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High Court of Australia |
THE KING v. FOSTER [1949] HCA 16; (1949) 79 CLR 43
Constitutional Law (Cth.)
High Court of Australia
Latham C.J.(1), Rich(1), Dixon(1), McTiernan(1), Williams(1) and Webb(1) JJ.
CATCHWORDS
Constitutional Law (Cth.) - Defence - National security - Women's employment - Liquid fuel - Distribution - Control - Licences and ration tickets - Re-establishment of ex-members of the Forces - Dependants - Dwelling houses - Unoccupied or about to become unoccupied - Right of possession - Cessation of hostilities - Lapse of time - War-time legislation and regulations thereunder - Operation - Continuance - Validity of legislation and regulations - The Constitution (63 & 64 Vict. c. 12), s. 51 (vi.), (xxxi.) (xxxv.) (xxxix.) - Defence (Transitional Provisions) Act 1946-1948 (No. 77 of 1946 - No. 78 of 1947 - No. 88 of 1948) - National Security Act 1939-1946 (No. 15 of 1939 - No. 15 of 1946), s. 19 - Women's Employment Act 1942-1946 (No. 55 of 1942 - No. 77 of 1946), Sched. - Women's Employment Regulations 1946, reg. 6 - National Security (Liquid Fuel) Regulations (S.R. 1940 No. 293 - 1944 No. 113), reg. 51 - National Security (War Service Moratorium) Regulations (S.R. 1942 No. 437 - 1948 No. 109), regs. 30A-30AF.
HEARING
Sydney, 1949, April 4-7, 26-28;DECISION
June 6.The Court delivered the following written judgment:power after the actual fighting in a war has ceased. The questions relate to the sufficiency of the power to sustain the continuance in operation of: -
These three matters raise questions with respect to the scope of the defence
(i) The Women's Employment Regulations;Moratorium) Regulations. (at p80)
(ii) The National Security (Liquid Fuel) Regulations;
(iii) Regs. 30A to 30AF of the National Security (War Service
2. The fighting in the recent war ceased in September 1945, over three years ago. The power of the Commonwealth Parliament to make laws with respect to defence is contained in s. 51 (vi.) of the Constitution - a power to make laws with respect to - "The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth" and s. 51 (xxxix.) with respect to - "Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth." (at p81)
3. Section 51 (vi.) authorizes legislation with respect to the subjects of preparation for war, the organization, management and supply of armed forces and the conduct of war-like operations. During the actual course of war in the sense of prosecution and continuance of hostilities defence necessities may reasonably be considered to require extensive and detailed control of the community by the Commonwealth in relation not only to war service and war supplies, but also to industry in general, food, clothing and housing, and financial, economic and social conditions. Apart from the defence power, control of these matters is in most respects outside Commonwealth legislative power and within State legislative power. Such matters come within Federal power because legislation with respect to them is legislation upon "incidents in the exercise of" the power with respect to defence: see Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd. (1914) AC 237, at p 256 . All these matters when dealt with during the actual course of a war are related to the prosecution of defence activities. (at p81)
4. But laws cannot be supported as laws with respect to defence unless it appears that they are laws upon the subject of defence or the incidents of defence in the sense stated and therefore have a real connection with defence. This proposition was applied during hostilities in Victorian Chamber of Manufactures v. The Commonwealth [1943] HCA 22; (1943) 67 CLR 413 , and Crouch v. The Commonwealth [1948] HCA 41; (1949) 77 CLR 339 provides an instance of its application after the cessation of hostilities. (at p81)
5. When actual hostilities have ceased the scope of application of the defence power necessarily diminishes, but the cessation of hostilities leaves behind various matters which can legitimately be made the subject of Commonwealth legislation as being incidental to the execution of the defence power in the past. This Court has already held that after hostilities have ceased laws may be sustained under the defence power as valid because they deal with conditions which have been brought about by the exercise of the defence power itself (Dawson v. The Commonwealth [1946] HCA 41; (1946) 73 CLR 157 ; Miller v. The Commonwealth [1946] HCA 42; (1946) 73 CLR 187, at pp 211, 212 ; Real Estate Institute of New South Wales v. Blair [1946] HCA 43; (1946) 73 CLR 213, at pp 221, 225, 227, 229, 236 ; Sloan v. Pollard [1947] HCA 51; (1947) 75 CLR 445, at pp 449, 461, 464, 465, 471 ; Hume v. Higgins (1949) 78 CLR 116 ; Jenkins v. The Commonwealth [1947] HCA 41; (1947) 74 CLR 400 . Thus Federal regulation of matters which are brought within Federal power only by reason of the defence power need not necessarily cease with the actual fighting. (at p82)
6. It is upon this footing that the Parliament enacted first the National Security Act 1946 which fixed 31st December 1946 as the date when the operation of the National Security Act 1939-1943 should terminate and then followed it by the enactment of the Defence (Transitional Provisions) Act 1946. That statute took certain of the regulations which were originally made under the National Security Act and continued them in operation for a further period of twelve months. Many other regulations were revoked or allowed to expire. Those which were selected for continuance were retained almost unchanged. By the Defence (Transitional Provisions) Acts 1947 and 1948 the operation of many of these regulations was further extended for two further periods of twelve months each. In the cases now before us the continued operation of the Liquid Fuel Regulations and of regs. 30A to 30AF of the War Service Moratorium Regulations confessedly rests upon the Defence (Transitional Provisions) Act 1946-1948 and we think that there is no other enactment upon which the Women's Employment Regulations can depend for their continuance in force. Accordingly the first question which arises in relation to each set of regulations is whether the statute in so far as it purported to continue them in operation was validly enacted. (at p82)
