Aliens Bill, 1934—Committee Stage.
Sections 1 to 4 agreed to.
(1) The Minister may, if and whenever he thinks proper, do by order (in this Act referred to as an aliens order) all or any of the following things in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens, that is to say:—
(a) prohibit the aliens to whom the order relates from landing in or entering into Saorstát Eireann;
(b) impose on such aliens restrictions and conditions in respect of landing in or entering into Saorstát Eireann, including limiting such landing or entering to particular places or prohibiting such landing or entering at particular places:
(c) prohibit such aliens from leaving Saorstát Eireann and for that purpose prohibit such aliens from embarking on ships or aircraft in Saorstát Eireann;
(d) impose on such aliens restrictions and conditions in respect of leaving Saorstát Eireann including limiting such leaving to particular places or particular means of travelling or prohibiting such leaving from particular places or by particular means of travelling;
(e) make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Eireann and provide for and authorise the making by the Minister of orders for that purpose;
(f) require such aliens to reside or remain in particular districts or places in Saorstát Eireann;
(g) prohibit such aliens from residing or remaining in particular districts or places in Saorstát Eireann;
(h) require such aliens to comply, while in Saorstát Eireann, with particular provisions as to registration, change of abode, travelling, employment, occupation, and other like matters.
(2) An aliens order may contain provisions for all or any of the following purposes, that is to say:—
(a) imposing such obligations and restrictions on the masters of ships entering or leaving Saorstát Eireann, the pilots or other persons in charge of aircraft entering or leaving Saorstát Eireann, railway companies whose railway lines cross the land frontier of Saorstát Eireann, and the drivers or other persons in charge of road vehicles entering or leaving Saorstát Eireann as may, in the opinion of the Minister, be necessary for giving full effect to or securing compliance with such order;
(b) conferring on the Minister and on officers of the Minister, officers of customs and excise and the military and police forces of the State all such powers (including powers of arrest and detention) as are, in the opinion of the Minister, necessary for giving full effect to or enforcing compliance with such order;
(c) determining the nationality to be ascribed to aliens whose nationality is unknown or uncertain;
(d) in the case of an aliens order which provides for the exclusion or the deportation and exclusion of aliens, continuing the operation of such order and every order made thereunder notwithstanding any change in the nationality of the aliens or the alien to which such order or the order made thereunder relates;
(e) requiring hotelkeepers and innkeepers and other persons providing for reward on premises owned or occupied by them lodging or sleeping accommodation to keep registers of persons lodging or sleeping in such hotel, inn, or premises and to permit officers of the Minister and members of the police forces of the State to inspect and take copies of or extracts from such registers.
(3) If in any proceedings, whether civil or criminal, any question arises under or in relation to an aliens order or an order made under an aliens order whether any person is or is not an alien, or is or is not an alien of a particular nationality or otherwise of a particular class, or is or is not a particular alien specified in such order, the onus of proving (as the case may require) that such person is not an alien, or is not an alien of a particular nationality or of a particular class, or is not such particular alien, shall lie on such person
(4) An aliens order shall not apply to any of the following persons, that is to say:—
(a) the head of any diplomatic mission duly accredited to Saorstát Eireann, the members of the household of such head, and every member of the diplomatic staff of such mission whose appointment as such has been officially notified to the Minister for External Affairs or is otherwise entitled to diplomatic immunities and the spouse and child of such member;
(b) the consul-general and any consul or vice-consul in Saorstát Eireann of any other country and the spouse and child of such consul-general, consul or vice-consul.
(5) Every order made under the Aliens Restriction Acts, 1914 and 1919, and in force at the date of the passing of this Act may be amended or revoked by an aliens order, and until so revoked, and subject to any such amendment, shall continue in force and be deemed to have been made under this Act, and shall be an aliens order within the meaning of this Act.
(6) The Minister may, at any time, by order revoke or amend an aliens order previously made.
(7) Every aliens order shall be laid before each House of the Oireachtas as soon as may be after it is made, and, if a resolution is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such order is laid before it annulling such order, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.
I move amendment No. 1.
Sub-section (1). To add at the end of the sub-section the words "The words ‘a particular class' in this section shall not be construed as enabling the Minister to make an aliens order describing as a class those aliens who hold particular religious beliefs or political opinions."
This is one of a series of amendments which aim at limiting the powers of the Minister to act by order, and while I would have preferred that a discussion on this particular item should be deferred, it seems to fit in at this part of the section and must be discussed first. The powers given under the Bill to the Minister are that he may act by order in respect either of all aliens or of aliens of a particular nationality or of a particular class, or particular aliens, and it causes certain anxiety to understand what is meant by aliens of "a particular class." It is in such a form that in the discretion of the Minister any collection of persons might be called a class, no matter what the general characteristics of the group were, and it is quite conceivable that under waves of popular feeling antipathies against persons because of religious beliefs or political opinions might arise, and the Minister might make an order directed against these persons because of that character, belief or opinion, and I want to guard against that. If we are going to give the Minister these extraordinary powers, we must at least confine him as closely as possible to what the Oireachtas desires. I can understand at certain times the necessity for making a general order to apply to all aliens or to aliens of a particular nationality and I can understand in certain circumstances, particular classes being defined and having orders made against them, but I want to understand what is meant by "particular class" and I want to guard against the possibility that there should be orders made to apply to any group of persons because of religious beliefs or political opinions. I do not know if it is necessary to enlarge upon the desirability of having such a restriction, but I want the House to bear in mind, when considering the amendment, that the power given in respect of persons of a particular class, the "particular class" not being defined, means that it would be at the discretion of the Minister to prohibit them from entering the country, to ensure that if they did enter it they should enter it by a particular entrance, to prohibit their movements and generally to restrict their activities. It seems to me that that ought not to be done at the discretion of the Minister, and, I think, should not be done at all, unless a specific and particular case was made. I cannot conceive of this House or this country desiring to impose particular legislation or restrictive orders against people of religious beliefs unless, at least, a kind of feeling developing in certain countries were to take hold in an unaccountable way of the minds and emotions of people of this country. We are specifically giving powers to deal with persons of a particular class without defining what is meant by "a particular class," and I would like to guard against the possibility that people, because of religious belief or political opinion, should be grouped together and legislated against merely by the Minister's order. That is the purpose of the amendment.
