Morgan v Commonwealth [1947] HCA 6; (1947) 74 CLR 421 (14 April 1947)

These are two cases stated in actions by Arthur Edward Morgan against the Commonwealth of Australia and, in one case, the Rationing Commission and, in the other case, the Commonwealth Prices Commissioner. The Rationing Commission operates under the National Security (Rationing) Regulations, and the Prices Commissioner under the National Security (Prices) Regulations, both sets of regulations being made under the National Security Act 1939-1946. In the actions the plaintiff claims declarations that certain meat Rationing Orders and certain meat price fixing Orders which apply in Victoria are invalid because they infringe the prohibition contained in s. 99 of the Constitution of the Commonwealth. Section 99 is in the following terms:—"The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof."

The plaintiff and other persons are being prosecuted upon indictments in the High Court, in the first place for conspiracy to effect an unlawful purpose, namely the supply of coupon-meat to other persons otherwise than in accordance with the provisions of Rationing Order No. 37 as amended, and in the second place for offences of black marketing under the Black Marketing Act 1942, the alleged offences consisting in selling porterhouse and rump steak and veal and beef at greater prices than the maximum prices fixed by Prices Regulation Order No. 1817 as amended by Prices Regulation Orders up to and including Prices Regulation Order No. 2106. The plaintiff in these actions claims that Rationing Order No. 37 and Prices Order No. 1817 and the amendments of them are invalid as contravening s. 99 of the Constitution. The Orders which are challenged are applicable only to Victoria. They contain provisions which, at all relevant times, have differed from provisions in other Orders dealing with the same subject matter which have been applicable in other States than Victoria or in parts of such other States.

Rationing Order No. 37 provides that a person shall not supply certain meat declared to be coupon-meat to another person otherwise than upon the surrender to him of the appropriate number of coupons in accordance with the Order. Three points are taken in respect of this Order.

First, the Order provides that the provisions relating to the surrender of coupons shall not apply in any "special meat area." The Order (par. 2) defines "special meat area" as meaning any part of the Commonwealth included in any of the areas specified in the fourth schedule. The areas specified in the schedule are portions of the States of New South Wales, South Australia, Queensland, Western Australia, and the whole of the Northern Territory. Thus in the special meat areas no coupons are required. Those special meat areas are parts of States. In the areas which are not special meat areas coupons are required and those areas are the whole of the States of Victoria and Tasmania and parts of the other States of the Commonwealth.

Secondly, the Rationing Order prohibits the supply by wholesale of coupon-meat in cuts or forms not corresponding with descriptions contained in the Second Schedule. The cuts or forms prescribed in Queensland are, in certain cases, different from those prescribed in the case of other States.

Thirdly, the result of this provision is that the scale of coupon requirements in Queensland is different from that which applies in other States.

It is contended that these variations show that the Victorian Order gives preference to a State or part thereof over other States or parts thereof contrary to s. 99 and is therefore void. The Victorian Order applies only to the supply of meat in Victoria. It cannot be said to have any operation in any other State, and therefore the contention must be either (1) that the Order, considered in relation to the Orders applying in other States, gives preference to Victoria over other States or parts thereof; or (2) that the Order imposes some disadvantage upon Victoria or parts thereof as compared with other States or parts thereof. It was not made very clear in argument whether it was contended that the Order was a preference to Victoria over other States or a preference to other States over Victoria.

The Victorian Prices Order the validity of which is challenged is No. 1817 as amended from time to time down to Order No. 2106. This order fixes and declares the maximum prices at which meat of the cuts or classes specified in the Fifth Schedule may be sold by retail in various parts of Victoria. The operation of the Order as originally made may be illustrated by reference to fillet steak, for which four retail prices were fixed—1s. 10d. a pound in the Melbourne metropolitan area, and 1s. 8d., 1s. 9d. and 1s. 10d. in other areas in Victoria. In New South Wales, on the other hand, by an Order which was in force at the same time as No. 1817, the retail prices for fillet steak were 2s. in the Sydney metropolitan area and 1s. 9d. elsewhere. The retail prices fixed for the same meat in other States also varied, running down to 1s. 3d. in certain parts of Tasmania. The retail prices were varied by amending Orders, but at all times different prices were fixed for the same meat in different States and parts of different States.

