Queensland Newspapers Pty Ltd v McTavish

The premises consist of a part of Victory Chambers, Adelaide Street, Brisbane. They have been occupied by the respondent as a weekly tenant of the appellants but his tenancy was terminated by notice to quit expiring on 11th August 1950. The special magistrate was satisfied of the matters which under The Landlord and Tenant Acts 1948 to 1949 Q. would have enabled him to make an order for possession and he would have made such an order against the respondent, had it not been for regs. 28A and 30 of the National Security (War Service Moratorium) Regulations. The operation of regs. 28A and 30 has been terminated in New South Wales, Victoria, South Australia and Western Australia where their place has been taken by State legislation. But this has not been done in Queensland.

The respondent falls within the definition of a protected person contained in reg. 28A and complies with the conditions imposed by reg. 30 (1) (b). The special magistrate was not satisfied that reasonably suitable accommodation was available for the occupation of the respondent and on that ground only refused the order for possession.

The appellants base their appeal from the special magistrate's decision upon the contention that regs. 28A and 30 of the National Security (War Service Moratorium) Regulations are not now and were not at the material time in force in Queensland. They say that it is beyond the constitutional power of the Commonwealth to maintain them in force up to the relevant period of time. The relevant period of time is August 1950 and the legislation which purported to keep them alive in and throughout the year 1950 is the Defence (Transitional Provisions) Act 1946-1949. In Collins v. Hunter [1] this Court decided that regs. 30A to 30AF of the National Security (War Service Moratorium) Regulations, which dealt with the right of protected persons to take possession of dwelling houses which were unoccupied or about to become unoccupied, could not be validly maintained in operation in the year ending 31st December 1949. The Court held that in so far as the Defence (Transitional Provisions) Act 1946-1948 purported to give force and effect to regs. 30A to 30AF in that year, it was beyond the legislative powers of the Commonwealth. Regulations 28A and 30 however were not involved in the matter then before the Court. Subsequently, by the Defence (Transitional Provisions) Act 1949, s. 6 and 3rd Schedule, regs. 30A to 30AF were expressly abrogated. Regulation 30 in its earliest form was promulgated on 21st March 1941, eighteen months before the regulations which the Court has already held bad, but like the latter regulations, the purpose of reg. 30 as amended from time to time has been to deal with the difficulties arising during the war and immediately thereafter concerning the accommodation of servicemen, discharged servicemen and certain of their relatives and dependants. Regulation 30 is contained in Part V. of the Regulations and that Part was recast by Statutory Rules 1942 No. 437 on 14th October 1942, since when the substance of reg. 28A and reg. 30 has undergone no important change. But reg. 30 depended upon the operation of the National Security (Landlord and Tenant) Regulations and when on 16th August 1948 by orders made under reg. 7AA inserted in those regulations by Statutory Rules 1948 No. 108 their operation was brought to an end, it became necessary to redraw reg. 30 of the National Security (War Service Moratorium) Regulations in order to avoid its automatic termination as an accessory of the Landlord and Tenant Regulations. Regulation 30 in the old form was therefore replaced with a reg. 30 in a new form by Statutory Rules 1948 No. 109 (13th August 1948). This was done in purported pursuance of the power to make regulations conferred by s. 6 (2) of the Defence (Transitional Provisions) Act 1946-1947. There was no change however in the substantial character of reg. 30.

The effect of reg. 30 is to maintain in the occupation of premises a very wide class of persons, covering servicemen, ex-servicemen and certain of their connections, called protected persons. The premises in the occupation of which they are protected may be of almost any kind. The expression goes far beyond dwelling houses and business premises and, reading the definition literally, it appears to include bare land of any description. Exceptions are made of licensed premises and permanent residences temporarily let for holiday purposes.

The occupation of premises by a protected person is maintained whether the protected person is a lessee himself or is a person claiming under a lessee whose tenancy has been determined. In the case of a protected person who is a lessee no order may be made by a court for the recovery of possession of the premises from him or for his ejectment unless either he has failed in compliance with certain conditions that are laid down or else a heavy burden is discharged of showing that reasonably suitable alternative accommodation is available to the protected person in occupation and that the premises in question are reasonably required for specified purposes.

