Pankhurst v Kiernan [1917] HCA 63

Bm ats obs Sec. 4 of the Unlawful Associations Act 1916-1917, in so far as it

an offence during the present state of war to encourage the destructi

Barton, Isaacs, injury of property, is a valid exercise of the defence power of the Commonvi Gavan Duty, Parliament conferred by see. 51 (v1.) and (xxxtx.) of the Constitution. owwers an Rich JJ.

So held by Barton, Isaacs, Gavan Duffy, Powers and Rich JJ., Higg dissenting.

Farey v. Burvett, 21 C.L.R., 433, followed and applied.

Per Higgins J.: In order that an Act of the Commonwealth Parliamen for the protection of private property may be valid as being within the d power, it must at least appear in the Act either by express words or by neo

for the distinctive object of the defence of Australia. Parey v. Bu 21 C.LR., 433, distinguished. 2

At the Court of Petty Sessions at Melbourne on 9th. October 1917 an information was heard whereby Michael Joseph Kiernan cha ' that Adela Constantia Mary Pankhurst on 20th September

at Yarraville, did, contrary to the provisions of the Unlawful Associa- tions Act 1916, encourage the injury of property. Evidence was given that at a meeting at Yarraville at which about 2000 persons were present the defendant made a speech in the course of which she said :

• Do you realize that throughout the world they have made in excess profits of war twenty millions for the last three years. They can easily stand a strike ; it does not matter if they do lose a few millions now. As far as we are concerned the Government does not care a bit; we had to adopt other methods ; you saw the results of it last night. Panes of glass smashed, - anyway glass windows have got no feeling whatever. Now, friends, if we can hold out we feel we have the Government in a cleft stick. The Government has got to keep order; the business people won't stand much of it. Well, Mr. Hughes thought that, if they got rid of me, there would be no more of it. The very fact that the people know that they are going to get rid of me is stirring them up to more efforts. It is quite obvious, men, that I did not do £5,000 worth of damage myself, even if I am a very dangerous person. Mr. Hughes says he is going to use a firm hand. I do not think they are going to do all they say ; still this cannot go on without some notice being taken. There was £5,000 worth of damage done, and five persons arrested. One person for every £1,000 worth of damage. Supposing he does send some of us to gaol, there will be others to take their places, and it will take a year or two to build gaols to hold us. They may bring out the military ; we know perfectly well they can call the military out. We are going to have another demonstration on Monday night next. They may call out the military then. But who are the military? Your sons and husbands, your brothers. Mr. Hughes knows if he calls the military out the chances are they would shoot the other way. Supposing he got some of them to do it, what would happen to the country ? Do you think they would get more troops? Where do they get the recruits from, friends? The working-class people. Now, if they shoot the working man, they cannot expect him to shoot for them. If it were asking for some- thing that we were not entitled to, it would be different. But we only ask them to do what they should do: reduce the price of food to the people of this country. Whilst the people are suffering, they

do not seem to care a bit. You touch their pockets and you wi immediately begin to get something. Therefore, friends, we sa keep on in that way. Some of us are going to get into trouble this. We have already got a sentence of nine months. There a ladies here. now who were in front of the procession and carric the red flag right up the steps of Parliament House, and we say we were only too glad, too proud, to get a chance to do it. We knoy the time is coming when the workers are going to say : - * We will no longer allow our wealth to be in the hands of a few private ind ; viduals. We will no longer allow production to be carried on for profits.' Now, friends, I thank you for listening so attentively. We give you a cordial invitation to attend on Monday night."

The defendant, having been convicted, appealed to the Hi Court by way of order to review on the grounds that sec. 4 of the Unlawful Associations Act 1916-1917 is ultra vires the Common- wealth Parliament, that that section is an infringement of sec. of the Constitution and invalid, and that there was no evidence

that the defendant encouraged the injury of property within the meaning of the said sec. 4. :

Other material facts are stated in the judgment of Barton hereunder.