Of course, there is no doubt that the word "class" is one of very wide connotation, but it would be extremely difficult, I think, to get any other word that could be substituted for it in this connection. It means that the Minister, instead of dealing with individuals, can group a number of individuals and regard them as a class, this class being distinguished by some common characteristic. The Senator wishes to prohibit the Minister from specifying as a class people of a particular religious belief or people who hold special political views. I do not know that there is any reason why the hands of the Minister should be bound in that particular way. This is a general Act, and if an occasion should arise in which it were necessary to take action, then I think the Minister should be at liberty to do so. But Senators will realise that, any order in that direction would have to be laid on the Table of both Houses. If there is any objection to it, as there would be obviously if it were harsh and did not meet with general approval and there was no good reason for it, then it would be dealt with on its own merits at a particular time.
I do not know why anybody should have any reason to anticipate that a Minister would take it upon himself to act in a way which would be contrary to the general spirit of the Constitution under which citizens are guaranteed freedom of conscience and freedom of opinion, provided that these are not contrary to public order and morality. Take, let us say, the case of some particular cult, it might happen that its activities were of a subversive character and that they would be regarded generally as being against public order and morality. If we were to limit this we would be preventing the Minister from dealing with it. Why should the Minister be precluded from dealing with such a cult simply because his doing so might be regarded as particularising people of a particular religious belief or faith, let us say? Its practices might be very objectionable and might be held to be contrary to public order and morality. In the same way it is possible to have political views which would be regarded in the same light by our people here, and that, in fact, would be subversive. There are political philosophies and political beliefs that are undoubtedly contrary to our conception of ordered government. Suppose that a number of people who believed, for instance, that all government was wrong: that it was contrary to the general welfare and to the full life of human beings, why should we allow that to be propagated here when, in its very nature, it would be subversive of our idea of ordered government, and of what, I think, would be regarded as subversive generally under the terms of the Constitution?
The Senator must remember that this Bill, when it becomes an Act, will be operated by the Minister, with this safeguard: that any order made under it has to be laid on the Table of both Houses. That is I think, a sufficient safeguard. In this and in all similar cases we have to rely on the Act being administered reasonably. If there should be any attempt on the part of the Minister to abuse the powers reposed in him, and apparently if they are to be made effective they must be reposed in him, then there is a way for dealing with the Minister and a way of annulling his orders. If an order under which someone is prevented from coming in cannot be annulled at once, at any rate action can be taken after a specified period by members of the Oireachtas, and if any reasonable objection can be shown to the order, then Parliament can remedy that. The same would apply to any hardship that might be considered to be imposed by an order regarding entry at some particular port. That is a matter that could also be remedied by the action of Parliament. In all the circumstances I do not think that the amendment is necessary, and, therefore. I cannot accept it.
I agree with the President, though I have a good deal of sympathy with the point of view expressed by Senator Johnson. But, having read the amendment, I came to the same conclusion as the President, that it would be impossible to add such an amendment to the Bill. The reason is that circumstances might arise in which you would have something that was claimed by the person concerned to be a religious belief which we here would not accept as a religious belief. Perhaps what the President said will, to some extent, meet Senator Johnson's point of view, namely, that you can annul an order by a resolution of either House. The difficulty at the moment is that while you can annul the order by resolution you cannot propose an amendment of it. The only case in which I can conceive a difficulty might arise is either with regard to religious beliefs or certain political opinions. It would be extremely difficult to meet such a case if the only power that is left to the Oireachtas is to annul the order. If there was power to amend an order then a particular point of view could be expressed. One of the difficulties in connection with the present system of Orders is that they can only be annulled. They cannot be amended.
I realise quite well that there are certain difficulties. A good deal of my argument on this particular amendment is based upon my antipathy to the method of governing in such matters as this by the Order of the Minister. I have very little faith in the value of what has become the practice regarding the powers of the Oireachtas when an Order has been laid on the Table. The twenty-one sitting days is of no value at all in many cases if the House has adjourned, say, from the 1st of August to the 1st January. Whatever damage might be done is being done all the time when the House is not sitting. While it has a certain value for the purpose of ensuring publicity in matters of this kind which involve a great deal of interference with individuals it is not of very much value.
The real trouble, I think, in this particular connection is the vagueness of the phrase "particular class." I should certainly like the Minister to consider whether he could not define a little more particularly what is meant by a "particular class.""Nationality" is fairly easily understood. "All aliens" is understood because there is a definition in the Bill itself. "Particular aliens" is easily understood because they are going to be described but "particular class" is not understood. It may be composed of people with red hair or of people with turned up toes. Anything at all that the Minister may define to be a "particular class" is a particular class which we are giving him power to legislate against. That, to me, is the essence of this difficulty that I am in. I would like if we could have a little more precise information as to what is meant by a "particular class."
The Order that has been in operation for some time gives power to deal with classes, and, as we shall hear later, arose out of emergency legislation that at any rate could be revised. I would appeal to the President to consider whether there could not be a somewhat better definition of this phrase "particular class," so that it would not be left to the imagination of whoever is in charge at the time to decide what is a class and who shall be comprised within it.
Amendment put and declared lost.
I move amendment No. 2:—
Section 5, sub-section (2). To delete paragraph (b).
The paragraph that I wish to delete is as follows:—
Conferring on the Minister and on officers of the Minister, officers of customs and excise and the military and police forces of the State all such powers (including powers of arrest and detention) as are, in the opinion of the Minister, necessary for giving full effect to or enforcing compliance with such order.