7. The substantial argument in support of the regulations, the validity of the continuance of which is now challenged, is that the defence power authorizes, beyond the period of obvious war emergencies, laws which are directed to dealing with the consequences of war. The Constitution does not confer upon the Commonwealth Parliament any power in express terms to deal with the consequences of war, but there are some consequences which undeniably fall within the scope of the legislative power with respect to defence. Repatriation and rehabilitation of soldiers is an obvious case. Rebuilding of a city which had been destroyed or damaged by bombing would be another case. Laws relating to such matters would, however, be valid not merely because they dealt with consequences of a war, but because such laws can fairly be regarded as involved incidentally in a full exercise of a power to make laws with respect to defence. (at p83)
8. The effects of the past war will continue for centuries. The war has produced or contributed to changes in nearly every circumstance which affects the lives of civilized people. If it were held that the defence power would justify any legislation at any time which dealt with any matter the character of which had been changed by the war, or with any problem which had been created or aggravated by the war, then the result would be that the Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject. Nearly all the limitations imposed upon Commonwealth power by the carefully framed Constitution would disappear and a unitary system of government, under which general powers of law-making would belong to the Commonwealth Parliament, would be brought into existence notwithstanding the deliberate acceptance by the people of a Federal system of government upon the basis of the division of powers set forth in the Constitution. We proceed to state reasons why the Court should not ascribe an operation so far-reaching and, indeed, revolutionary, to the defence power. (at p83)
9. On the other hand, this Court, in discharging the duties imposed upon it by the Constitution, should be careful now and in the future (as it has been in the past in the many decisions with respect to the defence power) not to take a narrow view of the problems with which the Commonwealth Government has to deal when it is entrusted with the supreme responsibility of the defence of the country. (at p83)
10. The solution of the difficulties thus presented cannot be achieved by the application of any mechanical hard and fast rule. It is not possible to do more than lay down general principles and to apply them to the circumstances, varying in time and place, which are to be found in a modern community. In stating and in applying the principles we do not forget that in contemplation of law a state of war still exists, although armed conflict has long since been at an end. But this Court has never subscribed to the view that the continued existence of a formal state of war is enough in itself, after the enemy has surrendered, to bring or retain within the legislative power over defence the same wide field of civil regulation and control as fell within it while the country was engaged in a conflict with powerful enemies. The Court has not, of course, put out of consideration the fact that a state of peace has not yet been brought about by treaty or otherwise or the fact that enemy territory is still in Allied occupation. But we have treated these as but circumstances to be considered, that is, as factors in a total situation governing the practical application of the legislative power with respect to defence. They are, however, factors which can have little bearing upon the question whether any of the three regulations now challenged still remain in valid operation. It is a question which must depend upon that aspect of the defence power which authorizes legislation on matters incidental to the termination of hostilities, to the dis-establishment and disposal of arrangements set up in the course of prosecuting the war and to the restoration of the country to conditions of peace. In winding up the arrangements made for war and restoring a community organized for war to a state in which it can resume peaceful courses the legislature may continue for a space this or that war-time control. For it may be incidental to defence to continue the control and regulation of a particular subject matter for a time after the cessation of hostilities and also to maintain such control while legislative provision is being made for the necessary re-adjustment. The sudden removal of all controls is not demanded by the collapse of enemy resistance. Given regulations or controls may no longer find a justification in the considerations which the active prosecution of the war supplied. Yet the very fact that the controls or regulations have been established may create a situation which must be maintained for a reasonable time while some other legislative provision is made. But the Court must see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States and unless it can do so it is the duty of the Court to pronounce the enactment beyond the legislative power. (at p84)
11. No one doubts that the defence power will justify some legislation
directed to the transition period between war and peace and
some legislation
which operates even after the full establishment of peace. But it does not
place within Federal legislative authority
every social, economic or other
condition that might not have arisen except for the war. Where a state of
facts exists which though
outside the chief or central purpose of the power,
namely, the armed defence of the country, is from a practical point of view
entirely
due to war, legislation to deal with it may fall within the defence
power. For in that event such legislation may well be incidental
to the
exercise of the power. Examples have already been given in the case of the
returned soldier (whether wounded or ill or not)
and the destroyed city. But
there are many matters which result from a plurality of causes of which the
war is one. To point to the
war as a contributory cause can hardly be enough.
The recent war has produced some changes in almost every part of our lives.