Flannery, for the appellant. There is no evidence which sustain the charge. The word " encourages" in sec. 4 of the Unlawful Associations Act implies an incitement to further action. It is not satisfied by an approval of what has been done before. (See R. v. Most (1).) The evidence may show that the appellant en-

property. Sec. 4 is ultra vires the Commonwealth Parliament, - because it includes in its terms matters which may be within defence power of the Commonwealth and matters which cannot be within that power, and there cannot be any severance. The pre vention of all classes of disorder during time of war is not within the defence power. If it were, then the rights reserved to the State would be suspended at the will of the Commonwealth Parliament

during time of war, and even during time of peace, for the Common- wealth can act under the defence power in time of peace in regard to a prospective war as well as in time of war. The Commonwealth Parliament may enact a rule of conduct which is referable to defence, and may give to a military officer a discretion to be exercised on some basis referable to defence to punish persons who offend against such a rule of conduct. But it is beyond the power of that Parlia- ment to enact a rule of conduct which may or may not be referable todefence. The Parliament may prohibit the encouragement of the destruction of property which is useful for military purposes, but it cannot prohibit the encouragement of the destruction of property generally, for that may include property which is not and cannot be useful for military purposes. The defence power is one the limits of which can be defined by this Court. In the case of any particular exercise of power which is sought to be brought under the defence power, this Court must be able to say that such an exercise of power is capable of aiding the defence of the Commonwealth. The power cannot extend to a general power to make laws for the peace, order, and good government of the Commonwealth. It is not suffi- 'cient to bring a matter within the defence power that Parliament should say that it is necessary for defence. This Court has to inquire whether the particular matter is capable of referring only to the defence power. he preservation of property generally cannot be within the defence power unless property be regarded as wealth, and, if that view be adopted, then every effort which tends to produce wealth is of necessity capable of being used for defence, and so can be regulated by the Commonwealth Parliament. In Farey v. Burvett (1) the majority of the Court held that the defence pewer is limited to the regulation of things which can have an effect on the prosecution of the War, and that on the facts of that case the regula- tion of the price of bread in particular localities could possibly have such an effect. [Counsel also referred to In re a Petition of Right (2).]

In the last mentioned case the Court did inquire whether the ship was urgently required for the prosecution of the War, and

(1) 21 .L.R., 433. : (2) (1915) 3 K.B., 649. (3) (1916) 2 A.C., 77, at pp. 106-107.

of the Crown as conclusive. The proper test as to the validity this law is that laid down in R. v. Barger (1), namely, having found out what the law is irrespective of the label attached to it by the Parliament, to consider whether its subject matter is within the co petency of the Parliament, that is, in this particular instance whether the law is within the power conferred by sec. 51 (v1.) of the Con- stitution. The test to be applied in determining that question is whether or not the matters which are regulated by the Act can possibly be useful for the prosecution of the War. Sec. 4 of the Unlawful Associations Act is a general law passed in reliance on special power. There must be some line of demarcation between things which can be useful for defence and those which cannot, and that line has been passed in this case. It is sufficient for the val of an Act that it is really relevant to defence, and it need not neces- sarily be directly relevant to defence.

Knox K.C. (with him Barton), for the respondent. Sec. 4 shou be construed as directed to incitement to the destruction of prope! generally. The destruction might be negligible, but the advocacy might be very dangerous. The gist of the section is the advocacy. - Whether that is the proper construction of the section or whether - it is directed to the prevention of injury to any property, the ques-_ tion of its validity is concluded by Farey v. Burvett (2). In that case this Court held that sec. 4 (1a) (b) of the War Precautions Act 1914-1916 was valid. That provision gives the Governor- General in Council power to give any direction he thinks proper as to disposal or use of any property. If that is valid, then the Parliament - must itself have the power which it gives to the Governor-General. - It follows that it may enact provisions for the disposal of any property in the Commonwealth. If that be so, then as a precat- tionary or ancilliary measure it may enact a law to protect that property which the Governor-General may under sec. 4 (14) o) regulate or under sec. 4 (1a) (c) requisition. It is impossible predicate of any property that it cannot be of service for defence

either directly or indirectly. That case concedes the right of the Commonwealth Parliament in time of war under the defence power to exercise absolute dominion over every article of property in the Commonwealth. The Parliarnent must have the power to preserve by any means it thinks adequate that property which it has a right to take. [Counsel referred to The Zamora (1).]

