Ferguson v Commonwealth [1943] HCA 9; (1943) 66 CLR 432 (31 May 1943)

HIGH COURT OF AUSTRALIA

Ferguson Plaintiff; and The Commonwealth of Australia Defendant.

H C of A

31 May 1943

Latham C.J., Rich and Starke JJ.

Fullagar K.C. (with him Dean), for the defendant.

L. D. Seaton, for the plaintiff.

Fullagar K.C., in reply.

The following judgments were delivered:—

Latham C.J.

This proceeding is a demurrer which raises the question of the validity of Statutory Rules 1942 No. 500, by which reg. 83 was inserted in the National Security (Supplementary) Regulations. Par. 1 prohibits the publication of certain advertisements. Par. 2 relates to publication within the meaning of the regulation. Par. 3 provides for the administration of the regulation, and par. 4 provides an inclusive definition of "advertisement" for the purpose of the regulation.

The regulation (par. 1) prohibits the publication of certain advertisements. Those advertisements are advertisements relating to, or intended to promote the sale of, any goods, and containing any matter directly or indirectly relating to the seasons of Christmas, New Year or Easter, or Christmas, New Year or Easter gifts or the practice of giving such gifts. The validity of the regulation is attacked because (it is submitted) it is made under the defence power (sec. 51 (vi.) of the Constitution) and it has no relation to war or the defence of the country. The Court, it need hardly be repeated, is not concerned with the wisdom or expediency of the regulation, but only with the power to make it.

The waging of war to-day involves a large measure of control of economic matters. It involves a large measure of control of the expenditure of moneys by members of the public. The degree to which this control should be exercised is a matter for the legislature and not for the judicial authorities. The legislature may prevent wasteful or extravagant expenditure of moneys and, within limits of reason, it must be left to the legislature to determine what expenditures are in all the circumstances of the relevant time to be regarded as wasteful or extravagant. It is a matter of common knowledge that, at particular seasons of the year, particularly at Christmas and to a lesser extent at Easter and New Year, there is a practice of making gifts and there is a rise in the expenditure of the public. The effect of the regulation is to depress the particular stimulus which otherwise would be given to the retail trade at such a time by large expenditure in the purchase of retail goods. The result is also to apply a check to the manufacture of such goods. Accordingly, the regulation has a relation to the manufacture of goods which may reasonably be regarded as non-essential, and therefore limits the use of labour for such a purpose. Thus the regulation is a means of making more labour and more finance available for the war effort.

It is objected, however, that the regulation also imposes a prohibition upon "goodwill" advertisements, that is, advertisements not seeking to bring about the immediate sale of goods, but intended to preserve the goodwill of a business in which goods normally are sold. It may be pointed out that advertisement is prohibited only if it contains matter directly or indirectly relating to the seasons mentioned or the practice of making gifts at those seasons, and accordingly the regulation does not prohibit ordinary Christmas greetings unrelated to the sale of goods or unrelated to any goods. The point has been taken that the regulation prohibits the publication of advertisements relating to goods as well as the publication of advertisements intended to promote the sale of goods if they contain any of the matter mentioned in par. 1. It is argued that this goes beyond the defence power. I find myself unable to accept that argument, because, whatever may be the construction of the regulation, in my opinion it is within the power of the Commonwealth Parliament in time of war to limit all advertising in relation to all matters. The decision as to whether particular advertisements should be prohibited or not, as I have said, is in my opinion a matter for the decision of the legislative rather than of the judicial authority.

In my opinion, therefore, the demurrer should be allowed.

Rich J.

I agree. I think that the regulation in question should be read as relating to the sale of goods, and the promotion of the sale of goods. It has for its object the prevention of wasteful and extravagant expenditure and spending, and it tends to conserve labour and to prevent waste of material. The regulation may not fully achieve its object. But that kind of criticism is irrelevant and does not affect its nexus with defence.

I agree that the demurrer should be allowed.

Starke J.

I agree that the demurrer should be allowed.

Demurrer allowed with costs, and action dismissed with costs.

Solicitors for the plaintiff, Leonard D. Seaton & Co., Perth, by Whiting & Byrne.

Solicitor for the defendant, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.