It is convenient to take the second alternative first. It is of a double character. The claimant must first show that the premises are reasonably required for one or other of certain enumerated purposes. The most commonplace is that the claimant requires the premises, if a dwelling house, for his own occupation or for some person residing with him and dependent upon him. If the premises are not a dwelling house the condition he must satisfy is that he reasonably requires them for his own occupation or for occupation by a person associated or connected with him in his trade, profession, calling or occupation. Other enumerated purposes relate to premises used or required for a parsonage or the like or a hospital or by a trustee for the personal occupation of a beneficiary or of a person residing with and dependent upon the beneficiary. The claimant, having established the existence of one of these reasonable necessities, must next show, as already stated, that reasonably suitable alternative accommodation exists available for the accommodation of the protected person in lieu of the premises which it is sought to recover. There is however a qualification to this; if the protected person has sublet the premises and has gone to reside elsewhere, that is enough. Before alternative accommodation can be considered reasonably suitable it must appear that the rent is not greater than that of the premises which the protected person occupies, that the floor area is not less, that the conditions appertaining to the new premises are not inferior to those of the old and in the case of a dwelling house that it is not less congenial.

But these necessities do not exist if the protected person can be brought within the first of the two alternatives mentioned, that is to say if it can be shown that he has broken one of the conditions imposed. It is enough if he has failed to pay the rent in respect of a period of eight weeks, if he has failed to perform a term or condition of the lease and there has been no waiver, if he has not taken reasonable care of the premises or of goods leased therewith, if he has committed waste, if he has been guilty of conduct amounting to a nuisance or annoyance to neighbouring occupiers or if he has been convicted during the currency of the lease of using the premises for an illegal purpose or if a court has found or declared that he has so used them. In certain very restricted conditions the fact that the occupier has assigned his lease or sublet without consent may be enough and, if the occupation is or has been by an employee whose place is to be taken by another employee, that may suffice.

It is not necessary to state fully the conditions governing the case of a protected person in occupation who is not himself a lessee but who claims under a lessee whose tenancy has been determined. The conditions are analogous, the failure to comply with the conditions being that of the protected person in occupation, not of the lessee under whom he holds. In the same way of course the alternative accommodation must be suitable for the protected person.

It is of course possible that a lessor seeking to recover possession of premises from a protected person is himself within the definition of protected person. If so his case is excluded from the operation of the foregoing provisions. Moreover where a protected person seeks to recover premises from a person who is not a protected person, no provision of State law making it necessary that there should be alternative accommodation for the defendant is to stand in the way of his recovery of possession.

Considered apart from the description of persons who are protected persons, the provisions we have summarized would not appear to have any present connection with the power to make laws with respect to defence. That connection depends upon the relation to defence which the category of protected persons possesses.

An examination of the provisions creating the category shows, in our opinion, that regs. 28A and 30 concern the situation arising in the course of the war and at the termination of hostilities, that is to say, they relate to conditions incidental to the conduct of the war and a situation arising from the necessity of raising maintaining and subsequently demobilizing armed forces. They are not regulations directed to the general relations for an indefinite time of former members of the armed forces serving in the war to other members of the community with reference to housing. Before anyone can be a protected person he must either be, or bear a relation to, a member, or discharged member, of the forces whose war service required him for a specified time to live in premises which premises were not occupied by him as a home or occupied by a member of the household to which he belonged as a home. This somewhat vaguely expressed negative condition does not appear to mean that a serviceman must have had a home of his own or have formed a member of a household living in a home. All it seems to do is to exclude the case of a serviceman who was not required to leave such a home or live in a place which did not fall within that description.

The specified time covers two cases for a member of the Forces and three for a discharged member of the Forces. A member of the Forces must either be presently required by his war service so to live or must in the past have been so required for twelve months in all. A discharged member of the Forces must have been required by his war service so to live either (1) immediately prior to his discharge or (2) for a total period of twelve months during his war service, or (3) for three months continuously during the six months immediately prior to his discharge.

