Pirrie v McFarlane [1925] HCA 30

Pirrie v McFarlane [1925] HCA 30 - HCA 1925 case summary — Zoe

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person who wnlawfully obstructs or interferes with any member of the Defence Force in the performance of any military service or dutyshall be liable to a penalty. Sec. 108 empowers the officer commanding a corps to punish offences against the Act or Regulations committed by any member of the Defence Force. Reg. 494 of the Australian Military Regulations 1916 (Statutory Rules 1916, No. 166) provides for the punishment of any person subject to military law who (xii,) disobeys any lawful command given by his superior officer. It wai argued that these provisions constituted a law of the Commonwealth commanding any member of the Defence Force to obey the order of his superior officer to drive a motor-car on a public highway in Victoria, although such member was not licensed to drive under the Victorian Motor Car Act; that such a law was inconsistent with the law of Victoria forbidding any person to drive a motor-car on a public highway without being licensed for that purpose; and that by force of sec. 109 of the Constitution the law of the Commonwealth must prevail over Victorian law. If the first proposition were well founded, the others would necessarily follow ; but, in my opinion, the Act and regulations referred to have not the effect attributed to them. The law of the Commonwealth, i.e., the regulation in question, requires the soldier to obey, not any command, but any /awful command, and in order to sustain the argument for the defendant it must be shown that the officer who gave the order had lawful authority to order a person not licensed for that purpose under the Victorian Act to drive a motor-car on a public highway in Vietori A command, to be lawful, must not be contrary to ordinary civil law; and the civil law in Victoria as to the use of highways and #l regulation of traffic thereon includes all enactments of the Parliam of Victoria relevant to those matters, subject always to qualifications introduced by sec. 109 of the Constitution that, if am such enactment is inconsistent with a law of the Commonwealth, the law of the Commonwealth shall prevail. Prima facie, then, 6 of the Motor Car Act, which is obviously an enactment dealing wit

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customs - is expressly, by secs. 106 and 107, eliminated from State Constitutions, because made exclusive by sec. 52, and transferred - co nomine to the Commonwealth, its control is necessarily by force of the very words of the Constitution placed outside the ambit of the - State Constitutions and beyond any power of the State to affect it. No State Act can operate on that extraneous field. In the event of an existing Commonwealth power and an existing State power being simultaneously exercised on their admitted respective and concurrent fields, then, if there be conflict at any point, sec. 109 applies to adjust the matter. The doctrine that "implied prohibitions" are inadmissible to cut down the exercise of an admittedly granted governmental power is not inconsistent with the position (1) that the State Parliament cannot legislate at all so as to bind the Crown in right of the Commonwealth in the exercise of the very governmental functions expressly taken from the States and exclusively vested in the Commonwealth, and (2) that, where there is found inconsistent Commonwealth and State legislation, both competently enacted as far as the range of constitutional power is concerned, the former prevails. The first of these two considerations is inseparably connected with the construction of sec. 24 of the Victorian Motor Car Act, and so necessarily involves the construction of the Constitution with reference to the limits of powers inter se. Consequently, the first point, namely, the construction of sec. 24, before the Supreme Court, could not be dealt with as an ordinary matter of verbal interpretatio Their Honors, after partly hearing the case, obviously perceivi that position and, seeing that, however regarded, the matter involved. a constitutional question inter se, falling within the terms of sec. 404 of the Judiciary Act, declined to proceed further, and allowed section to operate of its own force. The limits inter se of thi respective constitutional powers of Commonwealth and State cat into question in a double aspect. They arose, as already shown, i controversy between the litigants, requiring the decision of some Court of Justice. But again they arose when the question presen! itself: Which Court? The State Court - apart from the Common- wealth Judiciary Act - would have had ample jurisdiction determine the controversy as to whether the defendant transgressed the State Motor Car Act 1915. The fact that '

