Andrews v Howell [1941] HCA 20

Andrews v Howell [1941] HCA 20 - HCA 1941 case summary — Zoe

[20]

Axpruws Connected with defence. The cure of an inconvenience resulting ae from the war cannot conduce to its more efficient prosecution. The _____ States could do this under their general powers without having to rely on the defence power of the Commonwealth. Sec. 5 of the National Security Act 1939-1940 must be read down to the proper content of the defence power in the Constitution. The scheme is an attempt to create a monopolistic power of sale in order to restrict local sales and keep up the price. The word " move" should bear its ordimary lexical meaning, and in interpreting the word the court should not be concerned with its purpose or intent (McNeill v. Whitton (1); Murphy v. Stokes (2); R. v. McNicol (3) ). It is any form of physical interference. This provision is so wide and unreasonable that it cannot be justified as incidental to the powers set out in sec. 5 (1) of the National Security Act 1939-1940. The effect of the word "move" as used in reg. 15 (a) is that a person cannot even pick the apples off the tree. That physical interference would be a movement of the fruit; the only alternative would be to allow them to rot on the trees. 4. The regulations and/or the proclamation necessarily operate and are intended to operate so as to restrict all trade, including inter-State trade, in apples and pears ; accordingly, they contravene sec. 92 of the Constitution. The scheme effectuated by the regulations is inseverable in its operation on inter-State trade, and so the regulations are entirely bad. The defence power cannot beg the operation of sec. 92 (Peanut Board v. Rockhampton Harbour Board (4); James v. The Commonwealth (5) ; Duncan v. State of Queensland (6) ; James v. Cowan (7); Constitu- tion, secs. 51,92). The inter-State trader is entitled to a declaration, as the statutory provisions are inseverable (Acts Interpretation Act 1901-1937, secs. 15a, 46; Australian Railways Union v. Victorian Railways Commissioners (8) ; Macleod, The High Court on the Interpre- tation of Statutes, (1924), pp. 204 et seq. ; Melbourne Harbour Trust Commissioners v. Colonial Sugar Refining Co. Ltd. (9); Fox v. Robbins (10) ). Sec. 51 (i) of the Constitution could not validate the scheme (R. v. Burgess ; Ex parte Henry (11)). These provisions are

[79]

The National Security Act provides that "the Governor-General may make regulations for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth, and in particular" (inter alia) "(b) for authorizing . . . (ii) the acquisition, on behalf of the Commonwealth, of any property other than land . . . and for prescribing all matters which, by this Act, are required or permitted to be prescribed, or which are neces- sary or convenient to be prescribed, for the more effectual prosecution of any war in which His Majesty is or may be engaged or for carrying out or giving effect to this Act." Under this Act the National Security (Apple and Pear Acquisition) Regulations in question in this case purport to have been made. "The purpose of these regu- lations is to minimize the disorganization in the marketing of apples and pears likely to result from the impracticability of exporting sufficient quantities of apples and pears because of the effects upon shipping of the present war and these Regulations shall be adminis- tered accordingly " (Statutory Rules 1939 No. 148, clause 2). An Australian Apple and Pear Marketing Board is set up which is a body corporate and consists of a chairman, deputy chairman, an executive member, and six other members representing respectively each of the six States, appointed by the Minister. A committee is also appointed by the Minister for each State (Statutory Rules 1939 No. 148 and 1940 No. 276). Any person who grows any apples or pears may, and every grower is required to, register as a grower. And "' grower' means the owner, lessee, or occupier of an orchard of which not less than one acre is wholly or principally used for the growing of apples or pears or of apples and pears." "The Minister may, from time to time, by order published in the Gazette, make provision for the acquisition by the Commonwealth of any apples and pears described in the order, whether by reference to any con- tingency or otherwise, and those apples and pears shall by force of and in accordance with the provisions of the order become the absolute property of the Commonwealth, freed from all mortgages, charges, liens, pledges, interests, and trusts affecting those apples and pears, and the rights and interests of every person in those apples and pears (including any rights or interests arising in respect of any moneys advanced in respect of those apples and pears) are hereby converted into claims for compensation " (Statutory Rules 1939 No. 148, 1940 No. 295). " Any person having in his possession,