This
fact does not mean that the whole life of man is to be regarded as a war
consequence. It is obvious that to determine whether any
given attempt to
continue laws or regulations in force for an extended period after the end of
hostilities is valid, it is necessary
to consider in detail the nature and
application of the particular measure. The present cases afford examples in
the Women's Employment
Regulations, the Liquid Fuel Regulations and regs. 30A
to 30AF of the War Service Moratorium REgulations.
R. v. Foster; Ex parte Rural Bank of New South Wales. (at p85)
12. In this matter the challenge is to the Women's Employment Regulations contained in the schedule to the Women's Employment Act 1942-1946, which, it is said, can no longer be sustained under the defence power of the Commonwealth Parliament. The Women's Employment Regulations were originally made as regulations under the National Security Act 1939-1940 - Statutory Rules 1942, No. 146. In 1943 in the case of Victorian Chamber of Manufactures v. The Commonwealth [1943] HCA 21; (1943) 67 CLR 347 , it was held that the regulations were valid as a means of getting women to work during the war in war industries and in essential civilian employment: see also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria; State of Victoria v. Foster [1944] HCA 16; (1944) 68 CLR 485 and Toowoomba Foundry Pty. Ltd. v. The Commonwealth [1945] HCA 15; (1945) 71 CLR 545 . (at p85)
13. The question arises with respect to an order made on 14th December 1948 by his Honour Judge Foster in the exercise of powers conferred by the regulations relating to the remuneration and working conditions of female employees of the Rural Bank of New South Wales. The regulations deal with what was, when they were adopted, a pressing war emergency arising from a deficiency of male labour. Regulation 6 (1) is in the following terms: - "(1) Where an employer proposes to employ, is employing, or has at any time since the second day of March, 1942, employed, females on work - (a) which is usually performed by males; (b) which, within the establishment of that employer, was performed by males at any time since the outbreak of the present war; or (c) which, immediately prior to the outbreak of the present war, was not performed in Australia by any person, the employer shall, unless an application in relation to that employment has already been made (whether prior to the date of disallowance of Statutory Rules 1942, No. 548, or after the commencement of this regulation), or a decision in respect of that work is in force, forthwith make application to the court for a decision in accordance with this regulation." The "court" means "the Commonwealth Court of Conciliation and Arbitration as constituted of a judge of that court designated by the Chief Judge for the purpose of these regulations": reg. 4. (at p86)
14. Regulation 6 provides that the court shall consider the employer's application and decide whether the work specified in the application is work specified in sub-reg. (1) and if so whether females may be employed or continue to be employed on the work. It is also provided that if the court decides that females may be employed or continue to be employed on the work it shall decide matters of hours, special conditions as to safety, health and welfare, and whether the employment of females should in the first place be on probation, and that the court may fix rates of remuneration. (at p86)
15. The regulations therefore provide that before an employer can employ females upon any of the work specified in reg. 6 (1) he must obtain a decision from the court that females may be so employed. The work specified is plainly work in respect of which difficulties in obtaining the necessary labour existed or were expected by reason of the existence of war conditions. If the regulations are still validly in operation they produce the result that no employer may in the year 1949 employ any women upon, inter alia, work which immediately prior to the outbreak of the war in September 1939 was not performed in Australia by any person. Accordingly, if a completely new industry is now established in Australia women cannot be employed in it unless a decision that they may be so employed is given by the court. They also produce the result that in 1949 no employer without having obtained such a decision may employ or continue to employ women upon work which was usually performed by males or upon work which within his establishment was performed by males at any time since 3rd September 1939. At a time when the conduct of war was deemed by Parliament and the Government to require the distribution and allocation of available labour so as to obtain the maximum of productive result for the manufacture of war supplies and essential civilian requirements, the relation of such provisions to defence is not difficult to understand. But all the reasons which provided at the time a foundation for this exercise of the defence power have now disappeared. What new factors or what situation came into existence which would form a ground justifying under the defence power legislation continuing the operation of the Women's Employment Regulations? It is open to much doubt whether the legislature has expressed sufficiently an actual intention to continue them in operation after 31st December 1946. By the combined operation of s. 5 of the Women's Employment Act 1942, s. 19 of the National Security Act 1939-1946 that is the s. 19 substituted by Act No. 15 of 1946, and s. 10A of the Acts Interpretation Act 1901-1948, we think that it is clear that the Women's Employment Regulations must have come to an end on 31st December 1946, unless some fresh provision were enacted expressing an intention to continue them further. Such a provision is found by those supporting the present operation of the regulations in the amendment made in s. 5 of the Women's Employment Act by s. 10 (1) and the Third Schedule of the Defence (Transitional Provisions) Act 1946-1948. The amendment so made consisted in the omission in s. 5 of the Women's Employment Act of the words "National Security Act 1939-1940" and the insertion of the words "Defence (Transitional Provisions) Act 1946." It is unnecessary to consider whether this amendment was adequate for the purpose claimed for it. Let it be supposed that it was and that the continuance from year to year since the