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'source of the contested power material. It may be based upon the common law, or on the direct provisions of a written constitution, or on the intermediate authority of a statute founded on the Constitution. The limits are plainly in dispute when a Common- wealth law assumes the power, and that power is denied, to divest a State Court of its pre-existing jurisdiction in a matter within the Commonwealth judicial power and to invest it with Federal jurisdiction at the discretion of the Parliament, in relation to that matter, or to make the jurisdiction of the High Court exclusive. The commanding factor, in my opinion, is what I have described as the mandate to this Court of the Commonwealth Parliament contained in sec. 41 of the Judiciary Act. When a Commonwealth Act says this Court shall " proceed" to hear a matter within the judicial power, some clear and cogent reason must be found to justify the Court in disregarding it. When that mandate is seen to be part _ of a scheme of legislation founded upon the express words of sec. 77

of the Constitution, it is to be obeyed, unless qualified by some other "valid legislation or some other portion of the Constitution itself. _ There is no contrary legislation. Reference to other portions of the Constitution so far from qualifying the mandate makes it specially imperative. Secs. 38a, 40a and 41 are to be read with sec. 74 of the Constitution. They were passed for the definite purpose of preventing sec. 74 of the Constitution either from continuing to be, as it proved to be, a source of conflict between the Privy Council and this Court, or from becoming a mere dead letter. No one who merely reads sec. 74 of the Constitution can suppose it could remain a dead letter or suppose that it was intended as a source of conflict __ between two final tribunals. No one who reads it as an integral _ and living part of the instrument of self-government fashioned for the most part by the Australian people themselves and, as it stands, directly accepted by them, could doubt the relative importance of

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the provision, And, going still further, no one already familiar with the history of sec. 74 or reading that history, as, for instance, in Quick and Garran's Constitution of the Australian Commonwealth, pp. 228 et seqq., would venture to weaken its clear intention that, on the purely Australian question of the distribution of the totality of governmental powers on this continent, the High Court of Australia - - the highest judicial organ created by the Australian people - was to be the final arbiter, unless it voluntarily requested the intervention of the Sovereign in Council. I refer to and incorporate my observations in Bazter's Case (1). At one time unfortunately there did arise, as is well known, a conflict of legal opinion between the Privy Council and this Court. It can be found recorded in Bazter v. Commissioners of Taxation (N.S.W.) (2) and Flint v. Webb (3). Circumstances rendered an expression of opinion by the Judicial Committee on the law of that conflict unnecessary (Commissioners of Taxation (N.S.W.) v. Bazter (4)). Notwithstanding a difference of opinion in this Court on the merits of those cases, the whole Court (Griffith C.J., Barton, O'Connor, Isaacs and Higgins JJ.) were unanimous in maintaining the duty of this Court to regard its decisions in constitutional issues of the nature mentioned as absolutely final and free from revision by the Privy Council except at its own request. That decision still stands unimpaired. The power of the Commonwealth Parliament under sec. 77 (I.) as one means of avoiding conflict was expressly indicated by members of the Bench (5). About four months afterwards, the Commonwealth Parliament enacted the statute No. 8 of 1907, which (inter alia) added secs. 384 and 40a to the Judiciary Act, and so amended see. 41 as to bring it into its present form. It cannot, therefore, be denied - that the Commonwealth Parliament deliberately confined, so far - as it could - unless it deprived State Supreme Courts of all jurisdiction _ in matters coming within the Federal judicial power - the legal 4 determination of the constitutional distribution of governmental - power in Australia to the Australian Court. In my opinion, there

