R v Foster; Ex parte Rural Bank of New South Wales; Wagner v Gall; Collins v Hunter

R v Foster; Ex parte Rural Bank of New South Wales; Wagner v Gall; Collins v Hunter - [1949] HCA 16 - HCA 1949 case summary — Zoe

[23]

The solution of the difficulties thus presented cannot be achieved by the application of any mechanical hard and fast rule. It is not possible to do more than lay down general principles and to apply them to the circumstances, varying in time and place, which are to be found in a modern community. In stating and in applying the principles we do not forget that in contemplation of law a state of war still exists, although armed conflict has long since been at an end. But this Court has never subscribed to the view that the continued existence of a formal state of war is enough in itself, after the enemy has surrendered, to bring or retain within the legislative power over defence the same wide field of civil regulation and control as fell within it while the country was engaged in a conflict with powerful enemies. The Court has not, of course, put out of consideration the fact that a state of peace has not yet been brought about by treaty or otherwise or the fact that enemy territory is still in Allied occupation. But we have treated these as but circumstances to be considered, that is, as factors in a total situation governing the practical application of the legislative power with respect to defence. They are, however, factors which can have little bearing upon the question whether any of the three regulations now challenged still remain in valid operation. It is a question which must depend upon that aspect of the defence power which authorizes legislation on matters incidental to the termination of hostilities, to the dis-establishment and disposal of arrangements set up in the course of prosecuting the war and to the restoration of the country to conditions of peace. In winding up the arrangements made for war and restoring a community organized for war to a state in which it can resume peaceful courses the legislature may continue for a space this or that war-time control. For it may be incidental to defence to continue the control and regulation of a particular subject matter for a time after the cessation of hostilities and also to maintain such control while legislative provision is being made for the necessary re-adjustment. The sudden removal of all controls is not demanded by the collapse of enemy resistance. Given regulations or controls may no longer find a justification in the considerations which the active prosecution of the war supplied. Yet the very fact that the controls or regulations have been established may create a situation which must be maintained for a reasonable time while some other legislative provision is made. But 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.

[30]

The regulations therefore provide that before an employer can employ females upon any of the work specified in reg. 6 (1) he must obtain a decision from the court that females may be so employed. The work specified is plainly work in respect of which difficulties in obtaining the necessary labour existed or were expected by reason of the existence of war conditions. If the regulations are still validly in operation they produce the result that no employer may in the year 1949 employ any women upon, inter alia, work which immediately prior to the outbreak of the war in September 1939 was not performed in Australia by any person. Accordingly, if a completely new industry is now established in Australia women cannot be employed in it unless a decision that they may be so employed is given by the court. They also produce the result that in 1949 no employer without having obtained such a decision may employ or continue to employ women upon work which was usually performed by males or upon work which within his establishment was performed by males at any time since 3rd September 1939. At a time when the conduct of war was deemed by Parliament and the Government to require the distribution and allocation of available labour so as to obtain the maximum of productive result for the manufacture of war supplies and essential civilian requirements, the relation of such provisions to defence is not difficult to understand. But all the reasons which provided at the time a foundation for this exercise of the defence power have now disappeared. What new factors or what situation came into existence which would form a ground justifying under the defence power legislation continuing the operation of the Women's Employment Regulations? It is open to much doubt whether the legislature has expressed sufficiently an actual intention to continue them in operation after 31st December 1946. By the combined operation of s. 5 of the Women's Employment Act 1942, s. 19 of the National Security Act 1939-1946 that is the s. 19 substituted by Act No. 15 of 1946, and s. 10A of the Acts Interpretation Act 1901-1948, we think that it is clear that the Women's Employment Regulations must have come to an end on 31st December 1946, unless some fresh provision were enacted expressing an intention to continue them further. Such a provision is found by those supporting the present operation of the regulations in the amendment made in s. 5 of the Women's Employment Act by s. 10 (1) and the Third Schedule of the Defence (Transitional Provisions) Act 1946-1948. The amendment so made consisted in the omission in s. 5 of the Women's Employment Act of the words " National Security Act 1939-1940 " and the insertion of the words " Defence (Transitional Provisions) Act 1946." It is unnecessary to consider whether this amendment was adequate for the purpose claimed for it. Let it be supposed that it was and that the continuance from year to year since the end of 1946 of the Women's Employment Regulations rests upon the Defence (Transitional Provisions) Acts of 1946, 1947 and 1948. The order or determination in this case was made on 14th December 1948 and the authority to make it could only be derived from the effect of the Defence (Transitional Provisions) Act 1947 in extending the operation of the Women's Employment Regulations. We cannot see how this could be validly done under the defence power. The regulations are not addressed to any problem of post-war re-adjustment. The amendment made by the Defence (Transitional Provisions) Act 1947 in the date for the termination of the Defence (Transitional Provisions) Act 1946 would operate to continue the Women's Employment Regulations into the third year from the time of the cessation of hostilities. It would so operate without any legislative attempt to deal with the situation which they created. The extension of the period of the regulations means nothing but a postponement of the time when a statutory regulation no longer appropriate to existing circumstances terminates. It has no bearing upon the winding up, disposal or re-adjustment of the system of regulation or control established for war purposes or upon the situation arising therefrom except that it tends to perpetuate the latter and postpone indefinitely the former.