If the person is not a member of the Forces or a discharged member of the Forces he or she may nevertheless be a protected person if he or she bears to a member or discharged member a relation of either of two kinds. First a parent and secondly a female dependant of such a member or discharged member of the Forces are protected persons, but the expressions parent and female dependant are not used in their natural senses but according to definitions more or less artificial. In the case of a member of the Forces the parent and the female dependant must be dependent upon the member for their support. In the case of a discharged member the parent, like the female dependant, must have been dependent on the serviceman for support. But the dependancy may have been total or partial. The dependancy may be upon a pension payable in consequence of the incapacity or death of a person who has been a member of the Forces. Whether it was intended or not the result of the definitions is that a widow of a soldier of the 1914-1918 war receiving a pension falls under the head: Fenton v. Batten [1] . Again, the dependancy may be upon a person who having been a member of the Defence Force during the war has been discharged, or has ceased to be engaged on war service, for a period not exceeding four years. This period of four years is a result of successive increases made by amendment of the regulations. In addition to actual dependancy a parent or female dependant comes within the class if he or she is the parent or wife of a person who having been a member of the Defence Force engaged on war service in the "present war" has been discharged or has ceased to be engaged on war service if he or she was immediately prior thereto dependent on him for support; but in such a case the person must be receiving from the Commonwealth medical treatment of such a nature as to prevent him wholly or partly from engaging in that occupation. A widow of a member of the Forces who died while engaged on war service is also a "female dependant of a member". To be a discharged member of the Forces for the foregoing purposes a person must have been a member of the Defence Force engaged on war service during the war and he must have been discharged for four years or have ceased for that period to be engaged on war service, or if that period has been exceeded he must be in receipt of a pension from the Commonwealth or of medical treatment of such a nature as to prevent him wholly or partly from engaging in his occupation. The four years is a result of successive amendments. The period began with six months, which was replaced with twelve months (Statutory Rules 1944 No. 176) then with two years (Statutory Rules 1946 No. 86) then three years (Statutory Rules 1947 No. 99) and finally four years (Statutory Rules 1948 No. 55). War service has a very wide application, and used without qualification is not necessarily confined to the war of 1939-1945. But it appears to us that the effect of the provisions contained in regs. 28A and 30 is to deal with the occupation of dwellings, business places and land generally by those serving in the war or lately serving in the war and women or parents presently or recently depending upon such persons or upon pensions arising from the death or incapacity of such persons. The conditions with which these regulations were designed to deal were those arising out of and in the course of the war and during the transition from conditions of armed conflict to those of outward peace a transition in the course of which demobilization took place.

In our opinion the case is like those of Collins v. Hunter, Wagner v. Gall and R. v. Foster [1] , in which an attempt was made to prolong the operation of regulations framed for conditions more directly connected with the war into a period of changed conditions. We considered that the legislative power with respect to defence could not support the attempt to extend the operation of the regulations, framed as they were for such a different situation, for a time beyond any reasonable period of transition required for the winding up of the arrangements for war. We think that the considerations which proved decisive in those cases must govern the validity of the attempt to continue the operation of regs. 28A and 30. In support of the validity of that attempt somewhat extensive claims were made for the possible use of the power to make laws with respect to defence for the purpose of conferring upon former servicemen who have served in war special rights and privileges as against other members of the community. To our minds the present case is not one which concerns the power of the Commonwealth under s. 51 (vi.) of the Constitution to legislate with respect to special privileges which former members of the Navy, Army or Air Force who have served in war should have in the community generally. What we have to decide is the validity, not of a general law upon the subject of the privileges of ex-servicemen operating for an indefinite time in conditions of peace, but of an attempt to prolong the operation of a war emergency regulation. The regulations go far beyond the privileges of ex-servicemen and they do not deal with the matter on the basis of an incidental power in relation to the consequences of war service. The purpose of the regulations is not to confer some recompense or reward for war service or to provide some relief in respect of physical or other disabilities resulting from such service or to offer an incentive or encouragement for willing participation in the future defence of the Commonwealth. None of these matters forms the subjects of regs. 28A and 30 and none of them supplies or ever did supply grounds upon which the validity of the regulations might be sustained. As appears from the references to these two regulations in Blair's Case [1] , the reason why they were conceived to be within the defence power before the life of the community, disrupted by the exigencies of war, could be restored to conditions of peace was that they constituted a measure incidental to the active conduct of the war. But before the commencement of the year 1950 the purposes to which the defence power might validly apply had so contracted that statutory provisions dealing with the occupation of land generally by persons comprised in categories far wider than the class of ex-servicemen could no longer find such a constitutional justification. What provided the constitutional justification for the regulation at the beginning was the expansion of the practical application of the defence power resulting from conditions of war. To prolong a regulation made in and framed for such conditions arising from the war is an attempt to exercise a power incidental to defence after the conditions to which the regulation was incident have passed.

