R v Regos & Morgan [1947] HCA 19; (1947) 74 CLR 613 (9 June 1947)

Dean K.C. (with him Monahan K.C., J. G. Norris and J. E. Starke), for the accused.

Dovey K.C. and P. D. Phillips K.C. (with them A. M. Fraser and O. J. Gillard) for the Crown.

Written judgments were delivered which, so far as they related to the subject of this report, were as follows:—

[After stating that the case was stated pursuant to s. 72 of the Judiciary Act 1903-1946 upon the application of persons who were accused of offences against the Black Marketing Act and that the proceeding in which the case was stated was a prosecution in the High Court upon an indictment which contained eight counts, the judgment proceeded:—]

There were three accused persons, Neal, Regos and Morgan. They pleaded not guilty. Neal was acquitted on all counts. Regos and Morgan were found guilty on the eighth count and not guilty on the other counts. The eighth count was a count for omitting to keep proper books and accounts as required by reg. 49 of the National Security (Prices) Regulations. It was objected that an omission to comply with reg. 49 had not validly been made an offence under the Black Marketing Act.

The Black Marketing Act, s. 3, provides that for the purposes of the Act "black marketing" means certain acts or omissions specified in pars. (a) to (i). These paragraphs relate to selling &c. goods at a greater price than the maximum price fixed under regulations made under the National Security Act, and various other contraventions of those regulations. Some of the paragraphs relate to commercial dealing in goods, but they relate to many other acts or omissions; for example par. (b) relates to services; par. (c) includes services as well as goods; par. (d) relates not only to selling &c. goods, but also to taking into possession or parting with the possession of goods; par. (e) is concerned with the delivery of goods; par. (f) relates to the production, manufacture or treatment of goods; par. (g) includes moving goods vested in the Commonwealth under the regulations; par. (h) relates to dealing with any licence, ration ticket, ration document or ration coupon; and par. (i) relates to making or uttering counterfeit or forged licences &c.

Section 3 provides that, for the purposes of the Act, "black marketing" means any of the acts or omissions specified in pars. (a) to (i) (all of which involve contravention of the regulations) "and includes any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations, which is declared, by regulations made under this Act, to be black marketing; and the Regulations means any regulations made (whether before or after the commencement of this Act) under the National Security Act 1939 or under that Act as subsequently amended, and includes any orders made under any such regulations."

The Defence (Transitional Provisions) Act 1946 amended the concluding words so that they now are as follows:—"the Regulations means any regulations in force by virtue of the Defence (Transitional Provisions) Act 1946 and includes any orders in force by virtue of that Act or made under any such regulations." The National Security (Prices) Regulations were continued in force until 31st December 1947 by the Defence (Transitional Provisions) Act, s. 6.

Thus s. 3 adds to the specific offences mentioned in pars. (a) to (i) other acts or things done or omitted to be done and any other conduct in contravention of the regulations if declared by regulations made under the Act to be black marketing.

Section 17 of the Act provides that "the Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for giving effect to this Act, and, in particular, for" (inter alia) "(a) declaring any act or thing done or omitted to be done, or any conduct, in contravention of the Regulations to be black marketing."

By the Black Marketing Regulations, Statutory Rules 1943 No. 274, as amended by Statutory Rules 1945 No. 114, reg. 3, it was provided: "It is hereby declared to be black marketing for any person, in contravention of regulation 49 of the National Security (Prices) Regulations, to omit to do any act which the person is required by that regulation to do or to fail to comply with any direction given under that regulation."

Regulation 49 of the National Security (Prices) Regulations requires that "every person who in the course of, or for the purposes of, or in connexion with, or as incidental to, any business carried on by him—(a) produces, manufactures, sells or supplies any goods whatsoever; or (b) supplies or carries on any service whatsoever, shall, for the purposes of these regulations keep proper books and accounts."

The accused were charged with an offence against this provision as an offence under the Black Marketing Act by virtue of the declaration contained in the Black Marketing Regulations.

The first question in the first case stated is:—"Did the provisions of the Black Marketing Act ... authorize the making by the Governor-General in Council of reg. 3 of the Black Marketing Regulations?"