[80]

control or disposal any apples or pears acquired by the Common- wealth shall, on receipt of a notice in writing from the board requiring him to deliver or consign those apples or pears to an agent, packing shed, cool store or any other person or place specified in the notice, deliver or consign, as the case may be, those apples or pears to the agent, packing shed, cool store or other person or place within the time and in the manner specified in the notice " (1940 No. 276). . " Upon delivery or consignment of any apples or pears in accordance with " the preceding provision, "or upon any apples or pears being disposed of or dealt with in accordance with instruc- tions from the board, every person having any right or interest in those apples or pears may forward to the board a claim for compen- sation . . . and shall be entitled to be paid such amount of compensation as the Minister, on the recommendation of the board, determines. It shall not be necessary for the Minister to make a determination . . . until, in his opinion, a sufficient quantity of any apples or pears acquired by the Commonwealth has been disposed of to enable the board to make a just recommendation " (Statutory Rules 1939 No. 148). The board may, on behalf of the Commonwealth and subject to the direction of the Minister, sell or dispose of any apples or pears acquired or purchased by the Common- wealth, manage and control the handling, storage, protection, and shipment of any apples or pears acquired by the Commonwealth. The State committees have such powers as the regulations confer, or as the board thinks fit, but exercise all those powers subject to any direction which the board may give. The board is required to open a bank account into which it shall pay all moneys received by it in respect of apples and pears and also all moneys appropriated by Parliament or borrowed by the Minister for the use of the board on behalf of the Commonwealth. Out of the moneys standing to the credit of this account the board shall defray expenses and make all payments in respect of compensation and any other payments authorized by the regulations (Statutory Rules 1939 No. 148).

[86]

It was also contended that the regulations provide for the acquisi- tion of apples and pears on terms that are not just. The argument is based, I apprehend, upon the American doctrine that the mere existence of a state of war does not suspend or change the operation of the guarantees and limitations of the American Constitution upon the power of Congress. Thus the 5th amendment of the Constitution guarantees that no person shall be deprived of life, liberty, or property without due process of law, and that no private property shall be taken for public use without just compensation (Hamilton v. Kentucky Distilleries & Warehouse Co. (1); United States v. Cohen Grocery Co. (2) ) unless, perhaps, an actual war emergency or military necessity so requires : Cf. Ruppert v. Caffey (3), m arguendo ; Wills, Constitutional Law, (1936), pp. 445, 446; Willoughby on The Constitution, 2nd ed. (1929), vol. 3, sec. 1033, pp. 1568-1570. Constitutional guarantees such as are contained in the 5th amendment have no counterpart in the Australian Constitution. But it is provided by sec. 51 (xxxi.) of the Australian Constitution that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to " the acquisition of property on just terms from . . . any person for any purpose in respect of which the Parliament has power to make laws." One of those powers, sec. 51 (vi.), is with respect to the naval and military defence of the Commonwealth and the several States. According to Isaacs J. in Farey v. Burvett (4), war " gives by the very nature of the circumstances a paramount authority to the defence power." There is nothing in the Constitution, I think, that warrants that statement. 'There is no hierarchy in the powers, with the power as to defence on the top " (Farey v. Burvett (5), per Higgins J.). Hach power contained in sec. 51 is an independent and separate power, and its content must be found in the words in which it is expressed, subject nevertheless to the ordinary rules of inter- pretation. An express power to acquire property on just terms for any purpose in respect of which Parliament has power to make laws indicates a legislative intent that property shall not be acquired by the Commonwealth for any purpose in respect of which it has power to make laws unless on those terms. Actual war operations and military necessity may require further consideration, but, putting that aside, the provisions of the Constitution, in my opinion, preclude the Commonwealth from acquiring any property from any person otherwise than on just terms.