1. (1949) 79 C.L.R. 43. 2. (1946) 73 C.L.R. 213, at pp. 222, 223, 231.

In our opinion the attempt to extend the operation of reg. 28A and reg. 30 by the Defence (Transitional Provisions) Act 1946-1949 is within the reasoning of Collins v. Hunter [2] , and is void. We think that the appeal should be allowed with costs and the order of the Court of Petty Sessions set aside. We think it is desirable to remit the cause to the special magistrate so that he may make the final order for possession fixing a time for the execution of the order.

This is an appeal in proceedings brought by the appellant in a Court of Petty Sessions at Brisbane under the provisions of The Landlord and Tenant Acts 1948 to 1949 Q. claiming possession of certain business premises in that city. The respondent was a weekly tenant of the premises. The appellant purported to determine this tenancy by a notice to quit expiring on 11th August 1950. The ground of the notice to quit was that the premises, not being a dwelling house, were reasonably required for occupation by the lessor, the particulars being that the premises were required for the purpose of the newspaper business carried on by it at Brisbane. The magistrate was satisfied that this ground was established. He was also satisfied that the greater hardship would be on the appellant if an order for possession was refused than on the respondent if an order was granted. The magistrate would have made an order for possession if The Landlord and Tenant Acts 1948 to 1949 Q. had been the only legislation he had to consider. But he found, and his finding is not challenged, that the respondent was a protected person within the meaning of reg. 30 of the National Security (War Service Moratorium) Regulations. Regulation 30 (7) of those regulations provides that an order shall not be made against a protected person unless the court, in addition to being satisfied upon any other ground upon which the court is required to be satisfied, is further satisfied that reasonably suitable alternative accommodation is or has been since the date upon which the notice to quit is given, available for the occupation of the protected person in lieu of the premises in respect of which the order is sought. The magistrate held that no reasonably suitable accommodation had been available to the respondent since the date upon which the notice to quit was given. He therefore declined to make the order and dismissed the information.

The substantial ground on which we are asked to review the order of the magistrate is that the National Security (War Service Moratorium) Regulations were not at any material time in force in the Commonwealth by virtue of the Defence (Transitional Provisions) Act 1949 or otherwise. The material regulations are regs. 28A and 30. The Defence (Transitional Provisions) Act 1949, which was assented to on 28th October 1949, continued the War Service Moratorium Regulations in force from midnight on 31st December 1949 to midnight on 31st December 1950.

Prior to 13th August 1948 regs. 28A and 30 of the War Service Moratorium Regulations had operated as an amendment to the National Security (Landlord and Tenant) Regulations. At or about that date the Landlord and Tenant Regulations were in the process of being repealed in the States by orders made under reg. 7AA of those regulations. They were discontinued altogether by the Defence (Transitional Provisions) Act 1949. On 13th August 1948 Statutory Rules 1948 No. 109 entitled "Amendments to the National Security (War Service Moratorium) Regulations" made under the Defence (Transitional Provisions) Act 1947 came into force. Regulation 2 of these regulations provided that reg. 30 of the National Security (War Service Moratorium) Regulations should be repealed and a new reg. 30 inserted in its stead. This new regulation was the regulation which the Defence (Transitional Provisions) Acts 1948 and 1949 purported to continue in force during 1949 and 1950.