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vy. Limerick Steamship Co. (1). See. 77 (1) of the Constitution seems to me too plain to admit of the opposite view. The word " matter" in sec. 76 does not, of course, mean simply the particular constitutional question or other legal question which identifies: the litigation with the section. In this it differs essentially from the word "question" in sec. 74. "Matter" means the whole controversy - the matter litigated (see South Australia v. Victoria (2)). For instance, looking at sec. 75, the "matter" would not necessarily be simply that part of the controversy depending on the construction or effect of a treaty, or that part of the controversy relating to a consul or the Commonwealth. There might be other necessary parties and other essential questions, all of which would be factors constituting the "matter." The controversy is not intended to be decided piecemeal by different tribunals, State and Federal. If, then, the " matter" is once identified as falling under one or other of the specified heads, it is part of the judicial power of the Commonwealth, and may be dealt with as the Commonwealth Parliament has dealt with such matters in the sections under review. 3. Air Force Act and Motor Car Act. - The vital question as to the charge laid against McFarlane is this: Is insistence on applying sec. 6 of the Motor Car Act to asoldier of the Air Force performing military duty incompatible with the Constitution or the Air Force Act? Thi second ground relied on by the Police Magistrate is in itself sufficient to sustain his decision and dispose of the charge. I assume that, at all events apart from the prohibition in the Motor Car Act, the command to McFarlane was lawful and his obedience was law: But he was acting as a soldier, that is, as a servant of the Crown in tight of the Commonwealth (see per Lord Selborne in Dison v. London Small Arms Co. (3)). The Motor Car Act would not, ap from sec. 24, affect servants of the Crown acting officially. the Parliament of Victoria recognized by sec. 24 in expressly (1) (1924) 35 C.L.R., 69. at pp. 89, 90. (2) (1911) 12 C.L.R, 667. (3) (1876) 1 App. Cae., at p. 660. ]

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extending it to Crown officers. But that extension, I entirely agree H.C. or A. with the Magistrate, must, having regard to the Federal Constitution, i be read as relating only to the privileges of the Crown in right of Prem Victoria, and not as attempting to affect the Crown in right of the wiapiabink: Commonwealth. Sec. 52 of the Constitution declares the legislative power of the Commonwealth exclusive in respect of the Department of Naval and Military Defence. The other ground taken by the "Police Magistrate is equally sound, namely, that, even if, contrary to the point just dealt with, one can assume the Motor Car Act, upon construction, to apply to McFarlane in the circumstances, it is pro tanto invalid. And, in my opinion, it is to that extent invalid for two distinct reasons independent of each other. The

first is that an enactment expressly or by necessary implication F purporting to bind the Crown in right of the Commonwealth in respect of " primary and inalienable functions of the constitutional : government " of the Commonwealth - that is, of the King in right _ of the Commonwealth (see Coomber v. Justices of Berks (1) ) - is entirely outside the range of the State Constitution. Those functions : were expressly taken from the States and vested exclusively in the ~ Commonwealth by the Constitution itself. They are functions that no individual could exercise as a private citizen or otherwise than as representing His Majesty the King. State Constitutions and 7 arliamentary powers must, by virtue of secs. 106 and 107 of the wealth Constitution, be read as not extending to powers usively vested in the Parliament of the Commonwealth. The ; y control of the Crown in respect of those functions rests in 'the Commonwealth Parliament or, theoretically, in the Imperial Parliament. If that be not correct, the State Parliament by omitting sec. 24 would not affect the Governor of the State in opening the Victorian Parliament, but would penalize the Governor- General as an individual while engaged in representing the King _in opening the Commonwealth Parliament. And this, although - except where expresssly stated to the contrary - for Commonwealth purposes Australia is one undivided territory holding one undivided people and knowing no State boundaries for effectuating its national | purposes. I confess my inability to subscribe to any doctrine that (1) (1883) 9 App. Cas, 61, at p. 74.

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military law. Offences of a military character are enumerated in the Act and Regulations and the Army Act." The latter reference to the Army Act is of course inapplicable to the Air Force. The other regulation is reg. 494, by which it is provided : - * When not on active service every person, subject to military law, who commits any of the following offences, that is to say . . . (xii) disobeys any lawful command given by his superior officer shall on conviction by Court Martial, or by a civil Court, be liable to suffer one or more of the penalties set forth in regulation 495." Those penalties are severe, and include imprisonment with hard labour up to three months and discharge with ignominy. These two regulations, reg. 488 and reg. 494 (xii.), should be considered together. Each has a history. The admonition reg. 488 is not a novel enactment, but is the restatement of ; fundamental principle of British jurisprudence. Sir James Mansfiel C.J. in Burdett v. Abbot (1) said that because men are soldiers do not cease to be citizens, but have all the rights and duties of other citizens. But the same may be said of every public functionary. a Judge, a Minister of the Crown, a member of Parliament, counsel witness in a Court of law. They have each aspecial status whieh: the due performance of their public functions carries with it 5 duties, rights and immunities that are outside the scope of ordin citizenship. It would be illegal to do anything to weaken th obligation or their power to render the necessary public serv (Wood v. Victorian Pier and Pavilion (Colwyn Bay) Co. (2))- taking the case of a Federal Judge or a Commonwealth member 0 Parliament, can it be seriously contended that in relation to th actual performance of their official duties they are - simply bee they are also citizens - bound to conform to State statutor directions ? I hold without reservation that not even prima faci have they any obligation to observe State law in the performance 9 their Commonwealth duties. And I hold that, even supposing is not a syllable in any Commonwealth Act which directly or ind relieves them of such an obligation. Once the assumption is that their act is one of actual performance of Commonwealth 0 duty required by the Commonwealth law, then any State law whit (1) (1812) 4 Taunt. 401, at p. 449. (2) (1913) 29 TLR. 317, at p. !