[93]

The question, however, turns upon the construction of the regula- tion. In my opinion, the right to compensation given by reg. 12 is absolute, and the provisions of regs. 14 and 17 do not condition that right nor provide an exclusive method of enforcing it. They provide a summary method for determining compensation but, I think, only a method alternative to the ordinary process of the courts of law. Assume, however, that the regulations provide the only method of enforcing the right to compensation, still, im my opinion, they do not contravene the provisions of sec. 51 (xxxi.) of the Constitution. It should be observed that the power conferred by the National Security Act 1939-1940, sec. 5 (1) (0), is general in its terms, " the acquisition on behalf of the Commonwealth of any property other than land," but it must be read and construed subject to the Constitution (Acts Interpretation Act 1901-1937, sec. 15a). It was not suggested that compensation must be assessed by some judicial tribunal: but, as already indicated, that " just terms " involved an impartial tribunal and an opportunity of being heard. But this proposition is founded upon principles deduced by the Supreme Court of the United States from the " due process " clause of the American Constitution - See Willis, Constitutional Law, (1936), ch. XXIII. - which has no counterpart in the Australian Constitu- tion. It has been held, however, that the Parliament under the Australian Constitution can entrust judicial power to no other tribunal than a court (Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1); New South Wales v. Commonwealth (2): see per Isaacs J. (3) ). Still, functions resembling judicial functions may lawfully be conferred upon tribunals other than a court, such as the assessment of tax (Federal Commissioner of Taaation v. Munro (4); Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (5) ) or, as in the present case, the assessment of the amount of compensation to which persons are entitled by reason of the provisions of reg. 12. No-one has any right to a given mode of procedure. It is for the legislature or the regulation-making authority to prescribe the tribunal, the procedure, and the manner in which the compensation shall be ascertained and assessed. In this view, it is beyond the function of the courts to consider whether the Minister is or is not an impartial tribunal, or whether the procedure devised by the legislative authority gives

[181]

At the date of the alleged offence the regulations in force were, besides those contained in Statutory Rules 1939 No. 146 and 1940 No. 276, the National Security (Apple and Pear Acquisition) Regulations, to be found in Statutory Rules 1940 Nos. 13, 38, 60, 283 and 295. The regulations were made by the Governor-General with the advice of the Federal Executive Council. In making the regulations contained in Statutory Rules 1939 No. 148 the Governor- General purported to exercise the powers conferred on him by the National Security Act 1939. The other statutory rules were similarly made under that Act, or as amended by the National Security Act 1940. The powers which the Governor-General purported to exercise include that of making regulations for securing the public safety and defence of the Commonwealth and its Territories, and for prescribing all matters which are necessary or convenient to be prescribed for the more effectual prosecution of the war. By sec. 5 of the amending Act the war means any war in which His Majesty is or may be engaged. The Governor-General declared in reg. 2 of Statutory Rules 1939 No. 148 what was the purpose of the regulations. It is declared in these terms: " The purpose of these regulations is to minimize the disorganization in the marketing of apples and pears likely to result from the impracticability of exporting sufficient quantities of apples and pears because of the effects upon shipping of the present war and these regulations shall be administered accord- ingly." The facts stated in this regulation are not challenged, nor is there any denial of the existence of the emergency which they profess to mect. But it is contended that because of the purpose for which the regulations are declared to have been made they are not reason- ably capable of being described as regulations for securing public safety and defence, and are therefore in excess both of the powers conferred on the Governor-General by the National Security Act and of the defence power of the Commonwealth. The disorganiza- tion which the regulations aim at minimizing is a plain and direct consequence of the war. It is the result of the diversion of ships upon which the export trade in apples and pears depends to war purposes and of the loss of shipping by enemy action. The dis- organization caused by the war in the important industry of produc- ing fruit for export and home consumption impairs the economic integrity of the country. It cannot be doubted that measures

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Judgment (194 paragraphs)