end of 1946 of the Women's Employment Regulations rests upon the Defence (Transitional Provisions) Acts of 1946, 1947 and 1948. The order or determination in this case was made on 14th December 1948 and the authority to make it could only be derived from the effect of the Defence (Transitional Provisions) Act 1947 in extending the operation of the Women's Employment Regulations. We cannot see how this could be validly done under the defence power. The regulations are not addressed to any problem of post-war re-adjustment. The amendment made by the Defence (Transitional Provisions) Act 1947 in the date for the termination of the Defence (Transitional Provisions) Act 1946 would operate to continue the Women's Employment Regulations into the third year from the time of the cessation of hostilities. It would so operate without any legislative attempt to deal with the situation which they created. The extension of the period of the regulations means nothing but a postponement of the time when a statutory regulation no longer appropriate to existing circumstances terminates. It has no bearing upon the winding up, disposal or re-adjustment of the system of regulation or control established for war purposes or upon the situation arising therefrom except that it tends to perpetuate the latter and postpone indefinitely the former. (at p88)
16. It is argued for the respondents that there is still a lack of man power which is due to the war. It follows from what has already been said that the mere fact that the lack of man power is a war consequence is not sufficient to bring the matter within the scope of the defence power, particularly after hostilities have ceased. Lack of man power may continue for many years. It is common knowledge that expansion of industry, which is now substantially upon a civilian as distinguished from a military basis, and various changes in industrial conditions which are quite unconnected with the war have had a great deal to do with the difficulty of obtaining labour to do all the work which is required. Problems with respect to women's employment may, like many other problems, have become aggravated by the war, but in December 1947 (when, it is said, the Defence (Transitional Provisions) Act did purport to extend the operation of the regulations until 31st December 1948) they had become part of the ordinary social, economic and industrial complex of the community. (at p88)
17. The continuance in operation in 1948 of the Women's Employment Regulations was obviously not connected with the prosecution of the war, and it is not incidental to any winding-up process or to any endeavour to restore conditions which might be regarded as part of the peace-time organization of industry. (at p88)
18. The Defence (Transitional Provisions) Act 1947 therefore should be held to be invalid in so far as it extended (if it did extend) the operation of the Women's Employment Regulations to 31st December 1948. (at p88)
19. The conclusion that the regulations can no longer be supported under the defence power does not mean that the matters sought to be governed by the regulations cannot be dealt with under existing legislative powers. By an award in an inter-State industrial dispute in a case falling within s. 25 (d) of the Commonwealth Conciliation and Arbitration Act 1904-1948 the Court of Conciliation and Arbitration and in other cases a conciliation commissioner can determine conditions of employment for women, and in other cases State laws or tribunals can deal with this subject. Difficulties and inconveniences in relation to such a matter may arise, but they will in the future as in the past, be due in large measure to the particular division of industrial powers between Commonwealth and States which is the effect of s. 51 (xxxv.) of the Constitution. (at p88)
20. In this case the validity of the Liquid Fuel Regulations is challenged. These regulations were originally made under the National Security Act 1939-1940 and were continued in operation after the end of 1946 year by year by the Defence (Transitional Provisions) Acts 1946, 1947 and 1948. The regulations provide for the rationing of liquid fuel. They apply to petrol, which is perhaps the most important form of liquid fuel. They embody a scheme for the issue of licenses and ration tickets so as to control the distribution of liquid fuel in Australia by requiring production of a licence and surrender of ration tickets upon purchase or other disposition of such fuel. Licences and ration tickets are issued at the discretion of the Liquid Fuel Board constituted under the regulations. W. C. Gall was prosecuted before a Court of Petty Sessions at Brisbane for an offence against reg. 51. He pleaded not guilty. Evidence was heard for the prosecution. Counsel for the defendant stated that he did not propose to call evidence, but contended that the Liquid Fuel Regulations were inoperative and void on the date of the alleged offence, namely 16th November 1948. Proceedings in the Court of Petty Sessions were adjourned and an order was made by this Court under s. 40 of the Judiciary Act 1903-1948 removing the cause to the High Court. The evidence showed that Gall did do the acts charged against him, and, if the regulations were in operation upon the relevant date, he was guilty of an offence. (at p89)
21. The argument which has been submitted in support of the enactment continuing the regulations in force is based entirely upon considerations arising from the world dollar shortage and the need for restricting Australian dollar expenditure. Nearly all liquid fuel is imported and a great quantity of it must be paid for in American dollars, which can in practice be obtained for Australian requirements only in co-operation with the Government of the United Kingdom. Inter-governmental arrangements provide for allocation under United Kingdom control of dollars to Australian requirements. In order to provide imports which must be paid for with dollars it is therefore not only desirable but practically necessary to control all dollar expenditure from Australia. The argument is that the importation of liquid fuel must be restricted because it cannot be obtained in sufficient quantities except by the expenditure of dollars. The limitation upon importation means a shortage of supplies to consumers. Such a shortage of supplies makes rationing consequentially necessary or desirable and rationing may be used as a method of limiting consumption. Accordingly, so it is claimed, the rationing of liquid fuel falls within Commonwealth legislative power. The regulations, it is said, enable the rationing to be carried out. It will be seen that there is no analogy in the present case to that of Sloan v. Pollard [1947] HCA 51; (1947) 75 CLR 445 . The decision in that case was founded upon an agreement made by the Commonwealth Government during the war in the course of its prosecution. By the agreement the Government undertook to supply essential commodities (butter and cheese) to Great Britain for a period that had not expired when hostilities ceased. To carry out the agreement it was necessary to control the local disposition and use of another commodity (cream) in Australia. (at p90)
