Wishart v Fraser [1941] HCA 8

High Court of Australia|1941-07-01

WISHART . : i : ; : : . APPLICANT; - DEFENDANT AND APPELLANT, AND FRASER AND OTHERS . 5 - ; . ResponpENtTs.

ON APPEAL FROM A COURT OF PETTY SESSIONS OF NEW SOUTH WALES, AND ON APPEAL FROM A COURT OF QUARTER SESSIONS OF NEW SOUTH WALES.

H.C. or A. Constitutional Law - Delegation of legislative powers - Act relating to national security

Meticrnan and 73 (ii) Judiciary Act 1903-1940 (No. 6 of 1903 - No. 50 of 1940), sec. 39 (2) (8), (c) - Rules of the High Court, Part IT., sec. tv., r. 1 - Justices Act 1902 (N.S.W). (No, 27 of 1902), secs. 112, 122.

Sec. 5 of the National Security Act 1939-1940 is not an illegal delegation to the Executive of legislative power, but is a valid exercise of the defence power.

An order of a Court of Quarter Sessions of New South Wales confirming on

appeal a conviction by a magistrate exercising Federal jurisdiction is, while it stands, a bar to any appeal from the magistrate's decision direct to the High Court.

AppgaL, by way of order nisi for prohibition, from a Court of Petty - Sessions of New South Wales, and Appiication for special leave to appeal from a Court of Quarter Sessions of New South Wales.

John Royston Wishart, a solicitor, was charged before a Court of Petty Sessions at Sydney on the information of Jack Lyall Fraser, a detective of the police force of the State of New

e, with an offence under sec. 10 of the National Security

made pursuant to that Act, for that on 25th June 1940 ey he did, with intent to endeavour to cause disaffection g members of the Second Australian Imperial Forces engaged service of the King, have in his possession a document h was of such a nature that the dissemination of copies among such members would constitute an endeavour to disaffection among those members, contrary to the Act.

mation, was addressed '' To the soldiers of the Second A.1.F.," was headed " Military punishment and the rank and file." It ined a statement, which was alleged to have appeared in a yper, of the treatment said to have been meted out to some of the A.I.F. "who were doing time for minor offences, AW.L.," and the comment thereon was that "all this is

e and which the rank and file will have to put up with," "the solution of all your problems lies in the setting up oldiers' committees." '"* Common causes of dispute " were said : - (1) "Canteen funds and comforts funds": it was stated that "in the last war maladministration and lack of proper super- jon led to the diversion of great quantities of supplies and money

punishment": these, it was stated, "are handed out ly without any effective right of appeal. Representative s would act as a check on irresponsible officers and at the @ time protect the soldier." (3) "Leave": there was, it was "already a sharp difference developing between the amount allowed to officers and the rank and file." (4) "Care of s": it was stated that "in the last war dependants' ; were delayed and cut off on trivial and arbitrary excuses." Pensions": it was alleged that "from the start of the war ve nt has stated that it is going to avoid piling up a large and in many ways it has shown a desire to run the war on the ip. . . . Economy and the war needs of the soldiers will be come into conflict." At the end of the document in bold ype was an exhortation to " Elect soldiers' committees." evidence showed that on 25th June 1940, upon the police ting Wishart's office and his home, they found about fourteen 'of the document referred to in the information, and also of another document entitled "This Imperialist War," and

1 Wales attached to the Commonwealth Military Police H- © oF A.

H.C. or A. a considerable quantity of communist literature. Wishart, who

was the joint author of the subject document, said he believed he had burnt all the copies of the document, but he admitted between the date of its composition in January 1940 and the e of February 1940 he used the document with intent to endeay to cause disaffection amongst members of the Second Austr Imperial Forces. About the end of March 1940 the Revolution Workers' League, an organization consisting of a few persons of which Wishart was the secretary, became affiliated with Communist League, and Wishart became a member of the execut of that body. He said that the subject document was not used the affiliation, because it had not received the approval of executive, but he admitted that in the middle of 1940 it was still principle of the doctrines of the Fourth International that commun nuclei should be formed in every military unit and he consi that this principle should be acted upon. He said that he rej the army as an instrument of capitalistic oppression, that he co sidered that soldiers' committees should be organized which would take over control of the army in due course, and that he would have liked the general situation to have advanced to such a stage on 25th June 1940 that the right time for doing this would have arrived, although it had not in fact done so. i: In the margin of the information appeared the following, which -