[52]

When in May and July 1946 the provisions now represented by regs. 30A to 30AF were reframed in their present form the period over which, as the law then stood, they were to operate was a short one. The National Security Act 1946 had been passed on 18th April 1946, though the date of its commencement was 16th May 1946. The new s. 19 which it inserted in the National Security Act 1939-1943, under which the regulations were made, provided that all regulations made thereunder should cease to have effect at midnight on 31st December 1946. The period from his discharge limited in the definition of discharged servicemen was two years, not four. In Real Estate Institute of New South Wales v. Blair [1] part of the argument in support of the validity of the regulations was that they continued in force until 31st December 1946 and that a tenancy could be created thereunder until that date. Hostilities had not ceased until 2nd September 1945. It was in these circumstances that the Court decided that regs. 30A to 30AF were not ultra vires. It was considered that they fell within that aspect of the defence power which enables the Federal legislature to provide for the re-establishment in civil life of persons who have served with the defence forces upon discharge (per Latham C.J. [2] ). Rich J. said: - "I do not think that it is beyond the scope of the defence power to provide reasonable facilities for enabling men of the fighting services to re-establish themselves in civil life during a reasonable time after they have been discharged; and, in existing circumstances, I do not think that the temporary continuance of the provisions which have been challenged, in the form in which they now stand, is, in its application to discharged servicemen, outside the scope of the defence power." [3] . Williams J. said: - "During hostilities legislation under the defence power requiring householders to billet members of the forces, and probably also members of their families, could be valid. And during the period of demobilization legislation to the same effect might be valid. By analogy to billeting, legislation passed in war-time requiring citizens to allow members of the forces and their families to reside in unoccupied houses could also be valid. We are now in a period when the defence power is contracting. In my opinion the operation of the defence power in peace-time could not be wide enough to authorize legislation, otherwise than under s. 51 (xxxi.), to make dwelling houses owned by individuals available as dwelling houses for discharged members of the forces. But the present regulations can, I think, be justified as an exercise of the defence power during hostilities and the immediate aftermath. They are of temporary duration and any statutory rights they create would not continue after their expiration." [1] . Starke J. and Dixon J. confined themselves to the case of discharged servicemen and treated the regulations as within the defence power because "they secure in certain cases dwelling houses for members and discharged members of the armed Forces required by reason of war to live in premises other than premises occupied by them or by members of their household as a home": per Starke J. [2] . Dixon J. pointed out that the direction of the defence power had been changed: its direction was no longer towards sustaining the conflict but towards measures calculated to liquidate the organization for war and restore the conditions of peace [3] .

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)