22. It is conceded for the defendant that during active hostilities and for some reasonable period thereafter the supply of petrol for the armed services and essential civilian requirements and the distribution of petrol within Australia were matters of the first importance for purposes of defence. But it is said that these conditions have now disappeared and that the continuance of the regulations in operation by virtue of the Defence (Transitional Provisions) Act 1946-1947 is merely an attempt to control internal trade which no longer has any relation to defence. (at p90)
23. There is no attempt to support the continuance in force of the regulations on the grounds that the control of liquid fuel is necessary or desirable in order to ensure sufficient stocks for the armed services and for the security of the country generally. The power to continue them is defended as an incident or consequence of a dollar shortage which is attributed to the war. (at p90)
24. The Liquid Fuel Regulations deal only with the control of the disposition and distribution of petrol after it has come into Australia. They do not profess to deal with the control of the amount of petrol which is imported. That of course can be done under other powers of the Commonwealth. They do not deal with the control of exchange or the expenditure of dollars upon liquid fuel or for any other purpose. The argument for the validity of the regulations depends upon no closer relation between the operation of the regulations and the dollar shortage than can be seen in the fact that the rationing of any commodity may be employed so as to reduce the amount of that commodity which is used. The method and means of sale and distribution inside Australia of imported commodities cannot itself affect the quantity of imports or the expenditure upon imports, although a restriction of consumption may re-act upon the demand for the importation of a commodity. The rationing of petrol and other liquid fuel may be used both to allocate liquid fuel in short supply and at the same time to reduce the consumption of such fuel and as a consequence to reduce the amount of that fuel imported. But these facts fall far short of showing any sufficient connection with defence purposes. It is too remote to be incidental to defence. (at p91)
25. Under the legislative power over trade and commerce the Parliament may authorize and indeed has authorized restrictions upon importation. The restriction may be for any reason: Radio Corporation Pty. Ltd. v. The Commonwealth [1938] HCA 9; (1938) 59 CLR 170 . But it would be impossible to hold that as an incident of this power the Parliament could enter what is prima facie the province of the States and control the domestic distribution or consumption of a commodity because a restriction on importation made a regulation of the basis of distribution and the purposes of consumption desirable or just. Still less would it be possible to treat the reduction in the demand for an imported commodity that may be effected by rationing as a ground for regarding the control of consumption as incidental to the restriction on importation. (at p91)
26. Rationing, it is said, is necessitated - or may reasonably be thought to be necessitated - by the restriction of importation which is due to the shortage of dollars which is due to the war. But such a connection is too remote to support a system of rationing as an incident of defence, just as it would be too remote if the power relied upon was the power to make laws with respect to trade and commerce with other countries. No doubt the dollar shortage is, at least in part, and probably in large part, a consequence of the war. But it cannot be held that any action taken to deal with a matter which is a war consequence can be supported under the defence power. The argument that any state of affairs that can be traced to the war as a cause can be dealth with under the defence power by direct or indirect measures must be rejected for reasons which have already been sufficiently stated. (at p91)
27. The invalidation of these regulations will not reduce the power of the
Commonwealth Government to co-operate with the Government
of the United
Kingdom in relation to problems arising from the dollar shortage. The
Commonwealth Parliament by suitable legislation
and the Commonwealth
Government by administrative action can completely control imports into
Australia. The power of the Commonwealth
enables it to determine how many
dollars can be spent from Australia in buying either liquid fuel or other
imported commodities.
Federal control of dollar expenditure abroad is not in
question. What is in question is an attempt to deal with internal trading
in
commodities long after hostilities have ended. The power to control imports
into Australia which is conferred by the power to
make laws with respect to
trade and commerce with other countries and the power with respect to taxation
do not enable the Commonwealth
Parliament to make laws with respect to the use
and consumption of goods simply because they are imported goods or because
they have
been subject to customs taxation. The distribution and use and price
of petrol within Australia can be controlled under State legislation.
But
these subjects can no longer be said to have such a relation to subjects of
defence as to authorize the continuance in operation
of the Liquid Fuel
Regulations. Accordingly the Defence (Transitional Provisions) Act 1947 should
be held to be invalid in so far
as it purports to extend the operation of the
Liquid Fuel Regulations to 31st December 1948.