except that the italicized " W. M. Hughes" appeared written it ink by hand - was typewritten : - 'I consent to the institution this prosecution in respect of the contravention herein alleged o regulation 41 (1) (6) of the National Security (General) Regulations, and I also consent to the prosecution summarily of the offence herein alleged. W. M. Hughes, Attorney-General. 6-9-1940." The magistrate, on 16th January 1941, convicted Wishart and sentenced him to imprisonment with hard labour for a term of six months. . Upon being so convicted Wishart lodged an appeal under sec. 122 of the Justices Act 1902 (N.S.W.) to the Court of Quarter Sessions _ against his conviction and sentence. On 6th February 1941 an application made by Wishart, within the time allowed by sec. 11 of the Justices Act 1902 (N.S.W.), to the High Court for a rule nisi for a statutory prohibition under that Act directed to the Right Honourable William Morris Hughes, Attorney-General for the

mwealth, the informant, Jack Lyall Fraser, and the magis- 'Frederick Donald Hercules Sutherland, was stood over by ams J. until the appeal to the Court of Quarter Sessions had sed of. That appeal was heard before Judge Stacy, n of Quarter Sessions, on 18th, 19th, 20th and 21st March 'The judge rejected part of the documentary evidence

d by the informant which had been admitted by the e. The judge, on 21st March, dismissed the appeal and the conviction and sentence of imprisonment with hard r for a term of six months. On the ground that there was y question of law which ought to be so submitted, he refused to

the discretionary power conferred upon him by sec. 5p of inal Appeal Act 1912 (N.S.W.) to submit a question or of law to the Court of Criminal Appeal for determination. Wishart renewing, in the High Court, on 28th March, his on for a rule nisi for a writ of prohibition, Williams J. in order returnable before the Full Court on 2nd April, and ication duly came on for hearing.

li K.C. (with him Snelling), for the respondents other than ristrate, on a preliminary point. The applicant appealed ler the Justices Act 1902 (N.S.W.) to the Court of Quarter Sessions inst his conviction. That court heard the matter de novo, on | which was different from the evidence given before the istrate, confirmed the conviction and ordered that the applicant oned for six months. The Chairman of Quarter Sessions party to the proceedings before this court, nor is his order 'this court. In the circumstances the magistrate's order, is the only order before this court, is now defunct, and, there- re is nothing for this court to prohibit. The position which arisen in this case was not dealt with in R. v. Poole; Ex parte

for the applicant. The procedure usually followed in cases an appeal is made to the Court of Quarter Sessions, and an peal on the law is made to the Supreme Court, is that the appeal to urt of Quarter Sessions is held over pending the determination by the Supreme Court, as in Ex parte Giles (2). That pro- was followed in this court until the decision in R. v. Poole ; Henry (1). If that decision be followed serious consequences

(1) (1938) 61 C.L.R. 1. (2) (1912) 29 W.N. (N.S.W.) 83.

might flow in cases where imprisonment is possible. An aggrieved person is entitled to pursue both remedies (R. v. Skinner (1) ). The Chairman of Quarter Sessions dismissed the appeal and confirmed the. order of the magistrate ; therefore the applicant is being imprisoned under the order of the magistrate. In the circumstances, if the magistrate's order were set aside, there would not be any warrant for holding the applicant as a prisoner. If necessary, the further hearing of the matter should be adjourned with a view to the applicant making an application under sec. 73 (ii) of the Constitution and sec. 39 (2) (c) of the Judiciary Act 1903-1940 for special leave to appeal from the order of the Court of Quarter Sessions.

Ricu A.C.J. This matter will be adjourned until Friday next, and that day will be fixed for the hearing of the application for special leave to appeal.

Wishart applied by way of notice of motion to the High Court for special leave to appeal from the order of the Court of Quarter Sessions dismissing his appeal from his conviction and sentence.