Barton J. The applicant was on 9th October last convicted of having on the preceding 20th September at Yarraville in Victoria, contrary to the provisions of the Unlawful Associations Act 1916, encouraged the injury of property. The information was laid by the respondent, an officer of police, under sec. 4 of the Act mentioned, which is as follows: '" Whoever advocates or encourages, or incites or instigates to the taking or endangering of human life, or the destruction or injury of property, shall be guilty of an offence. Penalty : Imprisonment for six months."

'The case was heard by a Police Magistrate at the Melbourne Petty Sessions. The applicant was sentenced to imprisonment for four months, the sentence to be suspended if she entered into a bond not to offend against the Act or to attend or speak at any meeting of more than fifteen persons without first obtaining the consent of the Attorney-General or Solicitor-General of the Commonwealth or a Police Magistrate. She declined to enter into the bond, and is in gaol. The proceeding is by way of an order nisi to review the sentence, and the argument of this case was upon the return of the order.

The grounds are: (1) that sec. 4 of the Act is ultra vires of the Commonwealth Parliament ; (2) that the said section is an infringe- ment of sec. 80 of the Constitution and invalid; (3) that there was no evidence that the defendant encouraged the injury of property within the meaning of the section.

The second ground has been abandoned. Counsel for the applicant argued the third ground first, and then the first ground. I shall

follow that order, and shall therefore assume in the first ins'

people. This speech was reported in shorthand by Constable MeL who attended the meeting in company with the respondent. said that the meeting was called for the purpose of assisting the dependants of men affected by the industrial upheaval ; that, 80 far as he knew, no one as a result of the speech destroyed any pro- perty ; and that the part of the speech he put in evidence was only a small part of what the speaker said. That which was put in dence was the transcription of the shorthand notes and the no themselves. The respondent also took shorthand notes, which put in evidence. These were not transcribed, nor was there an} cross-examination upon them except that it was elicited that his shorthand notes were not identical with those of the previous wit because he missed more and was only able to write sentences and there. That, with the speech, part of which I shall quote, the whole of the evidence for the prosecution, and no evidence was called for the defence of the applicant. The case of R. v. Most (1) was cited, in which the Court for Crown Cases Reserved sustained a conviction under 24 & 25 Vict. ¢. 100, sec. 4, for a criminal libel by which the defendant (énter alia) e deavoured to encourage, &c., the commission of the crimes assassination and murder. The case was cited only for the purpo of quoting some words in the judgment of Huddleston B., i which he gave to the word " encourage " in the section this meaning: "To intimate, to incite to anything, to give courage to, to inspirit, - to embolden, to raise confidence, to make confident." 'The applicant's speech cannot be read without perceiving that it was an encourage ment, within the meaning of the words quoted, of the injury property. But those words are not a statutory, nor in any s an exhaustive, definition, The word " encourage," indeed, is plain enough, and needs no definition. The applicant suggested, and tried to induce, the continuance of window-breaking. She showed her approbation of - nay, her exultation in - the doing of damage to (L) 7 Q.B.D., 244.

the value of £5,000 by the smashing of windows on the previous night. If that was not encouragement, what was it? I extract part of her speech. After urging that the makers of excess profits could "easily stand a strike," and that the Government was careless so far as she and her hearers were concerned, she said these words: - " We had to. adopt other methods; you saw the results of it last night. Panes of glass smashed, - any- way glass windows have got no feeling whatever. Now, friends, if we can hold out we feel we have got the Government in a cleft

stick, . . . The very fact that the people know that they" (the Government) " are going to get rid of me is stirring them " (the people) "up to more efforts. . . . There was £5,000 worth

of damage done, and five persons arrested. One person for every £1,000 worth of damage. Supposing he " (Mr. Hughes) " does send some of us to gaol, there will be others to take their places, and it will take a year or two to build gaols to hold us." Then after pointing out that if the military were called out the chances were they would shoot the other way, and that if Mr. Hughes got some of them to shoot the result would be a failure to obtain recruits, she said : - '* You touch their pockets and you will immediately begin to get something. Therefore, friends, we say to keep on in that way. . . . The time is coming when the workers are going to say : - We will no longer allow our wealth to be in the hands of a few private individuals. We will no longer allow production to be carried on for profits.' "