The legislative power of the Commonwealth relied upon to support these Acts is the defence power, s. 51 (vi.) of the Constitution. The relevant Act in the present case is the Defence (Transitional Provisions) Act 1949. The defence power, as this Court has so frequently pointed out, is a power of indefinite ambit. It expands in times of crisis, reaches its greatest magnitude during hostilities, and contracts upon their cessation. No legislation based upon the power can retain its validity after the power has ceased to be wide enough to support it. The Defence (Transitional Provisions) Act 1949 was the fourth of a series of annual Acts passed to continue in force for periods of twelve months such regulations made under the National Security Act with appropriate amendments as the Commonwealth Parliament considered were required to bring about, in the words of the recitals, "the gradual and orderly return to conditions of peace". The constitutional validity of several of these regulations has been discussed in this Court. It is sufficient to refer to three cases heard together, R. v. Foster, Wagner v. Gall, Collins v. Hunter [1] . The Court said [2] that "During the actual course of war in the sense of prosecution and continuance of hostilities defence necessities may reasonably be considered to require extensive and detailed control of the community by the Commonwealth in relation not only to war service and war supplies, but also to industry in general, food, clothing and housing, and financial, economic and social conditions. Apart from the defence power, control of these matters is in most respects outside Commonwealth legislative power and within State legislative power. Such matters come within Federal power because legislation with respect to them is legislation upon "incidents in the exercise of" the power with respect to defence".

1. (1949) 79 C.L.R. 43. 2. (1949) 79 C.L.R., at p. 81.

During the prosecution and continuance of the recent hostilities control of housing was one of the subjects which came within the scope of the defence power. This was because one of the results of diverting the resources of the nation to the prosecution of the war was to restrict building operations and this contributed to create a shortage of homes and business premises. This shortage has continued to the present time. It appears likely to continue into the remote future. Such a continuance cannot be indefinitely attributed to the interruption of building by hostilities. When the Defence (Transitional Provisions) Act 1949 was enacted fighting had ceased more than four years ago. A period of four years should have been sufficient to overcome the shortage due to war conditions. The present shortage may well be largely, if not entirely, attributable to other causes such as industrial unrest, shorter working hours, and a vigorous immigration policy. In Foster's Case [1] it was said that "If it were held that the defence power would justify any legislation at any time which dealt with any problem which had been created or aggravated by the war, then the result would be that the Commonwealth Parliament would have a general power of making laws for the peace, order and good government of Australia with respect to almost every subject".

It is clear that by the end of 1949 circumstances which gave the Commonwealth Parliament general control of the law of landlord and tenant had ceased to exist. Indeed the Commonwealth Parliament had tacitly admitted this when it caused the repeal of the Landlord and Tenant Regulations in the States in the second half of 1948 and did not seek to re-enact them by the Defence (Transitional Provisions) Act 1949.

Regulation 30 of the War Service Moratorium Regulations remained as a Federal excrescence upon a legislative subject which had otherwise reverted to the States. It benefits all protected persons who are or were for the period mentioned in the four paragraphs of sub-reg. 1 required, by reason of their war service, to live in premises other than premises occupied by them, or by a member of the household to which they belonged, as a home. It operates in favour of such persons not only in respect of homes but also in respect of business premises and even vacant land of which they are lessees. Protected persons and members of the Forces are defined by reg. 28A. A protected person means a member of the Forces, discharged member of the Forces, female dependant of a member, female dependant of a discharged member, parent of a member or parent of a discharged member. "Member of the Forces" has a wide meaning. It includes not only members of the defence Forces of the Commonwealth, but any person who is on active service with the Naval, Military or Air Forces of the United Kingdom or any part of the King's Dominions, or of any foreign power allied or associated with His Majesty in any war in which His Majesty is engaged, or maintained by any foreign authority recognized by His Majesty as competent to maintain Naval, Military or Air Forces for service in association with His Majesty's Forces. Discharged members of the Forces fall into two broad categories (1) those who have been discharged from the Defence Force or have ceased to be engaged on war service for a period not exceeding four years and (2) those who have been discharged from the Defence Force or have ceased to be engaged on war service for a period exceeding four years who are receiving a pension from the Commonwealth or who are receiving from the Commonwealth medical treatment of such a nature as to prevent them either wholly or partly from engaging in their occupation. Protected persons therefore, as Mr. Phillips said, may be divided into four broad classes (1) present members of the Forces; (2) discharged members without any disability; (3) discharged members under disability; (4) dependants of these three classes. These classes may be severable: Real Estate Institute of New South Wales v. Blair [1] . The validity of reg. 30 in relation to existing and discharged members of the Forces may well rest on firmer ground than it does in relation to the dependants of such persons. We are here concerned with a discharged member of the Defence Force of the Commonwealth, who is partially disabled and in receipt of a pension from the Commonwealth. If the regulations could be valid in relation to any class they should be valid in relation to the class to which the respondent belongs.