The powers proposed to be given in that paragraph appear to me to be nearly as wide as the powers given in the Constitution (Amendment No. 17) Act. We are going to do this by free, full and open authority—to hand over to the Minister these powers which he can exercise as long as the House is not sitting. It is in the Minister's discretion to say what length that interregnum is to be—it may be for several months in the year. In my opinion these powers ought to be contained in the Bill itself. We ought not to leave this open to the Minister to operate by Order. I am with Deputy McGilligan on this, at least. He is on the side of the angels for once. He pointed out that the Act of 1914 which is dated the 5th of August of that year —we know what an ominous date that was—was passed as emergency war legislation. But even the section which is equivalent to what is proposed here, says that the person shall be specified. It gives power to the Minister for the time being, by Order in Council, to confer upon such persons—that is officers—as may be specified in such order. There is no reference to specifying persons in the Order in this particular section, so that this is very much wider than the emergency war legislation of the British Parliament in 1914.
So far as I can see there is no reason whatever why the powers that are intended to be conferred upon the Minister, and the officers of the Minister, should not be specified in this Bill. I am pretty sure that they are already in the Department's files, and if they are not capable of being placed in this Bill, then they should be greatly limited. I would ask the House to read them and think of what is meant. The Minister may issue an Aliens Order. Such an Aliens Order is to confer upon himself and his officers—officers of Customs and Excise and on the military and police forces—all such powers, including powers of arrest and detention, as are in his opinion necessary for giving full effect to and forcing compliance with, etc....
I am asking to have defined in the legislation what the powers are, not to limit them in any way, but to say how long the detention shall be and what kind of officers shall have these powers, junior clerks or superintendents of police or whoever they may be. The Minister is going to have the power to do these things. I know the answer that always comes, when criticism is made, that we must trust to the discretion of the Minister. That answer is never very satisfying. It is the kind of answer which justifies one saying that there is no need for any legislation at all. In matters dealing with aliens we are giving the Minister power to use his discretion as to how he shall deal with them. The purpose of legislation is, not only to give powers to Ministers, but to limit their powers. In this case we are giving powers to the Minister but not limiting them in any way. I think this paragraph should be deleted, for the purpose of forcing upon the Minister the obligation of inserting in the Bill the kind of powers he wants, and a limitation of the powers which should be given. I cannot draft an amendment conferring on the Minister the powers I think he ought to have, but it is not outside the province of the Minister to do so. If he is capable of doing that at some future time, perhaps at a time of excitement, when an order is going to be issued, he is, at least, as capable of doing it now, in the calm of prevailing peace.
I support Senator Johnson generally with regard to the need for an amendment of this sub-section. He is right when he says that there is practically no limit, though I think the paragraph which includes powers of arrest and detention might be somewhat limited in law. Perhaps the fact that the words are there suggests that there could not be a death penalty in the order. The President, I suggest, should consider what is wanted. To my mind what is wanted is, that at the port if the police authorities are in doubt, they should have power to detain a person for 24 hours or for a short period until he can be brought before a court or a responsible person who would deal with the enforcement of the order. No other power than that should be given to officials of the Customs and Excise. The wide powers provided here are quite unnecessary. While I am not suggesting that they would ever be carried out as drastically as Senator Johnson believes, I think there should not be put into the Bill a provision giving to officials of the Customs and Excise powers over aliens to the extent provided. To do so would be to make people nervous and possibly give the impression that we were trying to take unnecessary powers regarding those who visit this country. From some experience I had as a member of a committee that had something to do with the treatment of Germans during the Great War, I know that in many cases mistakes in the way of detention were made and that persons complained they were detained without proper reason. That is one reason why the powers given to Customs and Excise officials should not be too drastic.
It is almost impossible to imagine all the possible powers that might be required, and to specify them in legislation. We know that it is easy to create a good deal of difficulty and to nullify the intention of the Legislature by leaving loopholes of various kinds. The moment you specify them there arises the possibility of nullifying the intentions of the Legislature in giving powers like these to Ministers. The fundamental question is: Is the Minister to have discretion to make certain orders? He can make these orders, and Parliament has the right to nullify them. If orders are made surely the Minister must be put in a position to make them effective. There is ample limitation of the powers officials shall have, that they shall be only those that are reasonably necessary for the enforcement of the order. The insertion of words dealing with powers of arrest and detention indicates, as Senator Douglas pointed out, the maximum sort of powers that would seem to be necessary. I could not hope to exhaust all the imaginary ways that might be resorted to to defeat a particular order. There might be a simple method of evasion, and the Minister should have power to see that these methods were not effective. While I understand the general spirit in which criticism is directed against giving these wide powers, and the danger that there is in cases of this kind, we must give the Minister such powers as will enable him to make effective the order which he wants to enforce. The question is, what do you want to do? You may have to direct the person to stay in a particular place. I am very much afraid it would be impossible to specify the varieties of evasions that might be attempted, or to specify the powers the Minister should have. I am quite conscious that that might be regarded as a lazy reply, in order to avoid an investigation of all the possibilities, but, after all, life is too short to attempt to meet all the things that might arise. In a matter like his, if there is any excitement abroad, it will not be on the part of the Minister. It is much more likely to be on the part of the populace. I do not know if the Senator wants to have this deleted, but there must be some clause in the Bill giving power to the Minister to enforce an order.
Have the police not got power to arrest aliens that break the law? If an alien disobeys an order made by the Minister he is breaking the law. In my opinion the police should only make arrests and bring the persons before the court. Whatever is necessary to have that done should be provided. Without supporting Senator Johnson in his drastic amendment, possibly the Minister would consider whether there should not be a limit to the time of detention.
May I remind Senator Douglas that there are some breaches of the law in respect of which there is no power of arrest? May I say to Senator Johnson that the clause he seeks to have deleted is only ancillary to the order provided in Section 5 (1). That order only deals with the landing, leaving, exclusion, residence and the registration of aliens. Before you conclude I wish to say that these are five matters in respect of which these ancillary powers are taken, and that there could be no such thing as sentencing a man to death.
I do not think there would be any question of adopting Senator Johnson's amendment and deleting the whole section. We agree with the President that the clause is necessary, but that there is hesitation to have unlimited detention without any necessity to bring an alien before a court or other body. There is no habeas corpus in regard to aliens, and if the Bill is left as it is by order anyone can be arrested and certified as an alien and kept in detention for an unlimited time. That is the only point of difference. We would like to have a little information as to limiting the detention.