Collins v. Hunter and Ors. (at p92)
28. This case comes to the Full Court upon a reference by Dixon J. Mrs. Patricia Mahon Collins issued a writ in the High Court claiming a declaration that she was entitled to possession of certain premises and an injunction restraining the defendants from disturbing her possession. The defendant R. Tippett, who is a "protected person" under the War Service Moratorium Regulations, has obtained a warrant dated 7th March 1949 from a stipendiary magistrate under regs. 30A and 30AB of the National Security (War Service Moratorium) Regulations authorizing and requiring the delivery to him of the possession of a certain dwelling house. The defendant R. G. Hunter is a constable of police charged with the duty of executing the warrant. The plaintiff Mrs. Collins, however, purchased the dwelling house from the previous owner after the warrant had been granted and entered into possession before it had been executed. Many questions were raised with respect to the validity of the warrant, but the first contention on behalf of the plaintiff was that regs. 30A to 30AF were no longer in operation. (at p92)
29. The regulations show all the marks of hasty improvisation with little, if any, appreciation of the problems involved in the legal relationship of landlord and tenant. Reference is made to some of the more obvious defects of the regulations in Real Estate Institute of New South Wales v. Blair [1946] HCA 43; (1946) 73 CLR 213 . In the present case it has been argued with much force that another defect in the regulations is that they do not permit the eviction of a protected person who remains in occupation under the regulations and refuses to pay rent - see reg. 30AD, creating a tenancy but fixing no term therefor and no conditions of tenancy. But this and the other defects to which reference has been made only provide ground for criticism of the policy of the regulations and have no bearing upon their relation to the defence power of the Commonwealth Parliament. (at p93)
30. The regulations which in a revised form now stand as regs. 30A to 30AF of the War Service Moratorium Regulations were adopted in an earlier form on 28th June 1945 by Statutory Rules 1945, No. 101. They took their actual inception in Statutory Rules 1942, No. 437, which was gazetted on 14th October 1942. Their present form is due to Statutory Rules 1946, No. 86, No. 87 and No. 125. But the definition of "discharged member of the Forces" contained in reg. 28A is important in the operation of these relations and it has been amended so that the regulations now cover protected persons whose discharge was four years ago or less instead of two years or less: Statutory Rules 1947, No. 99 and 1948, No. 55: cf. Statutory Rules 1948, No. 109 as to reg. 30. By the Defence (Transitional Provisions) Acts 1946, 1947 and 1948 the operation of the regulations was extended to 31st December 1949. (at p93)
31. The War Service Moratorium Regulations provide that a protected person (a specially defined class of discharged servicemen and certain dependants) may obtain a warrant of possession under which he may be authorized to occupy a dwelling house which is unoccupied or about to become unoccupied, and that he shall pay a rent determined in the manner provided by the regulations. In Real Estate Institute of New South Wales v. Blair [1946] HCA 43; (1946) 73 CLR 213 , this Court held that so far as servicemen themselves were concerned regs. 30A to 30AF were validly adopted in their present form in May and July 1946. It is contended that in all relevant particulars the position in March 1949 was the same as that date and that the extension from two to four years of the period within which a serviceman must be discharged to be a protected person made no difference. It is argued for the defendants, who support the regulations, that there is a shortage of housing due to the war and, further, that the provision of houses for discharged personnel and their dependants has a real and substantial connection with defence which continues after fighting has ceased. On the other hand, it is admitted that it is within the Commonwealth power to acquire land and provide "war service homes" for discharged servicemen and their dependants (Attorney-General for the Commonwealth v. Balding [1920] HCA 16; (1920) 27 CLR 395 but it is argued that provisions under which a discharged serviceman or his dependants may be given possession of homes against the will of the owner cannot at this time be upheld as a defence measure. (at p94)
32. The protected persons who under reg. 30A may obtain a warrant of possession in respect of a dwelling house which is unoccupied or about to become unoccupied are protected persons referred to in sub-reg. (9) of reg. 30: see reg. 30A (1). The protected persons referred to in the first-mentioned sub-regulation are defined by the following provisions in that sub-regulation: - "(9) For the purposes of this regulation, a person shall not be deemed to be a protected person unless he is - (a) a member of the Forces who - (i) is; or (ii) was, for a total period of not less than twelve months during his period of war service, required, by reason of his war service, to live in premises other than premises occupied by him, or by a member of the household to which he belongs, as a home; (b) a discharged member of the Forces who was - (i) immediately prior to his discharge; (ii) for a continuous period of not less than three months during the period of six months immediately prior to his discharge; or (iii) for a total period of not less than twelve months during his period of war service, so required; (c) a female dependant of a member or a parent of a member and that member - (i) is; or (ii) was, for a total period of not less than twelve months during his period of war service, so required; or (d) a female dependant of a discharged member or a parent of a discharged member and that member was - (i) immediately prior to his discharge, ceasing to be engaged on war service or death, as the case may be; (ii) for a continuous period of not less than three months during the period of six months immediately prior to his discharge, ceasing to be engaged on war service or death, as the case may be; or (iii) for a total period of not less than twelve months during his period of war service, so required." (at p94)