Farrer, for the applicant. The National Security Act 1939-1940 is an invalid exercise of power by the Federal Parliament, inasmuch as by sec. 5 of that Act the power given to the Parliament to legislate for the peace, order and good government of the Commonwealth in respect of the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth has been arrogated to the Executive. It is not competent for the Federal Parliament to hand over to the Executive the whole of the power to make a law, whether by regulation or otherwise, with respect to the defence of the Commonwealth. Parliament is unable to divest itself com- pletely in favour of a subordinate body, of law-making power in respect of any particular function with which it has been itself endowed (In re Initiative and Referendum Act (2)). It is important to remember that it is not for this court to inquire into the nature of a regulation; once a power has been handed over to the Executive, it can make such regulation as it thinks fit (The Zamora (3); Farey v. Burvett (4)). This case is vastly different from the case of Roche v. Kronheimer (5). The generality of see. 5 is not restricted by the particular provisions of that section (Huddart Parker Ltd. v. The Commonwealth (6) ) - See also Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v.

(2) (1919) A.C. 935, at p. 945. (5) (1921) 29 C.L.R. 329. (8) (1916) 2 A.C. 7, at p. (6) (1931) 44 C.L.R. 492.

(1). The point was not raised in Pankhurst v. Kiernan (2) rin Ferrando v. Pearce (3). The only reason that can be advanced jing sec. 5 as a valid exercise of power is that, in spite 'the decision in Huddart Parker Ltd. v. The Commonwealth the words "'and in particular" in fact indicate the subject upon which the Executive may make regulations. Reg. 41 not fall within any one of those specified subject matters. The y-General's consent which is purported to have been given \is case is not in proper form. In Holland v. Jones (5) there vas authority for the consent as given, but reg. 41 requires a type

consent other than a written consent. The charges against the are not established by the evidence. It was not proved

means of that document. On the contrary, the evidence shows hat the applicant's possession of the document on the date charged an accidental happening. As compared with the numerical h of the Second Australian Imperial Forces the number of es of the document said to have been found in the possession of applicant is infinitesimal : See R. v. McMahon (6). Mere possession the document is not sufficient to prove the charge.

ell K.C. (with him Snelling), for the respondents, was called m to deal with the facts. This court does not grant special e to appeal in criminal cases on mere matters of fact. The Chairman of Quarter Sessions properly drew an inference of guilt n the part of the applicant from the facts in evidence before him. facts that the applicant was the author or part author of the ment ; that, on his own admission, he had used it until March ; that, until it had just previously been so declared, he had an active member of an organization which recently had declared illegal; that, on his own admission, his ideas as to social structure had not changed; and that he had retained on of copies of the document and of other " revolu- " documents, were sufficient to justify the inference drawn by the Chairman of Quarter Sessions. The applicant's state of d with reference to the document until March is strong prima- evidence that that was a continuous state of mind which d until and on the date charged (See Attorney-General v. 1931) 46 CLR. 73. (5) (1917) 23 C.L.R. 149. 1917) 24 CLLR. 120. (6) (1894) 15 LR. (N.S.W.) (L.) 131;

(1918) 25 CLLR. 241 10 W.N. (N.S.W.) 204. 1931) 44 CLR.

H.C. or A. Bradlaugh (1) ); this, coupled with the fact that he retained copies of

the document concerned and other documents, is additional evidence, The Chairman of Quarter Sessions was entitled to disregard or - disbelieve, in whole or in part, evidence given by and on behalf of the applicant, and, also, to draw inferences adverse to the applicant from admissions made by him.

Farrer, in reply. The evidence established only that the applicant has a very definite and very confirmed political opinion ; it does not prove the charge brought against him. There was not any evidence - that on the date charged he had any intention to disaffect members - of the Second Australian Imperial Forces by means of the docu- - ment, or otherwise ; nor is there any evidence that the document was capable of being used in an endeavour to cause such disaffection.

The following written judgments were delivered : - : Ricu A.C.J. In this matter the applicant was on 16th September _ 1940 charged with an offence against reg. 41 of the National Security _ (General) Regulations 1939-1940 made pursuant to the provisions of the National Security Act 1939-1940. The hearing of this charge, which lasted some days, was concluded on 16th January 1941, when he was convicted of the offence that he did on 25th June 1940 at _ Sydney with intent to endeavour to cause disaffection among certain _ persons, namely, members of the Second Australian Imperial Forces, _ engaged in the service of the King, have in his possession a certain _ ir

document, which said document was of such a nature that the dis- semination of copies thereof among such persons would constitute an endeavour to cause disaffection among such persons, contrary to the Act in such case made and provided. Against this conviction _ the applicant appealed to the Court of Quarter Sessions, which on _ 21st March 1941 confirmed the conviction. The applicant on 28th - March 1941 applied to Williams J. and obtained an order nisi for prohibition to restrain the respondents from proceeding further in respect of the conviction.