Order No. 1817 also fixed wholesale prices of meat in Victoria; for example, ox beef—the maximum price to 650 1bs. was 53s. In other States the price was fixed at varying rates, e.g. 5½d., 5d., 6¾d. per 1b. The wholesale prices were altered by amending Orders, but at all times the prices for the same meat varied as between different States and parts of different States.

The contention for the plaintiff was that these variations as between States and parts of States constitute preferences which are prohibited by s. 99 and that therefore the Victorian Order No. 1817 and the various Orders amending it are invalid.

In order to establish these contentions the Orders in question or the regulations under which they were made must be shown to be laws or regulations of trade and commerce within the meaning of s. 99 of the Constitution. Both the Rationing and the Prices Regulations and the Orders thereunder can be supported as valid legislation only under the legislative power conferred by s. 51 (vi) of the Constitution—the power to legislate with respect to the naval and military defence of the Commonwealth and the several States. The Commonwealth Parliament also has power under s. 51 (i) to make laws with respect to "Trade and commerce with other countries, and among the States." It was contended for the plaintiff that the operation of s. 99 is not limited to laws which are authorized by the power conferred in s. 51 (i), but that s. 99 applies to other laws or regulations which are laws or regulations of trade or commerce, whatever the constitutional power may be in pursuance of which or under which they have been enacted by the Commonwealth Parliament. It was contended that preferences to States and parts of States appear on the face of the challenged Orders, that they are laws or regulations of trade or commerce and therefore must be held to be void.

The defendants on the other hand contended that the words of s. 99 and the context in which it appears show that s. 99 is intended to be limited to laws or regulations of trade and commerce which can be enacted by the Federal Parliament under what is called the trade and commerce power, that is, under s. 51 (i), and that s. 99 does not apply to laws or regulations which can be supported only under other powers, even though they have (as some of them in fact have) an effect upon or in relation to trade and commerce. The regulations and Orders under consideration in this case were made under the defence power and though they, or some of them, affect trade and commerce, they are, it was contended, exclusively defence legislation and could not be justified under s. 51 (i) as trade and commerce legislation. The argument for the defendants was that s. 99 has no application to laws made under the defence power or, indeed, under any power other than that contained in s. 51 (i).

Alternatively, it was contended for the defendants that the Rationing Regulations are not really laws or regulations of trade or commerce, even if those words are given their widest interpretation as including, not only laws made under s. 51 (i), but any other laws which deal with trade and commerce, under whatever power they are made. The argument was that the regulations are directed towards a fair distribution of commodities during a time of war emergency, and that, although they introduce a limitation upon commercial dealings, their real nature is that of an arrangement for the distribution of necessary or important commodities such as, in the present case, food. An arrangement for the fair distribution of food by a coupon system, though it affects trading in food, is not, it was contended, a law regulating trade and commerce. It was also argued, though not with as much force, that the Prices Regulations were directed to the prevention of inflation, and that the object was to prevent money losing its value rather than to fix prices to be observed as maximum prices in commercial dealings.

It was further argued for the defendants that the regulations and the Orders made under them did not give a preference to any State or part of a State over another State or part of a State. It was submitted that it was difficult, if not impossible, to identify the alleged preference, whether to wholesale or retail butchers or to consumers of meat, and that schemes for distribution of meat under a coupon system and for fixing prices which varied as between different States did not produce any clear and identifiable preference to any identifiable State or part of a State over any other identifiable State or part of another State.

It was also contended for the defendants that, even if the Orders appeared to give a preference on their face, the defendants should be allowed to show by evidence that this effect of the Orders was only an apparent effect, and that in fact they operated to bring about, not preferences between States or parts of States, but an equality of treatment in each State, regard being had to varying conditions which existed in the various States and parts of States with respect to the supply of and demand for meat, seasonal and market conditions, trade customs and practices and similar matters which differ from State to State.