These extracts speak for themselves. I decline to give serious consideration to the view that there was not evidence on which the Police Magistrate could properly find that the utterances of the applicant amounted to the forbidden encouragement within the mean- ing of the section. They were much more than ample to sustain such a finding. If, then, the section is valid, the conviction must be sustained.

As to the validity of the section, Mr. Flannery for the applicant did not impugn the authority of the case of Farey v. Burvett (1). In that case the question was as to the validity of a certain regula- tion made in pursuance of the War Precautions Act and an order,

which order under the regulation fixed the maximum price of bre in certain proclaimed areas. The regulation was framed under ;

General (in Council) to make such regulations as he thought desirable for the more effectual prosecution of the War, or the more effer defence of the Commonwealth or of the realm, prescribing regulating (b) the conditions (including times, places, and pric of the disposal or use of any property, goods, articles or th of any kind; and (c) the requisitioning of any goods, articles, things of any kind, Regulations framed under this provi were held in Farey v. Burvett to be good. The provision authorizi the making of the regulations was within the legislative power conferred by sec. 51 (v1.) and (xxxrx.) of the Constitution, and delegation of the regulative authority within that power to Governor-General in Council was also good. In that case the deci was by a majority of five judges. The view which appealed to fo of them at least, including myself, was somewhat wider than that entertained by my brother Higgins, but he arrived at the s ultimate decision. Our view was that, while an Act or regulatio might not be a measure of defence in time of peace, it might be such a measure in time of war. In such a war as the present, not merely armies but whole nations are engaged in a supreme struggle, which so far as this Empire is concerned is a struggle for the preservati 1 of liberty. It was a defence of the autonomous existence of every part of the Empire, no matter where the fighting was actually _

preservation. If a measure were capable of contributing to the common defence, it was for the Court to affirm that capability, and to go no further. But whether it did so contribute was a ques-

such a conclusion by passing an Act, then the function of this Court in deciding whether it was constitutionally valid was to say whether _ the form of law had been given to something which was capable of _

assisting in defence. That was the division between the functions of the lawmaker and the lawgiver. In the particular case a measure for the conservation of the food supply, or one for the prevention of inordinate profits on its sale, or one for the better provisioning of the people, might or might not be necessary. The Court was to say whether in conceivable circumstances of war it might be so. But there its functions stopped. Whether it was in fact necessary or wise in the particular instance was for the Legislature to determine.

Now, I take it that the principle laid down in Farey v. Burvett (1) is not confined to questions of food supply. It extends to all the resources of a people, and all those resources may upon need in time of war be placed by Parliament at the disposal of the Government for purposes of defence if they are capable of subserving those purposes. More, it is competent to Parliament to pass such legis- lation as may prevent any hampering or dislocation of the work of effectively prosecuting the War, that is, the defence of the country. It is not difficult to see that internal disorder may have such results, and that the destruction of property may diminish the resources of the people applicable to their defence. The wilful taking or endanger- ing of human life is of course in the same category. Now, the Act is not aimed at the punishment of these inroads upon life or property, but it deals with the advocacy or encouragement of, and incitements or instigations to, these acts. Such acts, committed in concert, are of course acts of public disorder, and equally of course any incitement to them is an endeavour to provoke such disorder. The preamble asserts that an association known as the Industrial Workers of the World and members thereof have been concerned in advocating and inciting to the commission of divers crimes and offences, and that it is expedient for the effective prosecution of the present war that laws shall be enacted for the suppression of such practices. Jt is to continue in force for the duration of the present war and a period of six months thereafter, but no longer (sec. 2). The Indus- trial Workers of the World, and also any association which, by its constitution or propaganda, advocates or encourages, or incites or instigates to, the taking or endangering of human life, or the destruc- tion or injury of property, are declared to be unlawful associations

