess & Clarkson.

Solicitor for the defendants, Gordon H. Castle, Crown Solicitor for the Commonwealth.