On the return of the order nisi before this court it was suggested that while the order of the Court of Quarter Sessions confirming the conviction stood it would bar any right to appeal direct from the magistrate's order and that the applicant should apply for special leave to appeal from the order of the Court of Quarter Sessions. That is admittedly a valid order made by the Court of Quarter

I may state that the applicant in that case asked the ¢ of Quarter Sessions for leave to withdraw his appeal, the leave ra nted, and the appeal was withdrawn. But, whether concurrent umulative remedies are permissible under the Justices Act .S.W.) or not, that Act cannot govern this court in hearing from courts exercising Federal jurisdiction. As to special leave the grounds alleged are four in number, viz., sec. 5 of the National Security Act 1939-1940 is invalid, 1 of the regulations made under the Act is ultra vires the the consent of the Attorney-General to prosecute was not |, (d) there is no evidence of the charge laid. In support the first ground it was contended that sec. 5 of the Act purported gate the whole power to make laws with respect to the naval y defence of the Commonwealth and was therefore A similar contention has been raised in this court and has sustained. The decision in Victorian Stevedoring and General q Co. Pty. Ltd. and Meakes v. Dignan (2) and the former ions there referred to finally dispose of this contention, and it vs that sec. 5 is a valid exercise of the power. (b) If the Act is I hold it to be, valid, the second objection fails. (c) We are take judicial notice of the Attorney-General's signature, is written under the consent indorsed on the information. character of the document speaks for itself. But it was d that the intention to disseminate disaffection among which appears on the face of the document had ceased to the end of March and that 25th June 1940, the date laid in tion, is the material date and of the essence of the offence. adjournment I have carefully reread the evidence before t of Quarter Sessions. It is proved that the applicant was ithor of the document and joined in duplicating copies of were found both in his office and in his bedroom in another on 25th June, and on this date "a close associate and cer of his" had other copies. Copies had been distributed ly rate before the end of March. I have no doubt in holding t the authorship of the document, its possession and retention of ion up to 25th June 1940, its distribution, and the other 61 CLR. 1. (2) (1931) 46 CLR. 73.

OF AUSTRALIA. 477 a8 exercising Federal jurisdiction. If this court were to deal H- C. or A. the conviction by the magistrate and quash it, the extraordinary aes follow of two orders in existence at the same time - the aiicae his court and that of Quarter Sessions. The situation in R. v. a Ex parte Henry (1) was different. There the court prevented "45™*

clash of orders by refusing to hear an appeal. Asa matter Rien A.c..

HIGH COURT (194i. relevant and admissible evidence before the learned judge of Quarter Sessions fully justified him in inferring that the applicant's intention of himself using the document for the unlawful purpose or of allowing others to use it existed at the end of March and continued up to. 25th June 1940. I should add that the date laid in the information is not of the essence of the offence (R. v. James (1) ; B. v. Dossi (2) ),

In my opinion an appeal from the order of the Court of Quarter Sessions would fail and special leave should be refused. It follows from this refusal that the rule nisi should be discharged.

Srarke J. "It seems to me that it is burning daylight," to use an expression of Halsbury L.C., to state elaborate reasons for rejecting this appeal.

The appellant was charged with an offence under reg. 41 of the National Security (General) Regulations 1939-1940 made pursuant to the National Security Act 1939-1940 in that he, on 25th June 1940, with intent to endeavour to cause disaffection among Australian soldiers, had in his possession a certain document. A stipendiary magistrate, sitting as a Court of Petty Sessions in the exercise of Federal jurisdiction, convicted the appellant of the offence. He appealed to the Court of Quarter Sessions, as he was entitled to do under the law: See Judiciary Act 1903-1940, sec. 39 (2). But that court affirmed the conviction. Next he brought an appeal to this court by means of a rule nisi for statutory prohibition (Grayndler v. Cunich (3) ) against his conviction by the stipendiary magistrate. If the Court of Quarter Sessions had reversed the decision. of the stipendiary magistrate, its judgment would have held "the field to the exclusion" of the conviction by the stipen- diary magistrate. And when Quarter Sessions affirmed the convie- tion. its judgment was equally conclusive, for it operated as a judicial determination by a competent and higher authority that the conviction was right. An application was made to the Chairman of Quarter Sessions to state a case pursuant to the provisions of the Criminal Appeal Act 1912 (N.S.W.), sec. 58, but he refused the application. And no appeal has been brought to this. court by way of case stated or otherwise against the judgment of Quarter Sessions. That judgment therefore holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary.