It was contended for the accused that reg. 3 of the Black Marketing Regulations was invalid because it was not authorized by the Black Marketing Act, s. 3. This argument was based upon the contention that the ejusdem-generis rule should be applied to the following words in s. 3:—"any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations, which is declared, by regulations made under this Act, to be black marketing." It was argued that these words should be restricted so as to be limited to acts or things of the same nature or kind as those specified in pars. (a) to (i) of s. 3.

Section 3 provides an example of a list of specific acts or omissions followed by general words. All the specified acts or omissions are contraventions of the regulations and the general words add such other contraventions of the regulations as may be declared. It is argued that the general words should be regarded as applying only to acts and omissions of the same nature or kind as previously specified acts, i.e., that they should not be construed as covering any contravention of the regulations which might be declared but as limited to some particular class or genus of such contraventions.

The ejusdem-generis rule is sometimes stated in very broad terms as, for example, by Lord Campbell in R. v. Edmundson[1]—"Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified." But in more recent cases a very different view has been taken of the rule as, for example, in Anderson v. Anderson[2], where it was said in the Court of Appeal that "prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before"[3]. The ejusdem-generis rule is a rule of construction only; that is, it is designed to assist in ascertaining the intention of Parliament in the case of a statute and of the parties to a document in other cases (Thorman v. Dowgate Steamship Co. Ltd.[4]).

The rule is that general words may be restricted to the same genus as the specific words that precede them (Thames & Mersey Marine Insurance Co. Ltd. v. Hamilton, Fraser & Co.[5]). Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. In Tillmanns & Co. v. S.S. Knutsford Ltd.[6], it was pointed out that "Unless you can find a category there is no room for the application of the ejusdem-generis doctrine"—per Farwell L.J.[7]: see also per Vaughan Williams L.J.[8] and per Kennedy L.J.[9]. In Mudie & Co. v. Strick[10], Pickford J. said: "You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus. If you cannot do this, then ... you must read all the particular words separately, and take the general words separately also"[11]. In S.S. Magnhild v. McIntyre Bros. & Co.[12], there is a full discussion of the rule by McCardie J. in which it is clearly shown that where it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things "possess some common and dominant feature" so that they can be described as constituting a genus distinguished by that feature.

Counsel for the accused were, it appeared to me, in considerable difficulty in endeavouring to specify the genus constituted by pars. (a) to (i) of s. 3 of the Black Marketing Act. Those paragraphs relate to acts and omissions of very different kinds, ranging from buying and selling of goods, supply of services, wrongful dealings in goods to which restrictions apply, to the production, manufacture and treatment of goods, the unlawful delivery of goods, the removal of goods acquired by the Commonwealth and misuse of ration tickets, of coupons, and forging such documents. All the acts and omissions mentioned possess the common characteristic of being contraventions of the National Security Regulations, but it is difficult to see what other "common and dominant feature" they possess. Counsel for the accused argued in the court below that all the acts and omissions mentioned could be subsumed under at least two categories; first, certain acts and omissions which involve "marketing," and secondly, matters incidental to the effective enforcement of regulations relating to marketing. In the reasons which he gave for his decision overruling the objection to the validity of the regulation in question, Dixon J. said that, even if this argument were adopted, Black Marketing reg. 3, introducing a breach of reg. 49 of the Prices Regulations as a black marketing offence, was authorized by the general words of s. 3 of the Black Marketing Act, because such a provision requiring the keeping of proper books and accounts was a provision incidental to the effective enforcement of the Prices Regulations. I agree with this decision.

The authorities to which I have referred show that the ejusdem-generis rule can be applied only where there is a genus to which all the acts or things specifically mentioned can be assigned. It is not sufficient to show that there are two or more such genera—and that is all that can be shown in the present case. In my opinion no single relevant genus has been or can be defined in the present case, and for this reason the argument on behalf of the accused fails.