It was not argued for the defendants that, if the differences as between States and parts of States were preferences, they were not preferences to a State or part of a State over another State or part of a State—except in the case of the "special meat areas" which it was contended, were a single Australian area and not a part or parts of States.

All the contentions to which we have referred appear in the pleadings in the actions. Dixon J., considering it desirable that the questions raised should be determined before the trial of the actions and before the trial of the plaintiff and others upon the indictments mentioned, has stated cases in each action in which he has submitted questions to the Court which inquire, in the first place, whether the Orders in question are laws or regulations of trade or commerce within s. 99 of the Commonwealth Constitution. Other questions inquire whether the facts alleged in the defences upon which the defendants propose to rely and which they wish to establish by evidence so far as judicial notice cannot be taken of them, are facts which can, as a matter of law, be considered by the Court in determining the questions whether the Orders are contrary to the provisions of s. 99.

(1)

There is no decision of the Court upon the question whether the words "law or regulation of trade, commerce, or revenue" in s. 99 include, so far as trade and commerce is concerned, laws made under a power other than the power conferred by s. 51 (i) to make laws with respect to trade and commerce with other countries and among the States. None of the decisions upon s. 99 have dealt with this point. In R. v. Barger[1] it was held by the majority of the Court that a law was not in its true nature a law of taxation, but that, if it were a law with respect to taxation, it infringed s. 99: See report[2]. It is clear that the words "law" and "revenue" in s. 99 include laws with respect to taxation. In Crowe v. The Commonwealth[3] the legislation under consideration related to the export and sale and distribution after export of Australian dried fruits, and was obviously a law which was a law with respect to trade and commerce with other countries enacted under s. 51 (i) of the Constitution. In Elliott v. The Commonwealth[4] the law in question was the Transport Workers (Seamen) Regulations, which applied only in inter-State trade and commerce. The validity of a similar law as applied to waterside workers had been upheld in Huddart Parker Ltd. v. The Commonwealth[5] and in Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan[6]. This law was also a law made under s. 51 (i) of the Constitution. Since the enactment of the National Security Act 1939 this Court has on many occasions considered the validity of Prices Regulations and in many cases the Orders made under the regulations have prescribed different prices for the same commodities in different States; but until the present case the Court has not been called upon to determine whether or not such variations constituted an infringement of s. 99. It is now, however, necessary to determine this question.

(2)

The Constitution, in s. 51 (i), confers an express power upon the Commonwealth Parliament to make laws with respect to trade and commerce with other countries and among the States. This provision confers no power to legislate with respect to intra-State trade. It gives no power to make laws with respect to trade between different parts of the same State. Accordingly it was not necessary to provide against preferences to parts of a State over other parts of the same State, as no law could validly be made under s. 51 (i) with respect to trade between different parts of the same State. Section 99 prohibits preferences to one State or part of a State over another State or part thereof, but does not purport to deal with preferences within a single State. This circumstance shows a connection between s. 99 and s. 51 (i).

(3)

There is, however, no such circumstance to show a connection between s. 99 and the other legislative powers referred to in s. 51. There are many powers of the Commonwealth Parliament besides the defence power under which laws may be passed which affect trade and commerce, not only inter-State but also intra-State. Reference may be made to the powers to make laws with respect to (s. 51 (ii)) taxation—laws might be made under this power prohibiting commercial transactions, whether inter-State or intra-State, which were designed to evade taxation or which would interfere with the application of a system of taxation; s. 51 (iii)—bounties on the export of goods; s. 51 (v)— postal, telegraphic, telephonic, and other like services; s. 51 (ix)—quarantine (under this power there can be control of the movement of goods in the interests of health); s. 51 (xii)—currency, coinage, and legal tender; s. 51 (xv)—weights and measures; s. 51 (xvi)—bills of exchange and promissory notes; s. 51 (xvii)—bankruptcy and insolvency; s. 51 (xviii)—copyrights, patents of inventions and designs, and trade marks. Under all these powers legislation may be enacted which may have an important effect in relation to trade and commerce. A law with respect to patents may prohibit the sale of patented articles without a licence from the person entitled to the patent. Such a law would be effective as a law with respect to patents in relation both to inter-State and intra-State sales. It would be quite irrelevant to consider the law in relation to the power contained in s. 51 (i) with respect to trade and commerce, because the law would obviously be a law with respect to patents, and so considered would (unless it infringed some applicable constitutional prohibition) be valid, being completely unaffected by the limitation of the trade and commerce power to foreign and inter-State trade.