Why should there not be habeas corpus?
Under the Constitution there is power of habeas corpus. It is “a person” is referred to. Senators are reading more into this Bill than could possibly be in it. These are the only powers necessary to give effect to the orders which are to be made and which will be passed by the House. As the Leas-Chathaoirleach has pointed out they are orders referring to particular activities and to residence, etc., of aliens. I am as sensitive as most people with regard to these matters. This is not a case in which I apprehend any abuse whatever of the powers to be given. Customs officers require to have powers to do certain things, because they are the people immediately dealing with these matters and not the police. It is one thing to detain a man coming off a ship and another thing to have to search or to follow him up afterwards. What is the need for duplicating forces? Is a Customs officer not a responsible officer in carrying out these duties? We arc unnecessarily anxious about the powers to be given, and I am afraid I cannot promise to get a satisfactory amendment, unless we were completely to eliminate such powers. Are the powers of arrest and detention sufficient? I cannot imagine what possible case would arise in the section from (a) to (h). The only possible amendment I can imagine would be to limit the powers in general, and I do not think the House wishes that to be done. What are the cases that might be thought of? We are either to limit their powers or leave general power there which, I think, is not unreasonable. We must not run away with the general idea that this is an objectionable type of legislation and so on and try to argue on that basis, because if ever there was an occasion in which this type of legislation which would seem to be justified it is here. As a result of criticism of the Bill we inserted amendments dealing with search warrants, bringing before justices and so on. These were not in the original Bill, and in the view of a number of Senators they will meet objections which have been raised. I would be quite willing if there were any specific suggestion that could be dealt with and which did not seem to curtail the Minister's powers— I would be willing to consider it, but I do not see how I can amend it except by doing it in such a way as would leave it powerless.
I ask the President if it is not possible to amend it in such a way for instance as to deprive him of power to impose fines of £100. This is the power, with slight modification, that was conferred in 1914 upon officers of the British Ministry, and there were, in fact, abuses which could not be remedied because the powers were given by Parliament to the Minister. The President used a phrase which, simple as it is, would give the power "reasonably necessary for the enforcement of the Order." I cannot understand what powers will appear in an order that cannot appear in the Bill. There could be defined powers in the Bill stating in the different sections what the Orders applied to. The whole question is how far the powers of the Minister to legislate are to be extended. It is necessary for certain powers to be given, but the question is how far is it desirable that they should be limited. The President has stated that there is not any case of unfair use of the 1914-19 Act. Granted, but that is just a confidence trick, getting the Order by saying that there have been no abuses because nothing happened. But the moment something does happen you find that the thing has been done and that you have no remedy. I think that the President ought to consider just how far he is going with this type of legislation. There is no reason why these powers should be given to the Minister for exercise in the form of an Order instead of being prescribed by legislation. It is unwise, in my judgment at any rate, that unlimited powers of this kind should be conferred on the Minister and upon those whom he likes to name when it is quite possible and practicable for the powers to be defined in the Bill.
Do you press your amendment?
With regard to the general principle, I agree with Senator Johnson that this tendency in legislation is wrong but, due to the complexity of the things that have to be dealt with, it is impossible to be explicit. The powers I want cannot be specified in the Bill. It would be different if one were dealing with one specific body. Here it is not possible and no suggestions have been made which would enable us to carry out our proposals in any other way. I think you will have sufficient safeguard in the fact that the order will have to be laid on the Table of the House.
I should like to refer to another matter while talking about the Table of the House. I think that some objection was raised by Senator Johnson about the laying of papers on the Table of the House—that such orders might be made when the House was not sitting. I was wondering whether something could not be done to meet that point, but I find that it would be necessary for the Minister to have power to take the action which would be necessary for the protection of the general body of the people even with the possibility of injustice to a single individual. It might be said that the Minister could summon the House and that the onus for doing so should be on him, but I think that where you have the public interest on the one hand and possible injustice to an individual on the other, you must consider the general public interest and that the expense of summoning the House should not be put on the people. It would not be reasonable to compel the Minister to bring the House together in order to deal with a case of that sort. As I have said, if there be any circumstance which would excuse the taking of these powers this is it.
I agree with the President about the definition of powers, but as a safeguard I would suggest that instead of leaving it to the opinion of the Minister there should be a limit of 48 hours or whatever time is reasonably necessary.
It has been suggested to me by officers of the Department that there was a case of an alien who was charged with having murdered a man here and he was kept here for two or three months until a Spanish ship arrived. Cases of that kind arise and no matter what case might be made for definition in the legislation, the officers of the Department could raise a case which would not be covered in the Bill. I am afraid no matter how you try that matter could not be got over, and I cannot accept the amendment.
Was that man held for three months on an order of the court?
It was a deportation order, I understand.
Would not your suggestion, Senator Douglas, limit the man's rights under habeas corpus?
Surely if it becomes law that he could be detained by order of the Minister indefinitely there would be no habeas corpus.
A habeas corpus order will issue if the person causing the detention cannot show reasonable cause. He will have to show reasonable cause. I do not think that adding the word “reasonable” before the word “necessary” makes the section anything better because the word “necessary” implies “reasonable necessity” in construction of the law.
It is the deletion of the other words I suggested.
Amendment put and declared lost.
I move amendment No. 3:
Section 5, sub-section (3). To insert before the sub-section a new sub-section as follows:—
(3) An aliens order in respect of all aliens or of aliens of a particular nationality shall not be made under paragraphs (a) to (h) inclusive of sub-section (1) of this section except in time of war or of grave national emergency.
I would like to make a slight change, to have the letter (g) substituted for the letter (h).