(sec. 3). Sec. 4 has already been set out. Other sections deal (5) the promotion of actions calculated to interfere with the pro tion, manufacture or transport of troops, munitions of foodstuffs ; (6) the addition of deportation to the punishment of an offence under sec. 4 or sec. 5; (7) the printing or publishing of a writing encouraging, &c., the taking or endangering of human lif or the destruction or injury of property; and (8) the maki regulations not inconsistent with the Act for giving it better In my judgment the associations declared unlawful and the th made punishable by this Act are such as may easily tend in or less degree to the hampering or dislocation of the proper condue of the defence of Australia to the extent that such defence is in th hands of Parliament or Government. It is for us to say whetl they are capable of so tending. If we so determine, then we inquire into the necessity, or the propriety, or the wisdom of action which the Legislature has taken in affirmance of the of such tendency or in provision of means for its suppression, cannot Eye on that field. E

the constitution or propaganda of which encouraged, &e., inj to life or property, and in the second case to punish those similar encouragement or incitement. Sec. 4 is obviously the general scope of the enacting provisions as well as within t preamble. The incitement in sec. 3 (b) is by the constitution | propaganda. These will probably not refer to particular p or particular pieces of property, but rather to some general obje of the association inimical to life or property generally, or the lis or property of a class of persons. That may or may not be. Bi that paragraph throws a light upon the closely similar words of se 4, If in 3 (6) the words refer, as they probably do, to a course of conduct, then it is the advocacy of the destructi

whether the particular class or piece of property to be at selected by the advocate or by the person incited. In this sec. 7 (g) of the amending Act No. 14 of 1917 is of some

as showing the intention with which Parliament enacted the two H- ©. oF A.

T have cited sec. 4 (14), pars. (b) and (c), of the War Precautions Act. Panxuurst 'These being valid provisions in aid of defence, it does seem that the ~ xyenwaw.

provisions of the Unlawful Associations Act are calculated to aid, be it much or little, the provisions in the War Precautions Act, and so to aid the purpose of defence.

I have no doubt that the provision attacked is valid, and I am of

opinion that the appeal must be dismissed and the rule nisi discharged ,

Isaacs J. Mr. Flannery presented his case as strongly and logi- cally as the materials he had to work upon would permit. But his position was hopeless. As to the validity of sec. 4, I cannot entertain the least doubt. In Farey v. Burvett (1) I stated my view of the defence power of the Commonwealth, and the function of this Court when appealed to in order to restrain the action of the Legislature with regard to it. I reaffirm what I there said, fortified by two confirmations - one 'Tegal and the other practical. 'The legal confirmation is the case of The Zamora (2), and the practical confirmation is the Federal Food Control Act in America, where State rights are even more extensive than in Australia.

The present case is, if possible, more clearly than Farey's Case within the ambit of Commonwealth power, because the destruction of or injury to property - including bread - involves its utter waste to the community, and consequently is much more serious than a rise in price, which still assumes the possibility of obtaining and using the commodity.

The American Act referred to inter alia goes so far as to forbid under penalties knowingly to commit waste, or wilfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture or distribution, as well as any agree- ment to exact excessive prices. " Necessaries" are defined, but the selection, being a matter of legislative discretion, could, of course, have been extended.

The main argument against the validity of sec. 4 was that it was

() 21. G.L.R., at p. 455. (2) (1916) 2 A.C., at p. 106.

too wide. It was said that some property might be unsuitable fo war purposes, and yet such property is covered by the section The answer is twofold. First, no one can ever say that any is useless for war purposes, even in the narrowest sense ; but ni and chiefly, all property in Australia is part of our national resoure or, in the language of Lord Stowell, part of the "common sto to which the Australian people - one people in war, and for purpose knowing no State divisions - have a right to regard colle tively as its means of support in every way for the purposes of th war, both in the lines and behind them.