Under these powers, as well as under the defence power, laws may be passed which affect trade and commerce but which if (as might validly be the case) they applied to intra-State trade and commerce could not have been passed under s. 51 (i). The preferences forbidden by s. 99 are plainly preferences in favour of and against States. They are not preferences in intra-State trade. If s. 99 were construed as applying to all laws affecting trade and commerce passed under any of the powers contained in s. 51, including the defence power, there would be an unexplained gap as to intra-State preferences. But if the expression "law or regulation of trade, commerce" in s. 99 is limited to laws which could be enacted under s. 51 (i), there is no such hiatus in the Constitution. It would, indeed, be a remarkable thing for a Constitution to provide that laws for the defence of a country, at a time possibly of the most critical threat to national existence, should be limited by a requirement that they should not have the effect of giving some commercial preference (Crowe v. The Commonwealth[7]) to parts of the country over other parts. It might become necessary to close down all or some trade and commerce in an invaded or threatened area, without any consideration of any result in trading and commercial preference as between States.

Thus the terms of s. 99 show a connection of the section with the legislative power with respect to trade and commerce. The only express power to make laws with respect to trade and commerce as the subject matter of the law is to be found in s. 51 (i). In determining whether a law is such a law it is necessary to consider the substance of the legislation (Barger's Case[8]). It is irrelevant to consider the indirect effect of a law for the purpose of determining whether it is proper to refer it to a particular category (Attorney-General for Ontario v. Reciprocal Insurers[9] and see cases cited in South Australia v. The Commonwealth[10]).

The regulations and Orders the validity of which is challenged in this case are provisions with respect to defence, but they should not be held to be laws or regulations of trade and commerce within the meaning of the words in s. 99, although they produce effects in relation to trade and commerce because they could not have been made by virtue of the legislative power conferred by s. 51 (i).

(4)

This view is reinforced by consideration of the context and setting of s. 99 in the Constitution. It is included in Chapter IV. of the Constitution—Finance and Trade—and is one of a group of sections which deal with trade or commerce. The other associated sections consist of provisions all of which either define, or limit in some way, the exercise of the power of the Commonwealth Parliament in relation to trade and commerce—a power which, as already stated, is derived from s. 51 (i) of the Constitution and is therefore limited to inter-State and foreign trade and commerce. The following phrases are used in this group of sections: s. 98—"laws with respect to trade and commerce"; s. 99—"any law or regulation of trade, commerce, or revenue"; s. 100—"any law or regulation of trade or commerce"; s. 101—"provisions of this Constitution relating to trade and commerce and ... all laws made thereunder"; s. 102—"any law with respect to trade or commerce." These phrases vary in some particulars but they are all intended to refer to the same subject matter, namely laws which the Parliament can make under the power conferred upon it by s. 51 (i).

It has been held that this is the case with respect to s. 98, which provides that "The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping." In Newcastle & Hunter River Steamship Co. Ltd. v. Attorney-General (Cth.)[11] it was held that this section did not confer power upon the Federal Parliament to legislate with respect to navigation and shipping generally, but that the section operated within the power conferred by s. 51 (i), so that s. 98 conferred power to deal with navigation and shipping only so far as navigation and shipping was relevant to inter-State and foreign trade or commerce.

Section 100 is in the following terms:—"The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation." This provision raises a question as to the relation between it and the defence power which is not unlike that raised by s. 99. The prohibition contained in the section would, if it were construed as limiting the exercise of the defence power, limit it only in cases where the law of defence was also a law or regulation of trade or commerce and not in other cases. Such a limitation could find no justification in reason in that case and similar considerations apply in the case of s. 99.

In s. 101, which prescribes the powers of the Inter-State Commission, the reference to "the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder" is most obviously a reference to legislation enacted under s. 51 (i).