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the newly-created National Bank of the United States; and, in place of deciding that the National Congress could by Act forbid the payment of the tax - isolate the Bank, as it could isolate a fortress, from State attacks - the Supreme Court propounded the doctrine that all taxation of a Federal agency was illegal. Subse quently the same Court propounded a correlative right of a State' to be immune from Federal taxation. But it may now be taken to be established in Australia, as well as in England, that this doctrine, in its extreme form, will not be accepted. As the Chief Justice has pointed out, if and so far as a member of the Defence Force ought, in the opinion of the Federal Parliament, to be exemy from the operation of the State laws, that Parliament has only to say so by an Act; and the Federal Act prevails over any State Act so far as they are inconsistent (Constitution, sec. 109). Great care will, of course, have to be taken in framing such a Fed Act; as an Act which goes too far in excluding State Acts produce much injustice and confusion. The view taken by this Court in the Engineers' Case (2), and in this case as its corollary, will no doubt have far-reaching - and, if I am entitled to say so, wholesome - reactions. The decisions based on McCulloch vy. Maryland (1) have never been undisputed; and th judgment of the present Chief Justice cannot therefore be acci of any startling novelty. Twenty or twenty-one years ago decision that a Victorian, employed in the Post Office, who paid Victorian income tax before Federation, had not to pay it a Federation, was much canvassed among lawyers and in the pul press; and men wanted to know where this principle was to found in the new Constitution. I was at the Bar at the time; and may not be amiss for me to mention (for I can speak more definitely as to my own acts than as to the acts of others), that I ventured to express my doubt as to the law laid down in the Income Tax Case, the Commonwealth Law Review, vol. 11, 1904-1905, p.97; and when (1) (1819) 4 Wheat. 316. (2) (1920) 28 C.L.R. 129.

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'I came to the Bench, I freely expressed my doubt (Baster v. Commissioners of Taxation (N.S.W.) (1)). Subsequently, from time to time, I regarded it as my duty to reiterate my doubt on suitable occasions, and to express my hope that the cases based on McCulloch y. Maryland (2) would be reconsidered (see, e.g., Steel Rails Case (3) ; Wheat Lumpers' Case (4); Engineers' Case (5)). Moreover, we have the support of certain decisions of the Judicial Committee of the Privy Council as to similar problems arising in Canada. In Bank Of Toronto v. Lambe (6) a direct tax was imposed by a Province, 'under sec. 92 of the Canadian Constitution, upon banks which carried on business within the Province, and it was held to be enforceable against a bank incorporated by Act of the Parliament of Canada. It was urged that the Canadian Parliament had powers under sec. 91, and that the Parliament could not exercise these powers freely : if Canadian banks were to be treated as being subject to taxation by the provincial legislature; and McCulloch v. Maryland was cited insupport. The Judicial Committee refused to apply to the Canadian Constitution the principles of that case (7) : - " The appellant invokes

that principle to support the conclusion that the Federation Act must be so construed as to allow no power to the provincial legis- es under sec. 92, which may by possibility, and if exercised in ie extravagant way, interfere with the objects of the Dominion exercising their powers under sec. 91. . . . If they" (their Lordships) " find that on the due construction of the Act a legislative wer falls within sec. 92, it would be quite wrong of them to deny existence because by some possibility it may be abused, or may limit the range which otherwise would be open to the Dominion Parliament." 'This position has been adhered to consistently in a series of recent interesting cases - John Deere Plow Co. v. Wharton (8); Great West Saddlery Co. v. The King (9); Caron v. The King (10). In Canada, the powers given to the Dominion Parliament under sec. 91 and the powers given to the provincial legislatures by sec. 92 are mutually