Reading the section as part of the Act, and therefore interpre

precedes and what follows it - which is a sound canon of construction

• it is quite distinct from the ordinary criminal law of the St

very clearly by sec. 3 (6) of the principal Act and secs. 2 and 5 of the amending Act (No. 14 of 1917). That means that what the Act really strikes at as dangerous to the general welfare is the sy or method, or principle, or doctrine, or propaganda, or whatever may be called, by which human life and property are to be inj or destroyed, not as an isolated instance disconnected with ever}

Nothing can illustrate this better than the language of the appe herself. That language has been quoted by my learned broi a Barton.

The section no doubt includes incitement to destroy or injure i particular instances : it would reach to an incitement to kill one n or break one window; but that would be because the incit there is part of a general plan or system. It would be as distinet fron an ordinary isolated crime dependent on its own origin and confi to its own circumstances, as the instances of German atro forming part of their national system of " frightfulness" are d tinet from the ordinary local incidents of war. The who smashing 'of windows was seen by the appellant to be - and, ind

is on the surface - a thing which must surely lead to public insecurity and to the eventual hampering of all transactions in even the neces- saries of life, and consequently, if Farey v. Burvett (1) is good law, this is a much more obvious case for Federal interference.

Reading the section in the way indicated, it is clearly designed for the preservation of Australian life and property generally, and, as these are obviously essentials for national defence, the objection must fail.

If any question were possible as to any particular suggested pro- perty being necessary or not, I think the principles laid down in the Bread Case (1), and still more authoritatively affirmed by Lord Parker for the Privy Council in the case of The Zamora (2), would furnish a complete answer.

The section being valid, the only other question is as to whether the appellant's language fell within the terms of the provision. I think that it clearly did, and that this appeal ought to be dismissed.

Hicerys J. I concur in the view that there was evidence on which the Police Magistrate could fairly find that the appellant, by her 'speech, encouraged people to injure property by breaking windows, &e., in Melbourne. For the purposes of the law, it does not matter that the appellant hoped to force attention to the needs of the poor.

But the conviction is under a recent Federal Act, the Unlawful Associations Act 1916; and the point has been taken, that the sec- tion - see. 4 - is invalid, as being beyond the powers of the Federal Parliament. Q

Now, this Parliament has no power to make laws with regard to property, or for the protection of property. Property is to be pro- tected by the laws of the several States. But it is urged that the section is valid under the power (sec. 51 (v1.) ) to make laws for "the peace, order, and good government of the Commonwealth with respect to. . . the naval and military defence of the Com- monwealth," and with respect to " matters incidental to the execu- tion" of this power (pl. xxxux.). At first sight, the argument is startling to common sense. How can an Act providing for the protection of private windows from unruly citizens be treated as an

() 21 C.LR., 433. : (2) (1916) 2 A.C., at pp. 106-107.

Act " with respect to" the defence of the Commonwealth - defen from the foreign enemy and his adherents? The property in ques tion is not even property of the Defence Department. No di every good thing that we get under our internal policy contrib to the strength of the nation against aggression. Civie peace co tributes ; but so do good sewerage, good education, a good tramy y system. But Acts on these subjects are surely not Acts "y respect to . . . the naval and military defence of the Common wealth." The connection is too indirect and remote. But the respondent relies on the decision of this Court in the of Farey v. Burvett (1). In that case it was held that the Precautions Act 1914-1916 was valid in so far as it provided (thro governmental regulation) limits for the price of bread in cer populous localities. Defence is a matter of foree - force to be against the enemy ; and if that force is likely to be diminished by scarcity of bread, by excessive prices of bread, or dissipated in riots which so commonly accompany the want of bread, it may be a defence measure to keep the price of bread low. As in thee of a besieged city it may well be necessary or expedient, for purposes of defence, to provide for sufficient food for all the inh tants, and at fixed prices. Moreover, the very sub-section of the War Precautions Act which gave the power to make regulations fixing prices (sec. 4 (1a) ) specified '' the more effectual defence the Commonwealth " as an object to be aimed at by the regulati In short, Parliament treated the fixing of prices as conducing to the defence of the Commonwealth ; and, in my' opinion, we are bo to accept the statement of Parliament that it does so conduce unless we can see that the statement is obviously untrue or absurd. Parlia- ment in the Bread Case (1) legislated expressly " with respect to" defence. It is not for us, it is for Parliament, to say whether measure is effectual or futile, wise or unwise ; it is not for us to to evidence as to the necessity of the measure under the cire stances. It so happens that, before the passing of the Act now question, the wharf labourers of Melbourne had refused to load shij with flour destined for Great Britain and our Allies until the pt of bread here should be reduced. They were persuaded to aband