So also in s. 102 the provision that the Parliament may "by any law with respect to trade or commerce" forbid certain railway discriminations plainly has reference to laws made under the power conferred by s. 51 (i). Section 102 proceeds to impose certain limitations upon the exercise of the power.

This whole group of sections, including s. 99, should be read as applying only to laws which can be made under the power conferred upon the Commonwealth Parliament by s. 51 (i).

The provisions under consideration in these proceedings are not laws which could have been so made. They were made and could be made only under another power, namely the defence power. To such laws s. 99 has no application. Some day the question may arise whether a law which may be supported under s. 51 (i) and independently under some other power, such as external affairs, may fall under s. 99, but it is a question which does not arise in this case.

The first question submitted in the Rationing Regulations Case is—"Is each of the said Rationing Orders No. 37, No. 40 and No. 47 referred to in the statement of claim a law or regulation of trade or commerce within s. 99 of the Constitution of the Commonwealth?" The first question submitted in the Prices Regulations Case is—"Is Prices Regulation Order No. 1817 as amended by Prices Regulation Orders down to and including Prices Regulation Order No. 2106 referred to in the statement of claim a law or regulation of trade or commerce within s. 99 of the Constitution of the Commonwealth?" The result of the considerations mentioned is that each of these questions should be answered in the negative.

These answers produce the result that s. 99 is not applicable to the regulations or Orders. The question whether or not they give a preference prohibited by s. 99 therefore cannot arise. Questions 2, 3 and 4 in the Rationing Regulations' Case and questions 2 and 3 in the Prices Regulations' Case inquire whether certain facts alleged in the defences to the actions are proper in law to be considered in determining whether the Orders are contrary to s. 99. If s. 99 does not apply to the Orders these questions do not arise. Thus it is unnecessary to answer the questions mentioned.

In the Prices Regulations' Case question No. 5 inquires whether the regulations or Orders are invalid as inconsistent with s. 92, but this matter was not argued and it is unnecessary to answer the question.

Question No. 6 in the Rationing Regulations' Case is as follows:—"Was the defendant Rationing Commission authorized or empowered by the National Security (Rationing) Regulations to make an order relating to rationing of meat which was not applicable generally throughout Australia?" The answer to this question depends upon the true interpretation of regs. 24, 25 and 26 of the Rationing Regulations. It is a question which relates only to the construction of those regulations, and not to any matter of constitutional power.

Regulation 24 (1) provides that "The Minister may, by notice in the Gazette, declare any goods or class of goods to be rationed goods for the purposes of these Regulations," and reg. 24 (3) provides that "Any declaration by the Minister in pursuance of this regulation may be made generally or in respect of any part of Australia or any proclaimed area." Regulation 26 provides that the Commission may, from time to time, declare that any area specified shall be a proclaimed area. Thus the Minister is given power to declare goods to be rationed goods either generally or in respect of parts of Australia or any proclaimed area, but the power of proclaiming areas is vested in the Commission. The Minister has proclaimed meat to be rationed goods generally. It is contended that, as the Commission has not proclaimed any area and as the declaration by the Minister was general, the Commission has no power to deal differently with meat in different parts of the Commonwealth.

There are two answers to this contention. In the first place, even where a declaration that goods are rationed goods is made generally, there is no reason for treating such a declaration as prohibiting variations in Orders of the Commission with respect to goods within different parts of Australia. Upon the true construction of the regulations the position is that the general declaration of the Minister gives power to the Commission to make Orders with respect to goods as the Commission thinks proper within the area to which the declaration applies, but does not limit the Commission by preventing any differentiations of treatment within that area.

Further, however, reg. 25 provides that, subject to certain restrictions, including any directions of the Minister, the Commission may, by order published in the Gazette "direct, prohibit, restrict, control or regulate in any other manner whatsoever—(a) the purchase, acquisition, transfer, possession, use, branding, packing, storage, supply, distribution, advertising, sale and disposal of rationed goods." Under this power the Commission may restrict, control or regulate the purchase, acquisition and sale of rationed goods. There is no prohibition against making the nature of the direction, control, or regulation dependent upon considerations of locality if such considerations are bona fide regarded by the Commission as relevant to the discharge of the functions under the regulations. Question No. 6 should be answered—Yes.