But, further, in my opinion the terms of the Black Marketing Act show that it was the intention of the legislature to give to the Executive Government the fullest power of extending by regulations (which Parliament could disallow if it thought proper) the category of black-marketing offences within the limits, but only within the limits, of offences created by National Security Regulations. This intention appears in the first place from the very wide generality of the words which follow pars. (a) to (i). The words are not only "any other act or thing done, or omitted to be done," but also "any conduct, in contravention of the Regulations." These words appear to me to be specially devised for the purpose of making a wide possible addition to the heterogeneous, and not homogeneous, list contained in pars. (a) to (i) of s. 3 of the Act.

There is another provision in the Act which, in my opinion, strongly supports the conclusion which I have stated. Section 17 not only provides in the ordinary form that the Governor-General may make regulations not inconsistent with the Act for giving effect to the Act, but also that the Governor-General may make regulations "in particular, for—(a) declaring any act or thing done or omitted to be done, or any conduct, in contravention of the Regulations to be black marketing." By this section a particular power is given to declare any contravention of the regulations to be black marketing. The words conferring this power do not follow any list of specific matters and there is no room for the application of any ejusdem-generis rule to them. There is no reason for depriving these words of their full natural effect. Thus the Governor-General may under s. 17 declare any contravention of the regulations to be black marketing, and thereupon such a contravention becomes an offence against the Act under s. 3.

Finally, the general words of s. 3 are not words which merely add some vague undetermined class of acts to the acts which have been specifically defined in the early part of the section. The acts which may become black marketing by reason of the general words are only such contraventions of the regulations as are declared by regulations to be black marketing. Thus Parliament has expressly left it to the discretion of the Executive to determine whether any other contraventions of the regulations than those specified in s. 3 should be dealt with under the Black Marketing Act so as to become subject to the special penalties prescribed in s. 4 and other sections of the Act. It was evidently the view of Parliament when the Act was passed in October 1942 that an occasion might arise when prompt action would be required to deal with some particular contravention of the National Security Regulations which might be dangerous to the national safety. Parliament trusted the Executive Government to act reasonably in the exercise of the extensive powers conferred upon it by the Act. It was suggested in argument that it would be unreasonable for Parliament to confer a power upon the Executive Government so wide that it could be exercised in cases to which it would be unreasonable to apply it. But, when legislation is within power, it is entirely for the legislative body to determine whether a particular provision is reasonable or not, and it is not for any court to say that, because the Executive might exercise the power conferred by the Act in an unreasonable manner, the court should find some means of limiting the power by construction. This Court has no general power of supervising legislation on the ground that it disagrees with the opinion of the legislature that a particular provision is reasonable. It may be observed that Parliament took the precaution of enacting that declarations of offences under National Security Regulations as black-marketing offences should be made by regulations, not by proclamations. Thus the declarations could be disallowed by Parliament if it disagreed with them (Acts Interpretation Act 1901-1941, s. 48). A further safeguard against unreasonable action is to be found in the provisions of s. 4 (4) requiring not only the consent of the Attorney-General to any prosecution under the Act, but also the report and advice of a committee of responsible officers.

[On this branch of the case the judgment concluded with the expression of his Honour's opinion that the question reserved should be answered: Yes.]