I think it is unwise to give those powers unless the circumstances of the moment are grave. They would be required in time of war perhaps but in times of peace I think that it is not a power that we should be asked to give to the Minister. I am simply asking that such a power shall not be exercisable in respect of all aliens—people who are not citizens— or in respect of aliens of a particular nationality except in times of war or grave emergency. It is, again, a question as to whether we as a legislature are prepared to entrust the Minister with these extraordinary powers, to be exercised when he thinks fit, without restriction upon the time or circumstances in which they will be exercised. Again, the President will say that the Orders will be laid upon the Table and, though the House may not be sitting at the time, it will be necessary that the House meet at least once a year for the discharge of the necessary financial legislation. Meanwhile, this Order will be operating. It is quite clear that this kind of legislation is particularly necessary in times of war, whether directed against all aliens or against aliens of a particular nationality. My amendment would allow that to operate but I do suggest that we should not give the Minister power to bang and bolt the door against all aliens at any time he wishes.
The point at issue is whether we are to have power to prohibit strangers from coming in and completely upsetting the whole position of our people by, perhaps, displacing them from employment, or whether there should be power of restriction in the Minister, who will have regard to the general welfare of the community. If that power were taken away, the Bill would be useless. Without that provision, the Bill would not confer the necessary power at all. We must remember that this Bill and the Orders made under it will be operated not merely to protect the community in the ordinary way from hostile action which might be apprehended in time of war, but to protect the community in respect of its economic and industrial interests. If you deprive the Minister of the power to make an Order in regard to all aliens, I am afraid you are going to take away from him a power which has been exercised, and exercised fairly consistently and widely, up to the present. In the present period of reorganisation of our industrial, social and economic life, powers like this are necessary, and such powers are now exercised, as we know, in practically every country. The question is whether or not we should have an open door here. That might be advisable if it were done by the world in general, but the question is whether, like other forms of protection, this form of protection should not be given to our community. I am afraid I shall have to resist this amendment. The amendment also refers to aliens of a particular nationality. In reference to aliens of a particular nationality we have in the Nationality Bill and also in this Bill certain powers of exemption which might need to be specified in an Aliens Order. We might have to specify in an Aliens Order certain exemptions and special regulations in regard to members of a particular nationality. We may wish to confer rights on people similar to those which they confer upon us. In regard to all aliens and in regard to aliens of a particular nationality, I am afraid that, if we were to accept the amendment, the powers which we deem necessary would go by the board.
I think that there is some misunderstanding. The President has referred to the restriction on the entry of persons seeking employment. My amendment is directed to an Order under paragraphs (a) to (g) which would include all aliens, not aliens of a particular class——
Might I call your attention to Section 5 (1) (a)? They are the only aliens to which the Order relates.
I think I had better go on in my own way. Power is given to the Minister to issue an Order prohibiting entry, to impose conditions upon persons who have been allowed to enter, to prohibit such persons from leaving the country, to effect their exclusion or deportation and to require them to remain in particular places— the kind of Order that is directed against the President himself in Northern Ireland.
That is against an individual.
But this Bill wants to give power to the Minister to make an Order directed against any person who is not a citizen. I do not know whether it is a matter of grammar or grammatical construction, but it seems to me that this section gives power to the Minister to prohibit the entry of any person who is not a citizen, to control the movement of such a person, if he comes in, and to require that he leave. That Order may apply to all aliens. If he wants to apply the Order to particular aliens or to a particular class of aliens, he may do that under my amendment. But he would not be entitled under the amendment to exclude holus bolus, by his own decree, everybody who is not a citizen, or to say that no German, no Russian or no South American would be allowed into the country. If he wishes to say that certain persons of a particular class or certain individuals who shall be specified are not to be allowed in, I can understand it, but the making of a general Order covering every alien, or a general Order covering every alien of a particular nationality, seems to me to be a thing which should not be within the power of the Minister. It is to the extent of these powers to be given to a particular Minister—and that Minister the head of the Police Department—that I object. This is a police measure. It is not an External Affairs measure.
If Senator Johnson reads his own amendment carefully he will see that it covers paragraphs (a) to (h). If he reads (h) he will find that part of the powers that can be given are powers dealing with the occupations that aliens may carry on here. If you have an Aliens Act at all, you should be able——
Senator Johnson asked leave to substitute (g) for (h) in his amendment.
It seems to me that to exercise the power of prohibition in the case of all aliens at a time would be absurd except in case of a real emergency. I am not so sure that a number of the other powers could not be exercised even under some of the other sections.
I agree with Senator Douglas that one can hardly conceive an Order being made absolutely prohibiting all aliens from landing except in time of very grave emergency. But we are legislating now to give power for the making of general Orders. The Senator has anticipated the reply I propose to make. He will admit that the Minister should have power to make Orders with respect to particular aliens. It is quite clear that, in the case of a large number of aliens, we could not specify the individuals and we might have to refer to them as a particular class or group. Then we come to aliens of a particular nationality. Certain circumstances, other than war, might make it advisable to have powers in regard to aliens of a particular nationality. I have already referred to certain cases—cases of exemption—in which we will require to have this power. The objection is fined down to a point which it is not so easy to answer—that with regard to all aliens. Having gone so far, I do not think that we should stop at giving the Minister the powers necessary to make this Bill sufficiently wide and comprehensive to deal with all the circumstances that will arise. The Order will have to be laid on the Table of both Houses. I admit, with the Senator, that that is not absolutely and completely satisfactory, but in this case I think it affords ample protection. Another measure might have to be brought in at an awkward time if steps had to be taken against all aliens and the courts were to hold that a state of war did not exist. Again, I am of opinion that Senators are unnecessarily anxious. It is right that these Bills should be examined carefully, but, on full consideration, I think that Senators will find that there is no necessity for apprehension on the ground of abuse of the powers.
Amendment put and declared negatived.
I move amendment No. 4:—
Section 5, sub-section (5). To insert before the sub-section a new sub-section as follows:—
(5) An alien who has been for a period of not less than five years resident in Saorstát Eireann and is in employment or engaged in business or in the practice of a profession in Saorstát Eireann shall not be deported under the provisions of this section unless—
(a) pursuant to the sentence of a court of competent jurisdiction in Saorstát Eireann such alien has undergone or is undergoing a term of imprisonment for a breach of the law of Saorstát Eireann; or
(b) a judge or district justice before whom such alien has been brought for trial on a criminal charge has recommended his deportation; or
(c) the Minister has caused such alien to be served with a notice in writing stating that it is intended to make an order for his deportation and an interval of not less than three months has elapsed since the service of such notice.