33. In reg. 28A "protected person" is defined as meaning "a member of the Forces, discharged member of the Forces, female dependant of a member, female dependant of a discharged member, parent of a member or parent of a discharged member." All these terms are defined in other provisions of reg. 28A. The effect of regs. 28A, 30 and 30A is that the benefits of reg. 30A can be claimed only by a person who is a protected person within the definition contained in reg. 28A and who also falls within the limited class of protected persons described in reg. 30. (at p94)
34. But a protected person, as a result of amendments adopted on 7th May 1948, may now be a member of the forces who has been discharged from the Defence Force or has ceased to be engaged on war service for a period up to four years or may be a female dependant or a parent of such a person. (at p95)
35. The terms of reg. 30 show that the regulations were designed to deal with service personnel and certain of their dependants whose domestic life was disturbed by reason of a member of the forces being required by his war service to live in premises other than his ordinary home. (at p95)
36. When in May and July 1946 the provisions now represented by regs. 30A to 30AF were reframed in their present form the period over which, as the law then stood, they were to operate was a short one. The National Security Act 1946 had been passed on 18th April 1946, though the date of its commencement was 16th May 1946. The new s. 19 which it inserted in the National Security Act 1939-1943, under which the regulations were made, provided that all regulations made thereunder should cease to have effect at midnight on 31st December 1946. The period from his discharge limited in the definition of discharged servicemen was two years, not four. In Real Estate Institute of New South Wales v. Blair (1946) 73 CLR, at p 218 part of the argument in support of the validity of the regulations was that they continued in force until 31st December 1946 and that a tenancy could be created thereunder until that date. Hostilities had not ceased until 2nd September 1945. It was in these circumstances that the Court decided that regs. 30A to 30AF were not ultra vires. It was considered that they fell within that aspect of the defence power which enables the Federal legislature to provide for the re-establishment in civil life of persons who have served with the defence forces upon discharge (per Latham C.J. (1946) 73 CLR, at p 221 ). Rich J. said: - "I do not think that it is beyond the scope of the defence power to provide reasonable facilities for enabling men of the fighting services to re-establish themselves in civil life during a reasonable time after they have been discharged; and, in existing circumstances, I do not think that the temporary continuance of the provisions which have been challenged, in the form in which they now stand, is, in its application to discharged servicemen, outside the scope of the defence power." (1946) 73 CLR, at p 225 . Williams J. said: - "During hostilities legislation under the defence power requiring householders to billet members of the forces, and probably also members of their families, could be valid. And during the period of demobilization legislation to the same effect might be valid. By analogy to billeting, legislation passed in war-time requiring citizens to allow members of the forces and their families to reside in unoccupied houses could also be valid. We are now in a period when the defence power is contracting. In my opinion the operation of the defence power in peace-time could not be wide enough to authorize legislation, otherwise than under s. 51 (xxxi.), to make dwelling houses owned by individuals available as dwelling houses for discharged members of the forces. But the present regulations can, I think, be justified as an exercise of the defence power during hostilities and the immediate aftermath. They are of temporary duration and any statutory rights they create would not continue after their expiration." (1946) 73 CLR, at p 236 . Starke J. and Dixon J. confined themselves to the case of discharged servicemen and treated the regulations as within the defence power because "they secure in certain cases dwelling houses for members and discharged members of the armed Forces required by reason of war to live in premises other than premises occupied by them or by members of their household as a home": per Starke J. (1946) 73 CLR, at p 227 . Dixon J. pointed out that the direction of the defence power had been changed: its direction was no longer towards sustaining the conflict but towards measures calculated to liquidate the organization for war and restore the conditions of peace (1946) 73 CLR, at p 231 . (at p96)
37. It will be seen that the adoption of regs. 30A to 30AF in their present form was sustained as a temporary measure intended to operate for the brief remainder of the life of the National Security Act substantially on the ground that they made a provision incidental to the rehabilitation of soldiers, sailors and airmen on discharge. "The fact that the regulations do not show an adequate appreciation of the nature (or even of the existence) of many problems which are involved in the relation of landlord and tenant" (per Latham C.J. (1946) 73 CLR, at p 221 ), was put on one side as a consideration not going to validity. But it was recognized that to place the serviceman in occupation of another man's dwelling against his will, if for the moment it was unoccupied or about to become unoccupied, was to take an extreme course and this was weighed as a consideration going to validity. But it was considered sustainable under the defence power as a provision ad interim. What the Court is now called upon to decide is whether it is incidental to the defence power to extend the operation of such an interim measure into the fourth year after the cessation of hostilities. What is in issue is the validity of the Defence (Transitional Provisions) Act 1948 in so far as it would extend the operation of regs. 30A to 30AF to 31st December 1949. (at p96)