this attitude and to trust to Parliament; and Parliament may well have considered that in providing for the fixing of prices they were providing for "the more effectual defence of the Common- wealth " (as the section expressly says), by securing cheap bread and the supply of food for Great Britain and her Allies and the allied armies. But there is no such statement of a defence purpose in the Act now in question. There is no reference to defence at all. There is no indication of any intention to execute by this Act the power to make a law " with respect to defence." I do not go so far as to say that there must be a recital of an intention to exercise power under sec. 51 (v1.); but - on the principles applied in the case of ordinary powers of appointment - it must be clear on, the face of the instruments that the donee of the power intended that the price of bread should be fixed for the purposes of defence, that the donee meant to use the power conferred by sec. 51 (v1.) of the Constitution. The intention to execute the power in question must appear on the face of the document (Sugden on Powers, 8th ed., p. 289 ; Lake v. Currie (1) ; Cuninghame v. Anstruther (2) ). This principle becomes all the more vital when the Commonwealth Parliament purports to enact a law which, under ordinary circumstances, is within the competence of the State Parliaments only.

In the present case, if the appellant were prosecuted under the appropriate Victorian law, she would, it appears, be liable as an abettor or counsellor of the misdemeanour, to two years' imprisonment (Crimes Act 1915, secs. 197, 238, 319) ; whereas under this Federal Act, she is liable to imprisonment for six months only. The States, then, can legislate, and have legislated effectually, for the protection of properties within their several boundaries ; but no Parliament except the Commonwealth Parliament can provide a systematic regulation of the price of bread within Australia as a whole. Any such regulation would have to be on a uniform basis for Australia - I do not say uniform in prices for all parts of Australia, but framed on some uniform, general scheme; and the Federal Parliament only is competent to secure such uniformity. The connection between the power to defend Australia and maintaining

(1) 2D. M. & G., 536, at pp. 547-548. (2) LR. 2 HLL., Se., 223, at p. 233.

H.C. or A. the fighting force of Australia in full strength by regulations as

Panxuursr to defend Australia and the protection of property in the seve

bread is direct and obvious; the connection between thé

States from injury is indirect and remote. It may be (I do no decide it) that if Parliament had expressly said in this Act, as it said in the War Precautions Act, that the provision was for the " defence " of Australia we should be bound to accept the statement, But Parliament has not said so. The Act has the following recital - "Whereas an association known as the Industrial Workers of the World and members thereof have been concerned in adyocatir and inciting to the commission of divers crimes and offences : whereas it is expedient for the effective prosecution of the pre war that laws shall be enacted for the suppression of such practi Be it therefore enacted" &c. I may say in passing that it is not

of the World. But the point is that Parliament has not purport to legislate under the defence power (sec. 51 (vz) ). It p 7 indeed, to make the law " for the effective prosecution of the pre war"; but that is not necessarily the same thing. For instance one can conceive of a position in which all danger to Australia has vanished, and yet the War - the same war - is still being proseci for the purpose of obtaining Constantinople for the Greeks or the Russians, or Jerusalem for the Jews, or Dalmatia for Italy. For aught that appears, the draughtsman may have thought that th constitutional limitations were suspended during the War, and that any Act aimed at the effective prosecution of the War would, under all circumstances and for all purposes, be treated as valid. But the constitutional limitations are not suspended; we have to decid in accordance with the Constitution.