Cases stated in two actions, Numbers 4 and 5 of 1947, pursuant to Order XXXII. rule 2, Order XVII. rule 26 and the Judiciary Act.

The statement of claim in each case alleges that during the years 1944 and 1945 until the month of April 1946 the plaintiff Morgan carried on business in Victoria as a wholesale and retail butcher and small goods manufacturer in partnership with his wife under the name of William Say & Co. In action No. 4 of 1947 it was alleged that on 20th November 1946 the Attorney-General for the Commonwealth filed an indictment in this Court against the plaintiff and certain of his employees whereby he charged that the plaintiff and his employees between 1st March 1945 and 31st March 1946 conspired to effect an unlawful purpose, namely, the supply of coupon-meat otherwise than in accordance with the provisions of Rationing Order No. 37, as amended. And in action No. 5 of 1947 that the plaintiff and his employees between 9th and 19th February 1946 did acts each of which constituted black marketing as defined in the Black Marketing Act 1942.

And the claim in action No. 4 of 1947 was, inter alia, that Rationing Order No. 37, as amended, was void and in action No. 5 of 1947 that Prices Regulation Order No. 1817, as amended, was void and alternatively contrary to the provisions of s. 99 of the Constitution.

In my opinion, neither of these actions are competent (cf. Victorian Chamber of Manufactures v. The Commonwealth (Prices Regulations)[12]). An allegation that the Attorney-General has filed indictments against the plaintiff and others is wholly insufficient to sustain them. The plaintiff does not allege that the regulations prevent or interfere with any business carried on by him. All he alleges is that during the years 1944 and 1945 and until the month of April 1946 he carried on a business and that he stands indicted by the Attorney-General for offences alleged to have been committed by him whilst carrying on business in 1946.

Civil proceedings for the purpose of defence to criminal prosecutions by the Attorney-General or to render those prosecutions abortive are novel and open to great abuse. The present actions will not, I hope, form a precedent for similar actions in the future. In my opinion they ought to have been stayed for all the matters now raised were open by way of defence in the criminal prosecutions. However cases have been stated.

The first question stated in action No. 4 of 1947 is:—Is each of the Rationing Orders No. 37, No. 40 and No. 47 referred to in the statement of claim a law or regulation of trade or commerce within s. 99 of the Constitution of the Commonwealth?

And in action No. 5 of 1947:—Is Prices Regulation Order No. 1817, as amended by Prices Regulations Orders down to and including Prices Regulation Order No. 2106, referred to in the statement of claim, a law or regulation of trade or commerce within s. 99 of the Constitution of the Commonwealth?

Both these questions should be answered in the negative because the law or regulation referred to in s. 99 is a law or regulation made by the Commonwealth with respect to trade and commerce with other countries and among the States. The section should be so construed because the legislative power of the Commonwealth is to make laws with respect to trade and commerce with other countries and among the States and because the preference prohibited is of one State or part of a State over another State or part thereof. But I do not mean that the law must necessarily and upon its face purport to have been made under the power contained in s. 51 (i) for it is possible that a law of trade and commerce with respect to inter-State and foreign trade can be made under other legislative powers. It must, however, be a law or regulation of the character described in s. 51 (i). Thus a law or regulation of revenue which is also referred to in s. 99 need not necessarily be made under the taxing power for the Commonwealth has other sources of revenue but the preference contemplated by s. 99 is in relation to inter-State and foreign trade.

The question whether a law or regulation is or is not a law or regulation of trade or commerce with other countries or among the States can only be determined by examining its character and its legal operation (Gallagher v. Lynn[13]).