Prosecutions upon indictments gave rise to this case, which was stated pursuant to s. 72 of the Judiciary Act 1903-1946 at the instance of Regos and Morgan, who were accused of offences against the Black Marketing Act and found guilty on a count in the indictment for omitting to keep proper books and accounts as required by reg. 49 of the National Security (Prices) Regulations. On behalf of the accused it was submitted to the learned judge at the trial that the eighth count, which is the material count in the indictment, did not disclose an offence under the Black Marketing Act. The ground of this submission was that this Act did not specifically make the omission to keep books and accounts an offence, and that the general words authorizing the Governor-General to add to the category of black-marketing offences should be restrained by construction and, properly restrained, did not extend to keeping or failing to keep proper books and accounts. The concluding portion of s. 3 of this Act, which follows a list of specific offences, provided that black marketing shall include "any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations, which is declared, by regulations made under this Act, to be black marketing." Section 17 (a) of the Black Marketing Act empowered the Governor-General to make regulations not inconsistent with the Act declaring any act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations to be black marketing. The contention is that the words "any other act or thing done, or omitted to be done, or any conduct, in contravention of the Regulations" should not be literally interpreted but should be construed as related only to things of the same kind as are enumerated in the list of specific offences. In other words, it was argued that the general words should be construed as applying ejusdem generis with the particular instances which precede them. If so construed the accused say that the power would not cover the omission to keep books and accounts. Proceeding on the contrary assumption the Governor-General by reg. 3 of the Black Marketing Regulations declared it to be black marketing to do or omit to do any act in contravention of reg. 49 of the National Security (Prices) Regulations. The eighth count of the indictment was laid under these provisions. The learned judge, although disposed to think that a restrictive construction of the relevant words in s. 3 might be adopted, decided that a restriction could not be placed upon them narrow enough to exclude what was done by reg. 3 of the Black Marketing Regulations. His Honour accordingly allowed the count to stand and in the event both accused were convicted. The argument for a narrow interpretation of the power begins by calling attention to the extravagance of the supposition that it was intended that any contravention of any regulation contained in the two stout volumes the sight of which has become so familiar to the Court might be converted into black marketing and so became punishable under the drastic penal clauses of that statute. From this beginning the argument proceeds to an examination of the specific offences defined by pars. (a) to (i) of s. 3. The ingenuity of counsel was employed in extracting from the elements of these offences some logical category which by a judicious use of the ejusdem-generis rule would exclude an offence of improper bookkeeping and accounting. Having listened carefully to the argument I am clearly of opinion that it cannot be done. The rule invoked is nothing but a guide of construction, and nothing could be clearer than that the intention of the legislature was to enable the Executive to amplify the list of black-marketing offences as experience and judgment might dictate. No doubt it is true that no one contemplated the use of the power to cover the whole field of National Security by regulation, but it is apparent that the draftsman felt unsure about the sufficiency of his list and trusted to the wisdom and discretion of the Executive to add to it when necessary. A reason for feeling unsure on such a subject is to be found in the extraordinary ingenuity and resource of those who seek to defeat or evade a control relating to rationing of goods or the repression of a rise in price in goods or services. Primarily one might conjecture that the power was directed to everything that helped in the suppression or detection of offences against the regulation of the distribution and price of goods and services. I doubt very much whether there are any materials in this legislation for restricting the meaning of s. 3 by construction: but however that may be I am quite clear that a restriction cannot be placed upon the provisions so narrow that it puts it beyond the power of the Executive to establish contravention of reg. 49 (1) of the National Security (Prices) Regulations as black-marketing offences. The commonest experience shows that failing to keep books, "cooking" books or destroying books is found by an offender against trading laws to be necessary to the concealment of his offences and is a usual precaution taken by those who have traded unlawfully whether the law is that of black marketing or of war-time controlling.

[After describing the case as a Crown case reserved pursuant to the Judiciary Act 1903-1946 and setting out the question reserved, the judgment on this branch of the case concluded as follows:—]

That question should be answered in the affirmative for the reasons which I have stated at large in the case of Cody v. J. H. Nelson Pty. Ltd.[13] and need not repeat.

[His Honour expressed agreement with the reasons for judgment prepared by the Chief Justice and with the answer which the Chief Justice proposed to the question reserved.]

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

[1] (1859) 28 L.J. M.C. 213, at p. 215.

[2] (1895) 1 Q.B. 749.

[3] (1895) 1 Q.B., at p. 753.

[4] (1910) 1 K.B. 410, at p. 419.

[5] (1887) 12 App. Cas. 484, at p. 490.

[6] (1908) 2 K.B. 385.

[7] (1908) 2 K.B., at p. 403.

[8] (1908) 2 K.B., at p. 395.

[9] (1908) 2 K.B., at p. 409.

[10] (1909) 100 L.T. 701.

[11] (1909) 100 L.T., at p. 703.

[12] (1920) 3 K.B. 321.

[13] Post, p. 629.

High Court of Australia

R v Regos & Morgan [1947] HCA 19; (1947) 74 CLR 613 (9 June 1947)

HIGH COURT OF AUSTRALIA