This amendment is one of limited scope. If it were accepted as it stands or in principle, it would not make any drastic alteration in the powers conferred by the Bill. It applies to a class of aliens to whom I referred on Second Reading—people who had been for a considerable period engaged in some lawful occupation in the country, who had not run foul of the law or committed any misdemeanour. My amendment does not propose to fetter the discretion of the Executive in any way. It proposes to establish what is really a very small safeguard. It deals only with the question of deportation, which is amongst the many powers taken in this Bill. I propose that there should be a certain limitation in respect of the power of deportation simply because there is a sort of finality about deportation. To deport an alien might seem to be less serious action than to intern him. I presume there are powers of internment under other Acts. If a man were interned without good cause, representations could be made and, if his internment was due to some misunderstanding or to hasty action by a police officer, he could be released. But if he were taken and thrown neck and crop out of the country, it would be practically impossible to do anything for him. After such treatment, he might be afraid to come back, so that there is somewhat the same finality about deportation that there is about execution.
I think that, in general, if an alien were deported, however great the hardship or injustice to his family, nothing could be done about it, and so far as representations in the Dáil and Seanad are concerned, they would be of no avail, because anything done under an Order would be valid even if the Order were revoked. Something like this should go in as a headline in. the administration of the Bill. As a matter of fact, although three months is suggested, if there is an alien whom the Government has some reason to get out of the country, he can be restricted in so many ways that he can do no damage during the three months. If he is a person who ought to be got rid of or if he were really dangerous in circumstances of strained relations, the remedy would be not to deport him, but to intern him. I do not say the amendment deals with aliens adequately but it would set a headline for a Minister, and something like that is desirable. Without some such safeguards, the position is than an alien has no rights. I do not want to say that people would be harshly dealt with without any consideration, but circumstances might arise if there was a little feeling when the tendency would be to be over-cavalier and to disregard people outside the protection of our law, and I regard it as one of the signs of civilisation that "a stranger within the gates" should get fair treatment and have his human rights regarded. If there is a class of alien here in respect of whom there are certain difficulties, the tendency on the part of the police and of other officials would be to consider the case of aliens who are protected with more care and to be less hasty to throw them out. I understand that elsewhere great hardships have been inflicted on aliens by way of deportation and I think that the Government ought to consider whether something like this by way of headline to those who will be administering the Act in future, ought to be set which would, to some degree, act as a standard which would not impede anything in the interests of the people or in the interests of the country.
I agree in general with the views expressed by Senator Blythe and I am prepared to accept the amendment in principle. The time that is indicated in the amendment is roughly the time in which aliens resident in the country could qualify for citizenship. It seems to me a reasonable point. I will see if it gives the Minister ample powers, so that if the Senator would withdraw the amendment, we could reintroduce it on a further stage. I would like to have it reconsidered and to bring it in on the Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 5:—
Section 5, sub-section (7). To insert before the sub-section a new sub-section as follows:—
(7) Every aliens order in respect of all aliens or of aliens of a particular nationality shall be laid before each House of the Oireachtas and shall not be valid until a resolution approving such order has been passed by both such Houses.
This is really aimed at doing in a better fashion what I sought under sub-section (3). The intention is that if the Minister is going to make an order to apply to all aliens, or to all aliens with particular nationality, that that order must receive specific sanction from the Legislature, just as if an order were made by way of an Act and not by way of the Minister's own decree. I do not think there is any need to argue this, therefore, to any further extent. It raises the question whether the powers of the Minister shall be those of the Legislature pro tem. or whether when you are going to deal with aliens of a particular nationality, you should not have the specific sanction of the Legislature. That is the whole purpose and effect of the amendment.
I think I have indicated already what in general we desire. The issue seems to be whether the community should be allowed to suffer through the inability of the Minister to make an order during the period in which Parliament is not in session, or whether there should be some possible hardship inflicted on people who do not belong to our political community, and I think that the safeguards provided by the laying of orders on the Table of the House are between the two evils. Between the two I naturally choose or lean to the one that I think would be most for the safeguarding of our own people.
Amendment put and declared lost.
I move amendment No. 6:—
In Section 5, sub-section (7), after the word "order" in line 38, to insert the words "and every order revoking or amending an aliens order."
The Minister under Section 6 may make an order called an aliens order. He may make an order to revoke an aliens order. Under Section 7 it is provided that every aliens order shall be laid on the Table of the Oireachtas, but it is not provided that an amendment to an aliens order shall be laid before the House. It is simply to ensure that an order amending or revoking an aliens order shall also be laid before each House. Otherwise, an order which is not an aliens order but amends an aliens order may become operative under power of statute though it has never come before the House at all.
I see no objection to accepting this amendment but I am not so sure that it is really necessary. I think aliens orders would also include orders amending and revoking. There is no harm in making doubly sure and I am accepting it, as I see no objection to it.
Amendment put and agreed to.
Amendment No. 7 not moved.
I move amendment No. 8.
In Section 5, to add at the end of the section a new sub-section as follows:—
(8) Whenever an order made under an aliens order is made in respect of aliens of a particular class or in respect of particular aliens such order shall be published in the Iris Oifigiúil as soon as may be after it is made.
The object of this amendment is to bring it in line with orders dealing with books. It is provided that orders under other Acts dealing with the importation of books and periodicals are to be published in the Official Gazette. I simply want it to be known to the public that when an order is issued against A.B. and all his tribe or group or community, that the public shall know such an order has been issued and therefore, I ask that it should be published in Iris Oifigiúil, I do not think it is desirable that the Minister should have these powers without making public how he is using them. That information, at least, should be given to the public. We are providing that other things shall be laid before the Oireachtas, and the Oireachtas may then take such action as it wishes, but unless the Oireachtas knows how it is working or what classes of people the order is made against, the value of its power of revocation is very small indeed, so I think it is at least desirable that the publication should be made available showing how the Minister is using the powers. I therefore seek that when orders are made against a particular class or particular aliens the facts should be made known through Iris Oifigiúil.
