Attorney-General (Cth) v Balding [1920] HCA 16; (1920) 27 CLR 395 (18 March 1920)

HIGH COURT OF AUSTRALIA

The Attorney-General for the Commonwealth and the Minister for Repatriation against Balding, Trustee of The Assigned Estate of Drew.

H C of A

On removal from the Supreme Court of Victoria.

18 March 1920

Knox C.J., Isaacs, Higgins, Gavan Duffy, Powers and Rich JJ.

Braham (H. I. Cohen with him), for the trustee.

Ham, for the Attorney-General and the Minister for Repatriation,

The following judgments were read:—

March 18

Knox C.J.,

Isaacs, Gavan Duffy, Powers and Rich JJ.

The only question that remains for our consideration in the present case is whether the provisions of sec. 19 of the Australian Soldiers' Repatriation Act 1917, as amended by sec. 14 of the Australian Soldiers' Repatriation Act 1918, are within the power of the Commonwealth Parliament. The section as amended is in the following words:—"Claims in respect of moneys advanced by the trustees of the Australian Soldiers' Repatriation Fund or by the Minister or a State Repatriation Board or a Local Committee, shall have the same priority with respect to the payment of debts as if the money had been advanced by the Crown." In our opinion the Commonwealth Parliament had power under sec. 51 (VI.) of the Constitution (the defence power) to enact this provision. It is a provision for the re-establishment in civil life of persons who have served in the defence forces of the Commonwealth when they are discharged from such service. That is a matter so intimately connected with the defence of the Commonwealth as manifestly to be included within the scope of the power.

The chief objection to the validity of the section was founded on the circumstance that the fund constituted for the purposes of the Act consisted partly of moneys contributed from other than public sources. It was urged that as to those moneys at all events there was no Crown debt, and the attempt to give priority to claims in respect of those moneys was invalid. Then it was said the language of the section not being susceptible of separability the whole was ultra vires the Parliament. The answer is that the question depends not on the source whence the moneys originated but on the character and destination of the fund as constituted by the Act. No distinction exists as to any of the constituent elements of that fund. The character impressed upon it by the Act is entirely public, of Commonwealth creation, for Commonwealth purposes, and under Commonwealth direction and control.

We therefore are of opinion that the provisions of the section are well within the powers of the Parliament, and the objection fails.

Higgins J.

I concur in the opinion that the provisions of sec. 19, as amended, are within the powers of Parliament with respect to naval and military defence. The funds, whether coming from private contributions or from public grant, have one common destination—the repatriation of returned soldiers; and it is for Parliament to say whether the funds for repatriation can be more satisfactorily administered on one systematic basis by Commonwealth authority, and on such terms as effectually secure the loans made to returned soldiers, or give the lender priority over other creditors. Such legislation appears to me to be fairly incidental to the power to legislate with respect to defence.

The applicant having undertaken to abide by any order the Court might make as to costs, order that the costs of the respondent, including the costs of the motion to this Court, be paid by the Attorney-General.

Solicitor for the Attorney-General, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for Balding, Braham & Pirani.