One factor in favour of the validity of the re-enactment of the regulations by the Defence (Transitional Provisions) Act 1949 is the fact that the regulations are kept in force by annual Acts so that the necessity for their continuance is reviewed annually by the Commonwealth Parliament. In the case of an elastic power, like the defence power, the Commonwealth Parliament must be allowed a wide latitude of legislative discretion. But to quote again from R. v. Foster [2] "The Court must see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States and unless it can do so it is the duty of the Court to pronounce the enactment beyond the legislative power". A broad and generous view must be taken of the legislative content of the defence power with respect to the re-establishment and rehabilitation of discharged members of the Forces. But the responsibility of discharging this obligation rests on the Commonwealth itself and not on particular citizens who happen to possess property which is required for such re-establishment and rehabilitation. There is no real distinction in principle between giving discharged members of the Forces particular privileges with respect to property rented from private persons at the expense of such persons and giving them special privileges with respect to any other property owned by private persons at the expense of those persons. As a purported exercise of the defence power there is little to choose in the degree of interference with the rights of property owners between the privileges conferred upon protected persons by reg. 30 and those conferred upon them by regs. 30A to 30AF of the War Service Moratorium Regulations which were held in Collins v. Hunter [1] to have been invalidly continued by the Defence (Transitional Provisions) Act 1948. It was said [2] of the latter regulations that "To treat the provision as one constitutionally capable of indefinite continuance is to mistake the difficulties which servicemen share with other members of the community in a prolonged housing shortage for the more immediate and urgent necessities which are set up by demobilization and discharge at the end of hostilities". Those regulations gave protected persons a right to apply to a magistrate for possession of dwelling houses which were unoccupied or about to become unoccupied. They were confined to dwelling houses and they at least enabled the owner to resist the claim of a protected person on the ground of hardship to himself or some other person. Regulation 30 applies not only to homes but also to offices and vacant land. In respect of offices and vacant land, a protected person is given special rights not because the requirements of war service compelled him to vacate an office or vacant land but simply because war service required him to live in premises other than premises occupied by him or a member of the household to which he belonged as a home. It does not give him special rights over the home he then occupied, supposing he had to vacate it, but over any premises including premises subsequently let to him as a member of the public.

1. (1949) 79 C.L.R., at p. 84. 2. (1949) 79 C.L.R. 43. 3. (1949) 79 C.L.R., at p. 97.

The regulation leaves altogether out of account the hardship the owner might suffer because he was unable to recover possession of his property. True, the protected person must not allow his rent to fall into arrears for more than fifty-six days, and must observe the terms and conditions of his tenancy and take reasonable care of the premises but it matters not that the premises being a dwelling house are reasonably required by the lessor for his own occupation or not being a dwelling house are reasonably required for occupation by the lessor in his trade, profession, calling or occupation. Regulation 30 prohibits an order for the recovery of the possession of the premises unless the Court is satisfied that reasonably suitable alternative accommodation is available for the occupation of the protected person. The regulation provides that accommodation shall not be deemed to be reasonably suitable unless (a) the rent of the alternative accommodation does not exceed the rent of the premises at present occupied; (b) the floor area of the alternative accommodation is not less than the floor area of the premises at present occupied; (c) in the case of a dwelling house - the alternative accommodation is not less congenial than the premises at present occupied; and (d) the conditions generally appertaining to the alternative accommodation are not inferior to the conditions appertaining to the premises at present occupied. It is not a consideration that the protected person may be in better financial circumstances than the owner of the premises and well able to pay a higher rent for other suitable accommodation. The magistrate has no discretion whatever. The owner of property who has a protected person for a tenant is placed in a peculiar and invidious position in comparison with the rest of the community. He is deprived of important proprietary rights of which he can only be deprived in peace time by State law. The Commonwealth Parliament is not powerless in the matter. It can acquire land and build houses or business premises for members and discharged members of the Forces or can acquire existing premises on just terms under s. 51 (xxxi.) of the Constitution. But it cannot reasonably be said to be an incident of the defence power four years and more after the conclusion of hostilities for the Commonwealth to prolong a war measure dealing with a subject otherwise within the exclusive province of the States.

For these reasons I would allow the appeal, set aside the order of the magistrate, and make an order for possession.