The Rationing Orders which are attacked in these proceedings were made under the National Security (Rationing) Regulations pursuant to the National Security Act 1939-1946. The purpose of the regulations (reg. 3) is the defence of the Commonwealth and the more effectual prosecution of the war. And the Rationing Orders were made to the end that meat for consumption by the people of Australia should be rationed (See Rationing Order No. 37). A coupon system was established whereby retail and wholesale sales of meat can only be made upon production of coupons and in quantities specified in tables appropriate to the number of coupons mentioned in those tables. The quantities are not uniform throughout Australia and vary in the different States and also in different parts of the same State. But this is not a law or regulation of inter-State or foreign trade. It does not affect the movement of goods in inter-State or foreign trade but the consumption of goods in the various States and in different parts of the same State. That is a sufficient reason for a negative answer to the questions relating to the Rationing Orders. But I go further and say that the Rationing Orders are not in character or in legal operation laws or regulations of trade and commerce at all but laws or regulations relating to the consumption of goods.

The Prices Orders which are attacked in these proceedings were made under the National Security (Prices) Regulations pursuant to the National Security Act 1939-1946. The Orders fix maximum prices, wholesale and retail, at which meat may be sold in the various States and in different parts of those States. The prices are not uniform and vary in the different States and also in different parts of the same State. Again these Orders are not regulations of inter-State or foreign trade. They do not affect the movement of goods in inter-State or foreign trade but the maximum prices at which meat may be sold in the various States or different parts of those States. Their object was the protection of the public against rising prices in time of war. They are war measures and owe their validity to the defence power (Victorian Chamber of Manufactures v. The Commonwealth (Prices Regulations)[14]; Bendixen v. Coleman[15]; Fraser Henleins Pty. Ltd. v. Cody[16]). And they do not, any more than the Rationing Orders, regulate trade and commerce but only the maximum prices at which goods may be sold in different States or parts thereof.

Answers to Questions 2, 3, and 4, in action No. 4 of 1947 relating to the Rationing Orders thus become unnecessary.

A further question was added during argument:—Was the defendant Rationing Commission authorized or empowered by the National Security (Rationing) Regulations to make an Order relating to rationing of meat which was not applicable generally throughout Australia?

This question depends upon the proper construction of regs. 24 and 25 of the Rationing Regulations. It was contended that the Minister declares the rationing area and that the Commission's authority must be exercised throughout the area so declared, in this case, throughout Australia. But reg. 25 enables the Commission to regulate prices &c. "in any other manner whatsoever" which enables him to do so in any part of the area declared by the Minister.

This Question should be answered in the affirmative. Answers to questions 2 and 3 in the action No. 5 of 1947 relating to Prices Orders are also unnecessary in view of the answer to Question 1 in that action.

Morgan v. The Commonwealth (Rationing).—Questions in case answered as follows:—1. No, as to each of the said orders. 2 (a) (b), 3 (a) (b), 4, 5 (a) (b), unnecessary to answer. 6. Yes. Case remitted to Dixon J. Plaintiff to pay defendants' costs of case.

Morgan v. The Commonwealth (Prices).—1. No. 2 (a) (b), 3, unnecessary to answer. Case remitted to Dixon J. Plaintiff to pay defendants' costs of case.

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

[1] [1908] HCA 43; (1908) 6 C.L.R. 41.

[2] (1908) 6 C.L.R., at p. 78.

[3] [1935] HCA 63; (1935) 54 C.L.R. 69.

[4] [1936] HCA 7; (1936) 54 C.L.R. 657.

[5] [1931] HCA 1; (1931) 44 C.L.R. 492.

[6] [1931] HCA 34; (1931) 46 C.L.R. 73.

[7] [1935] HCA 63; (1935) 54 C.L.R. 69.

[8] (1908) 6 C.L.R., at p. 65.

[9] (1924) A.C. 328, at p. 337.

[10] [1942] HCA 14; (1942) 65 C.L.R. 373, at pp. 424 et seq.

[11] [1921] HCA 31; (1921) 29 C.L.R. 357.

[12] (1943) 67 C.L.R., at p. 343.

[13] (1937) A.C. 863, at p. 870.

[14] [1943] HCA 19; (1943) 67 C.L.R. 335.

[15] [1943] HCA 40; (1943) 68 C.L.R. 401.

[16] [1945] HCA 49; (1945) 70 C.L.R. 100.

High Court of Australia

Morgan v Commonwealth [1947] HCA 6; (1947) 74 CLR 421 (14 April 1947)

HIGH COURT OF AUSTRALIA