It would appear that Senator Johnson and I have changed sides in this particular matter. I am interested from another point of view, and there are reasons why I feel we must object I have the interests of the particular person against whom an order may be made, in mind, and I am considering whether he would wish to have the fact published in this particular way. We have then to choose between two things—one is the desire of the Seanad and people of the country to know how these powers have been exercised, and, on the other hand, the natural desire not to harm people against whom we might be compelled to take action, more than is necessary for our immediate protection. The issue is whether it is advisable to issue names and to have these put on a black list. In thinking over it, I was wondering whether it was less objectionable if a return was made available for members of both Houses or if it could be got by parliamentary question. The return could be had by either of these ways, but it might have as detrimental an effect as if the publicity were given in Iris Oifigiúil. My feeling is that we should not do it in the case of particular aliens. Whether a parliamentary question should be resorted to or a return given instead, and whether that would be better, I would like to hear Senators' views. I have an open mind, and here is a case from ar administration point of view, which does not mean much, but from the point of view of keeping acts of the Minister in front of the public appears advisable. The question is: would we be doing unnecessary harm to the people concerned? If any suggestions are made, I would be glad to consider them on the Report Stage. Senator Johnson is approaching it from one angle and I from another.
I agree with the President. I do not think it would be fair to publish the names when it might be undesirable to give the reasons in so many cases. The reason may be purely national and there may be nothing against the character of a particular person, but it might be held to be against his character in another country. The only suggestion I could make would be that the Department of External Affairs could permit the list of members to be seen by Deputies and Senators or by properly accredited members of the legal profession— something of that kind without any definite publicity. To publish a list of names to members of the Oireachtas would be the same as putting it in the Official Gazette.
The only thing, to my mind, that would be necessary is a provision by which properly accredited persons could see the list by giving proper reasons as to why they wanted to see it.
I am not able to understand this argument, and, unless there are reasons of the kind that would appeal to the average citizen, there should not be an Order directed against a person at all. One assumes that it is only for serious faults or dangers to the community, industrial or otherwise, that persons are being prohibited. If there is a tenderness for the alien, then it must be presumed that the alien is going to be prohibited for no fault or danger at all. If there is not going to be any publicity, how is anybody to know in what way the Minister is using his powers? On two occasions when the Expiring Laws Bill was presented here for re-enactment, I did ask how the Act taken over here was being operated. I was not told, and I did not press for the information. But, unless it is made known the kind of person against whom these Orders are being directed, the number of persons against whom they are being directed, what kind of policy the Minister is following out under the powers that we are giving him, how is the Legislature to know? We are handing over powers, which are statute-making in effect, to a Minister, and we are not ensuring that we shall be told how he is using those powers.
I can understand being tender, perhaps, to aliens if the powers are going to be used without good reason—if they are going to be used out of mere prejudice—but, if there is any solid public reason for excluding aliens, surely the reason should be made public as well as how the powers under the Act are being administered. It may be that that is too logical. It may be that one should get away from ordinary reasons in these things. The powers that we are giving to our Minister are not to be renewable annually. The presumption about the annual renewal of powers is that they may be exercised in such a way that they should be withdrawn, but this is a permanent piece of legislation. It is different from that passed by the British, which is renewable annually. We are handing over these powers to the Minister, and we are not going to ask him how is he administering them. That, I suggest, is not a wise thing. I think that we should place on the Minister the obligation of publishing the names of the persons against whom he is directing his Orders.
I think I have already given the real reason for our objection to the amendment. It is not to cover up something or anything of that sort. I am sure that Senator Johnson will see the force of the remarks made by Senator Douglas on this matter. As he has pointed out, a person may be excluded for national reasons or for some reason which did not reflect on his character at all. Again, as Senator Douglas pointed out, a person may be excluded for reasons that it might be very awkward to give. To state the fact that a person was excluded without giving a reason might also be very harmful, because in these cases if there are several reasons for which a person may be deported the worst possible reason might be suggested as the real reason why he was deported. Therefore we are loth to give that publicity. I was wondering whether we could have some list that, without making it public, would be available at stated periods for those interested in a matter of this kind: for instance, to members of the two Houses. If that information were made available in the form of a return, it would, I suppose, have to be published.
The most secret method, I suggest, is by publication in the Iris Oifigiúil.
I had arrived at almost the same conclusion regarding that as the Senator. If the information given in returns was of a startling nature the newspapers would be glad to get hold of it and make use of it. That is one difficulty I see. At any rate, I will have a further conference with the officers of the Department of Justice on the matter. If, after hearing all the arguments that may be put up in regard to aliens, I come to the conclusion that, in order to protect the public against possible abuses by the Ministry—that such a consideration is really overpowering in the case—then I will agree to the insertion of the amendment later, but at the moment I would like to have more time to consider it.
Amendment postponed for Report Stage.
Question proposed: "That Section 10 stand part of the Bill."
On the section, I would like to have a statement from the President as to the relation between it and Section 5. Under Section 10 the Executive Council is taking power to exempt the citizens of any particular country from the provisions of the Bill. What I am anxious to find out is whether, in the event of a particular country being exempt, it would still be impossible to make an individual order against a particular alien who is a citizen of that country. I am inclined to think that a difficulty might arise there. To speak plainly, while circumstances are as they are and while most of us hope that it will be possible some time to have reciprocal arrangements with the United Kingdom and Northern Ireland, the position is that Section 10 will apply to the citizens of those countries. Nevertheless, there may be cases in which it is thought desirable to make an order against a particular individual who is a citizen of one of these countries. What I am anxious to know is whether the President thinks he will have power under this Bill to exempt a particular country, and still retain powers to deal with an individual who is a citizen of that country? From the wording of Section 10 the position seems to me to be rather doubtful. I think the matter is worthy of consideration because, quite conceivably, such a situation might arise.