38. The question depends upon a matter of degree, as is not infrequently the case when it is claimed that a provision is incidental to the purpose or subject matter of a legislative power. But we have reached the conclusion that the attempt to continue the operation of regs. 30A to 30AF for so great a length of time cannot be supported as an exercise of the power to make laws with respect to defence. It loses sight of the exceptional character of the remedy they contain and of the necessity of basing it, as a matter of legislative power, upon the exigency created by demobilization and discharge. To treat the provision as one constitutionally capable of indefinite continuance is to mistake the difficulties which servicemen share with other members of the community in a prolonged housing shortage for the more immediate and urgent necessities which are set up by demobilization and discharge at the end of hostilities. Just as in the prosecution of actual war the extent of the application of the defence power is measured by reference to the emergency, so, when its direction is changed by the cessation of hostilities and it is pointed at the dis-establishment of the organization of the community for war and the restoration of the conditions of peace, the application of the power must be measured by the exigencies that are involved. (at p97)
39. Regulations 30A to 30AF make a provision of a peculiar and of a drastic nature. It is a provision which is not based on s. 51 (xxxi.) of the Constitution and yet it proceeds in invitos against the owners of dwelling houses and places the protected person in occupation as a so-called tenant. Section 51 (xxxi.) confers a power for the acquisition of property for purposes which, no one doubts, would include the housing of discharged servicemen. Again, regs. 30A to 30AF do not deal with the question whether in a competition for housing or accommodation servicemen are to be preferred to others. They do not for instance confer a priority upon a serviceman as an applicant for a lease in the same way as he is given a preference in employment (for a limited period) under the Re-establishment and Employment Act 1945. It is true that they do enable the owner, an expression including a lessee, to resist the claim of the protected person on the ground of hardship to himself or some other person. But otherwise they are simply based on the fact that a dwelling is or is about to become unoccupied for however short a time. Any protected person may then obtain it, whatever may be his personal situation. To continue these extreme provisions years after the real demobilization is over and to do so in favour of protected persons whose discharge took place as long ago as four years cannot be considered as incidental to the defence power. (at p97)
40. Accordingly, the Defence (Transitional Provisions) Act 1948 should be held to be invalid in so far as it purports to continue the War Service Moratorium Regulations 30A to 30AF in operation to 31st December 1949. (at p98)
41. This conclusion does not in any way prevent the Commonwealth from making legislative provision under which homes may be provided for discharged defence personnel so far as is thought proper whether those homes are freehold (as under the War Service Homes Acts) or leasehold. Further, tenants have the protection of State laws, which have recently been extensively amended in their favour. State Parliaments could, if they thought proper, enact provisions the same in substance as those contained in the War Service Moratorium Regulations with respect to protected persons. Indeed, this has been done in Victoria by the Landlord and Tenant Act 1948, Part V, which reproduces regs. 28 to 30D of the War Service Moratorium Regulations. This part of the Victorian Act has not yet been proclaimed, but it can be proclaimed whenever thought proper and be kept in operation for such period as the State Parliament may determine. Accordingly, this decision with respect to the War Service Moratorium Regulations need not in any way prejudice the rights of protected persons with respect to unoccupied dwellings if the State Parliaments are prepared to maintain them. (at p98)
42. Thus there are means of dealing with all the subjects to which the three sets of regulations relate apart altogether from the defence power. (at p98)
43. The conclusion that all the challenged regulations are no longer in operation for the reasons stated makes it unnecessary to consider arguments on other points which were raised in each case. (at p98)
44. In R. v. Foster & Ors.; Ex parte Rural Bank of New South Wales the Rural Bank obtained an order nisi for prohibition restraining his Honour Judge Foster and certain banking organizations from proceeding upon an order made by the learned judge under the Women's Employment Regulations. As those regulations are held to be invalid, the order for prohibition should be made absolute. (at p98)
45. In Wagner v. Gall, where the defendant is being prosecuted for a breach of the Liquid Fuel Regulations, the result of holding those regulations to be invalid is that the complaint should be dismissed. (at p98)
46. In Collins v. Hunter & Ors. the result is that, the War Service Moratorium Regulations 30A to 30AF being no longer in operation, the defendant Tippett has no right to obtain possession of the house at present occupied by the plaintiff, and there should be judgment for the plaintiff for declarations of invalidity and injunctions as sought in the statement of claim. (at p99)
47. The Rural Bank did not raise the question of the validity of the regulations until after many months of conferences and other proceedings with the respondent associations. In this case the order should be made absolute, but without costs. (at p99)
48. In the criminal proceedings in Wagner v. Gall the defendant has succeeded and the complaint should be dismissed (without costs), but, as the Attorney-General removed the proceedings to the High Court, the defendant should have his costs in this Court. (at p99)
49. In Collins v. Hunter & Ors. the plaintiff has succeeded and is entitled to have her costs of the action, including the proceedings before the Full Court. That order is duly made. But the contest has been between two "protected persons" and it is suggested by the Court that the Commonwealth authorities might give consideration to the propriety of relieving the parties of some or of all the liability for costs legitimately incurred. (at p99)
ORDER
R. v. Foster and Others; Ex parte Rural Bank of New South Wales.Order absolute without costs.
Wagner v. Gall. Complaint dismissed. No order as to costs of proceedings in the Court of Petty Sessions. Complainant to pay defendant's costs of proceedings in the High Court.
Collins v. Hunter and Another.Service Moratorium) Regulations are void.
(a) Declared that regs. 30A to 30AF inclusive of the National Security (War
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