Dawson v Commonwealth [1946] HCA 41;

[1946] HCA 41

High Court of Australia|1946-10-22|Before: Williams JJ

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Court

High Court of Australia

Decision date

1946-10-22

Before

Williams JJ

Source

Original judgment source is linked above.

Judgment (70 paragraphs)

[1]

The application for consent to purchase the land was made in accordance with forms which are not prescribed by any regulation but which apparently it is the practice of the delegate of the Treasurer to use. In my opinion there is no justification in the Regulations for requiring much of the information which the parties to a transaction are required to give, but the question of the validity of the Regulations cannot depend upon the practice adopted by officers in dealing with vendors and purchasers.

[2]

In the statement of claim in the action the plaintiff alleges the surrender of all of the Governments with which His Majesty was engaged in war, the final surrender being that of Japan on 2nd September 1945, on which day hostilities ceased with all enemy nations. The National Security Act 1939-1943, s. 19, provided: - "This Act shall continue in operation until a date to be fixed by Proclamation, and no longer, but in any event not longer than six months after His Majesty ceases to be engaged in war." It is contended that His Majesty ceased to be engaged in war on 2nd September 1945 and that the operation of the Act therefore expired on 2nd March 1946. The National Security Act 1946 repealed s. 19 of the former Act and substituted a new provision in the following terms: - "This Act, and all regulations made thereunder, and all orders, rules and by-laws made in pursuance of any such regulation, shall cease to have effect at midnight on the thirty-first day of December, One thousand nine hundred and forty-six."

[12]

But the plaintiff has a further argument, depending upon the nature of the constitutional power to make laws with respect to defence. It is contended, and in my opinion rightly, that the scope of possible legislation under the defence power varies from time to time in accordance with the circumstances of the time, and that the mere fact that a state of war continues does not in itself authorize the continuance of laws which may have been validly operative when made, but which cannot be regarded as having any relation to defence at a later time when their validity is challenged. To take an example - the introduction of blackout regulations, however justifiable in the past, could not be supported now as valid legislation. But this principle does not mean that the Federal defence power in relation to a particular matter ceases instanter with the disappearance of the conditions which justified the original exercise of the power. I give another example: - Let it be supposed that, under the defence power, at a time when there was, in the opinion of the Commonwealth Government, a danger of bombing attacks, regulations had been made authorizing a Commonwealth authority to erect air-raid shelters in public streets. Such regulations would be valid. Circumstances change, and there is obviously no longer any danger of such attacks. The structures in the streets do not then immediately become unlawful obstructions under State law, in relation to which the Commonwealth has no power. Federal statutes or regulations could, in my opinion, validly be made for the orderly demolition or removal of the structures. Similar considerations apply in the case of other defence measures. The defence power does not cease instantaneously to be available as a source of legislative authority with the termination of active hostilities (cf. Jerger v. Pearce[6]) or even with the end of the war (Roche v. Kronheimer[7]). The power is not cut off as with a guillotine. The defence power includes not only a power to prepare for war and to prosecute war, but also a power to wind up after a war and to restore conditions of peace - gradually if that is thought wise, and not necessarily immediately by the crude process of immediate abandonment of all Federal control. The fact that certain conditions have been created by the exercise of the defence power is itself a fact which is relevant to the validity of a continued or further exercise of that power. After the 1914-1918 war the Commercial Activities Act 1919 provided for the continuance in force of various regulations in relation to subjects which derived their existence from the exercise of defence powers during the war which had ended. I see no reason to doubt the validity of that Act.

[35]

The purposes of the Regulations are to be collected from their contents and the circumstances in which they were made, but the view I took of them seemed to be accepted, namely that they meant to restrain dealings in land to those considered justified by the use of the land or the needs or situation of the parties or one of them and thus to prevent speculation, the movement of land values, the withdrawal of capital from investments expressed in money and the substitution of land as a security and generally the diversion into land of funds available for investment in government securities and, as a secondary purpose, to reduce the volume of land dealings so that the energies of fewer people would be absorbed in them. Substantially I should think that to go beyond these purposes would go beyond power; but it was pointed out that a refusal of consent to an alien of enemy affiliations or to a dealing in land connected by situation with some defence project or military post or the like might, before the end of hostilities, have been justifiable under both the constitutional power and the statutory power. That may be so and, though I doubt whether the Regulations had such matters in view, I am content to include them in the list of what initially were legitimate grounds for refusing consent to a dealing in land. It is then said that such matters, as well as many of the economic considerations which during the war formed proper grounds for refusing to relax the prohibition, necessarily ceased to be relevant to the defence power as time advanced and the period of hostilities receded into the past. It was denied that the economic purpose of checking inflation fell any longer within the application of the defence power. The denial was based on a distinction drawn between, on the one hand, matters incidental to concluding a war and to establishing the community upon a footing appropriate to peace and, on the other hand, social and economic problems which, though attributable to there having been a war or to circumstances arising in or from the war, yet form part of the conditions which continue in peace to govern the life of the community and have no further or other nexus with defence. The prevention of monetary inflation was placed in the latter category. Thus there could not now, according to the argument, be any justification under the defence power for regulating land transactions or alternatively for including among the grounds for their regulation, many of the matters upon which, as I think, the present Regulations depend. Consequently the validity of the provisions complained of by the plaintiff was denied on the ground that they were, so to speak, constitutionally spent.

[36]

The argument overlooks, I think, the consideration that while, in the conditions which follow the end of actual hostilities, the defence power might not authorize a given measure, were it then to be adopted for the first time, yet the change of circumstances consisting in the surrender of the enemy and the passing of the military purposes with a view to which the country had been organized, does not mean that the measures by which it has been so organized must suffer an immediate constitutional collapse, unless new or continuing exigencies growing out of the war would justify them as fresh exercises of the defence power. To place a country on a footing to take an adequate part in such a war as that through which we have passed requires a co-ordinated and systematic series of measures which must reshape the economy of the country. It is impossible to suppose that the defence power will suffice to authorize the retention of such a legislative fabric so constructed throughout a long and indefinite period of peace. But it is apparent that the change back from a war economy to an economy appropriate to peace is a task calling for further measures of a legislative nature and the defence power, in my opinion, is not insufficient to authorize laws for that purpose. The power must, by consequence, also extend to sustaining for some reasonable interval of time the laws and regulations in force at the end of hostilities so as to enable the legislature to proceed with the task. The whole edifice does not collapse at once simply because the necessities which call it into being have passed. Further, among the things that are incidental to the power must be the fixing by the legislature itself of some reasonable time during which the regulations adopted for war are to continue in force, while the steps are taken that are considered necessary for the remission of the community to an order proper to peace. In substance I think that this is what the Parliament has done by the National Security Act 1946. It is true that both the preamble and the operative provisions of that Act appear to imply an assumption that unless positively terminated by a new statute the National Security Act 1939-1943 and the regulations thereunder would all remain in force until six months after "a state of peace comes into existence" or a proclamation is made. But I do not think that such an assumption is necessarily against the view that the Act of 1946 intends to maintain the legislative provisions until the date fixed. For it supports the conclusion that the legislature so intended.

Dawson v Commonwealth [1946] HCA 41;

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Dawson v Commonwealth [1946] HCA 41; (1946) 73 CLR 157 (22 October 1946)