I would also ask the President to consider the question of immunity that is given to certain people under sub-section (4) of Section 5. When I raised this matter on the Second Reading of the Bill, the President seemed to indicate that there was sufficient power to deal with it under Section 10. The President's comment was that High Commissioners received here would be likely to be from States within the British Commonwealth. I pointed out that we might have representatives from other countries, and that so far as they were concerned Section 10 could hardly operate. I believe that we have here at present a French commercial attaché. Whether his appointment would come under "the head of any diplomatic mission duly accredited to Saorstát Eireann, the members of the household of such head" I do not know. It may be that a trade commissioner or a commercial attaché would be directly responsible to his home Government or home Department. If so, I do not think that he would be covered by Section 10 as it stands, because I think that section relates exclusively to the representatives of States within the Commonwealth.
Perhaps it would be desirable to have an amendment of sub-section (4). It might be well if discretionary powers of exemption were given to the Minister. Under paragraphs (a) and (b) of that sub-section certain classes are exempt. For instance, a consul-general might have a secretary, and while technically he might be a part of the diplomatic staff if he did not come specifically under this sub-section there might not be power to exempt him.
Would there not always be power to exempt under the terms of the Order itself? That is a matter that would come up in the framing of the Order. When an exemption order is being made powers will need to be reserved to deal with the aliens of the particular country that is being exempt. The aliens from that particular country will have to be safeguarded. The order made relating to them will have to be drawn up with extreme care. I think the same thing applies to exemptions. It is quite clear that particular people can be specified individually or as a class in an Aliens Order. With regard to the point raised by Senator Milroy, if the commercial attaché is a member of a diplomatic mission accredited as such he will be covered by this. Again, if any particular exemptions were required they would have to be provided for in the Order itself. Therefore, I do not think there is need to make any special provision to deal with this, as suggested by the Senator. I think there would be a good deal of objection if I had to come here with a Bill giving powers to make all sorts of exemptions. The Bill has been examined from that point of view and is, I think, watertight on all the points that have been raised. If we pass the Committee Stage this evening, these are matters that can get further consideration before the Report Stage is taken next week.
I do not think that the President has dealt with the point I raised with regard to Section 10, which provides:—
The Executive Council may by order exempt from the application of any provision or provisions of this Act, or of any aliens order, the citizens of any country in respect of which the Executive Council are satisfied that, having regard to all the circumstances and in particular the laws of such country in relation to immigrants, it is proper that the exemption mentioned in such order should be granted.
I want the Government to be able to exempt the citizens of a particular country from any and every part of this Act. Nevertheless, I want them to have power to deal with a particular individual who is objectionable. I am not satisfied that there is power under the section, as it stands, to do that, and what I am suggesting is that the section should be further examined from that point of view.
It has been considered, but we can examine it again. The question is, what would be the form? Senators seem to have in mind a very general form of order passed by the Executive Council that could be detailed with regard to the deportation of an undesirable character. I would like Senators to tell me if that is the point. Otherwise I have not got it. As I understand it, the point made is that Senators fear the order which would be made by the Executive Council, exempting citizens of a certain country, would be of such a character that it would preclude Ministers from dealing with particular aliens.
I want to be sure that if it was thought desirable to exempt, say, a British citizen from registration, that that is included in Section 5 (1). Citizens of Britain are not exempt under the section. Having done that portion of the order could not be taken and applied to any individual.
Surely they would put in exceptions?
They would not have any idea who would be undesirable in two years' time.
It would be possible to foresee the class of people to be dealt with. The Senator wants to go a little further along the lines we are moving, and to take still further powers. I think the position is covered. It will depend on the power to foresee the classes that we want to exempt, and I think we can foresee these.
Section 5, as amended, and Sections 6, 7, 8 and 9 agreed to.
SECTION 10 (1).
(1) The Executive Council may by order exempt from the application of any provision or provisions of this Act, or of any aliens order, the citizens of any country in respect of which the Executive Council are satisfied that, having regard to all the circumstances and in particular the laws of such country in relation to immigrants, it is proper that the exemption mentioned in such order should be granted.
I move amendment No. 9:
Section 10, sub-section (1). After the word "citizens" in line 56 to insert the words "subjects or nationals."
I am accepting the amendment. Senator Milroy raised this point on the Second Reading. While the amendment does not seem to be necessary we may be making reference to countries where the terms used will be "subjects or nationals." It might be more artistic if you like to put in these words.
Amendment put and agreed to.
Question proposed: "That Section 10 stand part of the Bill."
Reverting to the point made by Senator Douglas, it is as well to bear in mind that the implication of this section is reciprocity. If you are going to make exceptions, touching groups or classes of individuals, or leaving it open to exclude certain individuals from the country with whom reciprocal arrangements are made, you must expect that they will do the same thing. Their views and ours as to who is desirable may differ at times. It is as well to leave this as open as possible, so that the reciprocity will be complete and absolute.
I think the Senator can be satisfied that we have the power to make exemptions from any orders that are made. The provisions are sufficiently wide to enable us to deal with any circumstances such as the Senator indicated. A point of view opposite to that of Senator Douglas has been expressed by Senator Johnson. The question of reciprocity will have to be very carefully considered. In the drawing of particular orders the Executive Council, when considering the details, will have to have clearly in mind the needs of reciprocity, and to know exactly all the circumstances. They will be entitled to retain the power of saying to a particular alien that he is undesirable, on the ground of some type of undesirability, if we have the difficulty Senator Johnson indicated. That is a matter for the order and not a provision for the Bill.
Section 10, as amended, and the remaining sections agreed to.
Bill ordered to be reported.
It is proposed to ask the House to take the Report Stage on Wednesday next. As I indicated already, I propose to bring these two Bills that have been amended up to the Report Stage and to take them to the Dáil at the same time. The only Bill that is not likely to be amended is the Constitution (Amendment No. 26) Bill. I propose to leave that in the Seanad until the Fifth Stage and to try to get the Seanad to pass the other two Bills with the amendments, to take them to the Dáil and to bring them back so that the three Bills would pass the Seanad at the same time.
Report Stage ordered for Wednesday, April 3rd.