Graham v Paterson

Graham v Paterson - [1950] HCA 9 - HCA 1950 case summary — Zoe

In the first place, the appellants contend that there was no evidence that, even if the Act is valid, they committed the offence with which they were charged. The precise charge was that the appellants "did contravene a provision of Part III. of " The Profiteering Prevention Act of 1948 " in that contrary to the provisions of Section 43 of the said Act they the said Charles Graham and Frank Akehurst did sell by offering for sale declared goods namely a standard loaf of bread at a price of Eightpence such price being a greater price than the maximum price to wit Sevenpence halfpenny fixed in relation thereto under the said " The Profiteering Prevention Act of 1948 " for the sale of such goods." It was proved that bread was "declared goods" under the Act and that a price of sevenpence halfpenny had been fixed under the Act for a two-pound loaf of bread. Section 6 of the Act provides that "sell" includes, inter alia, offer or expose for sale. Section 43 (6) provides that for the purpose of s. 43 "a person shall be deemed to sell by offering for sale goods if he notifies the price or rate proposed by him for a sale of the goods by the publication of a price list, by furnishing a quotation, by exposing the goods for sale in association with a mark indicating price, or otherwise howsoever." The evidence of the complainant, who was an investigating officer belonging to the Prices Branch, was that he entered the defendants' baker's shop in Coolangatta in Queensland, which is a town very close to the border of New South Wales, and bought a two-pound loaf of bread for which he was charged eightpence. The defendants told the officer that the saleswoman who sold the bread at that price did so with their authority. The facts stated showed that the defendants notified, by their servant, a price for a sale of the bread. That price was a greater price than that fixed for a two-pound loaf of bread and therefore there was evidence upon which the defendants, if the Act were valid, could properly be convicted of the offence of selling by offering for sale in breach of the Act.

[10]

The Commonwealth Powers Act of 1943 recites an agreement between representatives of the Commonwealth and State Governments and of the Oppositions in the Parliaments of the Commonwealth and the States that adequate powers to make laws in relation to post-war reconstruction should be referred to the Parliament of the Commonwealth by the Parliaments of the States and that such reference should be for a period ending at the expiration of five years after Australia ceased to be engaged in hostilities in the then present war. It was also agreed that it was desirable that the reference should not be revoked during that period. Australia ceased to be engaged in hostilities in the said war in September 1945, so that the period referred to in the recital (and in s. 4 of the Act) has not yet expired. Section 2 of the Act provides: "The following matters are hereby referred to the Parliament of the Commonwealth, that is to say," inter alia, "(f) Profiteering and prices (but not including prices or rates charged by State or semi-governmental or local governing bodies for goods or services." Other paragraphs refer to other subjects, e.g. employment and unemployment, organized marketing of commodities, uniform company legislation, trusts, combines and monopolies, air transport, family allowances, people of the aboriginal race &c. Section 3 provides that the Act shall not be repealed or amended except in the manner provided by the section. The section requires the approval of a majority of the electors voting on the question whether a bill for an Act should be approved or not. Section 4 provides that the reference shall continue in force for a period ending at the expiration of five years after Australia ceases to be engaged in hostilities in the war and that no law made by the Parliament of the Commonwealth with respect to matters referred to it by the Act shall continue to have any force or effect by virtue of the Act or the reference made by the Act after the expiration of that period.

[13]

No objection is made on behalf of the appellants to the validity of the 1943 Act. The argument proceeded upon this basis, though the respondent was prepared to contend, if necessary, that the Act was not valid. Indeed, the argument of the appellants which is now under consideration depends upon the proposition that that Act is valid. It has sometimes been suggested that a reference under s. 51 (xxxvii.) must be an irrevocable reference for all time - that while the matter referred must necessarily be described by reference to its attributes or qualities, yet the reference cannot be limited by reference to a quality or attribute of a temporal character. Such a contention would involve the proposition that a State Parliament can pass an unrepealable statute, or at least that any attempt to repeal an Act referring a matter under s. 51 (xxxvii.) would necessarily produce no result. The result of the adoption of such a suggestion would be that one State Parliament could bind all subsequent Parliaments of that State by referring powers to the Commonwealth Parliament. It is unnecessary to consider this question in this case because the essence of the appellants' argument is that the 1943 Act is valid and that it deprived the Queensland Parliament of power to make laws with respect to the matter referred - as in the case of a transfer of property where, after the transfer has been made, the transferor has not, and the transferee has, the property which has been transferred. This analogy is not in my opinion applicable. Section 51 confers powers upon the Commonwealth Parliament to make laws with respect to the matters set forth in the section. These powers are not declared to be exclusive powers of the Commonwealth Parliament. Most of these powers can be exercised concurrently by the State Parliaments with the Commonwealth Parliament. Some of the powers, it is true, are, by reason of the nature of the subject matter, exclusive, for example - "(iv.) Borrowing money on the public credit of the Commonweath (xxx.) The relations of the Commonwealth (i.e. the Commonwealth as a whole) with the islands of the Pacific." But the terms of s. 51 do not exclusively vest in the Parliament of the Commonwealth or withdraw from the Parliament of a State any powers previously possessed by a State. Such powers as those to which reference has been made, e.g. borrowing on the public credit of the Commonwealth, are powers which did not exist before the creation of the Commonwealth and therefore were never powers possessed by the States. Section 107 of the Constitution provides as follows: - "Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be." Section 51 (xxxvii.) does not provide that any power of the Parliament of a colony which becomes a State should become exclusively vested in the Commonwealth Parliament or be withdrawn from the Parliament of the State. It is s. 52, and not s. 51, which gives exclusive powers to the Commonwealth Parliament. Therefore the powers of the State Parliament are not diminished when an Act is passed to refer a matter under s. 51 (xxxvii.).

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Judgment (37 paragraphs)

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