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involve any question as to the limits ier se of the constitutional. powers of the Commonwealth and those of any State or States? The : Motor Car Act was undoubtedly enacted pursuant to the consti- tutional powers of the State, but it encountered, according to the argument for the defendant, the constitutional prohibition against interference with Commonwealth instrumentalities (D'2mden vy, Pedder (1)) or legislation enacted by the Commonwealth pursuant to its constitutional powers and inconsistent with the State legislation. That, in my opinion, directly raises questions as to the limits inter se of the constitutional powers of the Commonwealth and the State (Jones v. Commonwealth Court of Conciliation and Arbitration (2) ). Now, if the Supreme Court had been of opinion that the Motor Car Act 1915 was limited in its operation to those servants of the Crown who were controlled by the Government of Victoria, then it ought, I apprehend, to have disposed of the case according to its own decision in In re Drew (3). But it was evidently of opinion that questions as to the limits inter se of the constitutional powers - of the Commonwealth and the State necessarily arose, and required - determination in the case. Consequently, it gave no decision, and proceeded no further with the cause, in accordance with the provisions of sec. 40a of the Judiciary Act. And in taking that course the Supreme Court acted, in my opinion, in strict accordance with the law. It will be convenient, however, to postpone consideration of | the construction of the Motor Car Act to a later stage, and to consider now the validity of the provisions contained in sec. 40a of the Judiciary Act. The Parliament enacted the section for the express purpose of avoiding conflicts between the Judicial Committee and this Co upon questions as to the limits infer se of the constitutional powe of the Commonwealth and the States or of the States inter se, and for the purpose of giving full effect to the provisions of sec. 74 of the Constitution. "The plan adopted, therefore," as is said by Professor 4. Berriedale Keith in his work on Respo Government in the Dominions, vol. Tu, p. 1372, "is to debar Supreme Courts from ever pronouncing a decision on any questi

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Australian Military Regulations (Statutory Rules 1916, No. 166) and the dir Force Regulations (Statutory Rules 1922, No. 160). An Air Force is organized under the Defence and Air Force Acts with - all necessary arms and equipment for training in peace and service in war. And its government, discipline, and military duty are - provided for on much the same lines as in Great Britain. These Acts restrict to some extent the civil rights and duties of soldiers, but nowhere do they exempt them from obedience to the civil law. If the Imperial Parliament had prescribed that no person should - drive a motor-car upon any public highway in Great Britain without _ being licensed for that purpose and declared that the law should apply to persons in the public service of the Crown as well as to other persons, the duty of soldiers to obey that law would be clear (see Motor Car Act 1903 (3 Edw. VIL. c. 36); ef. Cooper v. Hawkins (1)). This duty would be superimposed upon their military obligations and in no wise inconsistent with them. What difference does it make that in Australia the Constitution has distributed legislative power between the Commonwealth and the States? Unless there be some limitation upon the States, expressed or implied - in the Constitution, with respect to interference with persons who are Federal officers, then the case must be founded upon some inconsistency between the law of the State and the law of the Commonwealth. There is no express limitation in the Constitution, and the Engineers' Case (2) denies any such implied limitation. When a power exists in the States, then " they are entitled to the - same complete independence in its exercise as is the national govern- ment in wielding its own authority," subject only to the provisions of sec. 109 of the Constitution (cf. Cooley's Principles of Constitutional Law, 3rd ed., p. 35). The Motor Car Act, it is said, will paralyze the Defence Forces of the Commonwealth and impair the efficiency of their service: they cannot, in Victoria, be trained in peace nor used in war without the sanction of the State. Extravagant arguments such as this may well be considered when the State passes legislation caleulated to lead to such dangerous consequences (cf. Caron v. The King (3) ). All the State has done in this case is to regulate

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