The limits of the war powers of the President and Congress of United States were severely strained in the Civil War of 1861-1860. The war gave birth to a host of crimes which were not previously punishable by law. The list is given in Whiting's War Powers, p. lt a book which reached its forty-third edition in 1871; but there no trace of any Statute making it illegal to injure or to encour injury of private property. The war proclamation of the President

emancipating the slaves was based on his right as commander-in- chief to embarrass or weaken the enemy, to strengthen the military power of the Union armies. The slaves who were forced to fight for the South were now enabled to fight for the North. The Presi- dent Clearly acted as for the " common defence " in his proclamation. So far as I can find, there is no precedent in any defence legislation of Congress for any such legislation as we have here to consider. But Congress has legislated in the present war for the sale by the President at reasonable prices of wheat, flour, meal, beans and potatoes, and for fixing the prices of coal and coke. This appears in an Act which expressly recites that the measure is " essential to the national security and defence."

I felt when we were deciding Farey v. Burvett (1), and I still feel, that the greatest care is needed in watching the attempts to extend the limits of this defence power. 1 see no reason whatever to doubt the propriety of the decision in that case; but that case does not involve the doctrine that any law that the Federal Parliament may make on any subject in time of war is valid. The Federal Parlia- ment is not empowered by the Constitution to make any law that it likes for " the peace, order, and good government of Australia " ; but it is empowered to make any law for the peace, order, and good government of Australia "with respect to . .-. the naval and military defence of the Commonwealth." I see that in my judgment in Farey v. Burvett | applied my mind to the net result of the three steps - Act, regulation, order. The net result was that the price of bread was fixed, and under the authority of Parliament legislating with respect to defence. Power was conferred on the Governor-General to make regulations "for the more effectual prosecution of the War, or the more effectual defence of the Common- wealth " as to (inter alia) " the conditions (including times, places and prices) of the disposal or use of any property goods articles or things of any kind." If it be said that the words just quoted involve a purpose which is legitimate - " the more effectual defence of the Commonwealth," and also a purpose which may possibly become illegitimate - " the more effectual prosecution of the War," my answer is that the latter purpose is not necessarily to be carried

out illegitimately. The War as it at present exists may sure treated as a war for the defence of Australia (as well as for tl defence of the Empire and of the world), although the operation are carried out in distant' parts. If a power be conferred whic according to its tenor, may be exercised either lawfully or un fully, the power is not invalid, but if it be exercised unlawfully execution is invalid. For instance, a power is not bad for

borough v. Attenborough (1); Slark v. Dakyns (2); Routledg Dorril (3); In ve Veale's Trusts (4) ). There is this distinctio between the Bread Case and this case: that in the former we ¥ dealing with a power executory, perhaps too wide in its tenor,

which was exercised lawfully (so far as appeared) by the done

quashed on the first ground, but not on the third. The s ground is not pressed.

Gavan Durry J. In my opinion the validity of sec. 4 of the

(4) 4 Ch. D., 61; 5 Ch. D., 622. (5) 21 C.L.R., 433. 7

Powers J. I agree with my learned brothers that there was evidence before the Magistrate sufficient to enable him to properly find that the appellant did encourage the injury of property within the meaning of sec. 4 of the Unlawful Associations Act 1916-1917. The ground that the section in question is an infringement of sec. 80 of the Constitution was abandoned by counsel for the appellant. The third ground of appeal was that sec. 4 of the Unlawful Associations Act is beyond the powers of the Constitution. Iconcurred in the judgment of this Court in Farey v. Burvett (1). I agree with the judgment delivered by my brothers Barton and Isaacs, and the reasons given by them why sec. 4 of the Act in ques- tion is valid.

Ricu J. I agree that there was evidence that the defendant encouraged the injury of property within the meaning of sec. 4 of

• the Unlawful Associations Act 1916-1917. With regard to the validity of the section I consider that this case is d fortiori to Farey v. Burvett (1), which is binding on me.

Appeal dismissed and order nisi discharged with costs.

Solicitors for the appellant, Loughrey & Douglas. Solicitor for the respondent, Gordon H. Castle, Crown Solicitor for the Commonwealth.