The appellant, however, when it was plain that his rule nisi must. be discharged, moved for special leave to appeal from the judgment.

(1) (1923) 17 Cr, App. R. 116. (2) (1918) 87 L.J. K.B. 1024. (3) (1939) 62 C.L.R. 573, at p. 589.

RJ OF AUSTRALIA. Sessions (Judiciary Act 1903-1940, sec. 39) upon the

'That the National Security Act 1939-1940 and the regulations de thereunder were invalid because the Act delegated legislative to the Governor-General, contrary to the provisions of the it this argument has been considered and rejected in many by this court : See Victorian Stevedoring and General Contracting Pty. Ltd. and Meakes v. Dignan (1) and the cases there collected. 'That it was not proved that the prosecution of the appellant as instituted with the consent of the Attorney-General (reg. 41 (2) ). a consent signed by the Attorney-General appears upon the of the information. Such an objection is hardly one for special to appeal, but it is disposed of by the decision of this court in vy. Jones (2).

'That there was no evidence that the appellant committed the e charged against him, or at all events that the conviction was evidence and the weight of evidence.

leave to appeal should not be granted upon such a ground : ves no important question of law nor any matter of public e: it is an objection peculiar to the particular case. The however, was argued before the court at some length, d the discussion made it abundantly clear that there was ample ce to support the conviction.

rule nisi for statutory prohibition should be discharged and leave to appeal from the decision of Quarter Sessions should

J. For the purpose of relieving Wishart of a summary and a sentence of imprisonment, two proceedings have wen brought before us. Under sec. 10 of the National Security Act 9-1940 and reg. 41 (1) (b) of the National Security (General) ulations he was convicted before a police magistrate exercising ral jurisdiction upon a charge that he did with intent to endeay- to cause disaffection among certain persons, namely, members Second Australian Imperial Forces, engaged in the service of have in his possession a document of such a nature that » dissemination of copies among such persons would constitute endeavour to cause such disaffection. He was sentenced to onment for a term of six months. art appealed against the conviction to a Court of Quarter But that court confirmed the conviction. Wishart then

H. C. or A. took steps to invoke the appellate jurisdiction of this court. Under

sec. 39 (2) (b) of the Judiciary Act 1903-1940 an appeal lies of right - to this court from the decision of a court of a State exercising Federal jurisdiction, wherever an appeal lies, under State law, from its decision to the Supreme Court. An appeal by way of statutory - prohibition lay from the magistrate to the Supreme Court, but no such appeal lay from the Court of Quarter Sessions. Wishart, in the first instance, ignored the confirmation by that court of his conviction and attempted to appeal from the conviction as of right, - When it was objected that the order of the Court of Quarter Sessions confirming the conviction stood in the way of a direct appeal from the magistrate, he then applied under sec. 73 (ii) of the Constitution and sec. 39 (2) (c) of the Judiciary Act for special leave to appeal from the order of the Court of Quarter Sessions.

The two proceedings now before us for determination are the appeal from the magistrate and the application for special leave to appeal from the Court of Quarter Sessions. The first question to be decided is whether an appeal as of right from the decision of the magistrate exercising Federal jurisdiction can be maintained after it has been confirmed by the Court of Quarter Sessions, at all events while the confirmation stands.

The appeal to this court is given by sec. 73 (ii) of the Constitution and not by sec. 39 (2) (b) and (c) of the Judiciary Act, the operation of which is to distinguish between appeals as of right and appeals by special leave. It isa full appeal on law and fact of the same nature - as other appeals to this court in its appellate jurisdiction. When sec. 39 (2) (b) refers to State law, it does so for the purpose only of saying from what decisions given by State courts exercising Federal jurisdiction an appeal shall lie as of right. It does not draw in the law of the State for the purpose of defining the nature or scope of the remedy or the jurisdiction of this court. In the same way, when sec. IV., rule 1, of the Rules of Court provides that appeals from inferior courts exercising Federal jurisdiction shall be brought in the same manner and within the same times and subject to the same conditions as are prescribed by the law of the State for bringing appeals to the Supreme Court in like matters, State law is invoked only for the purpose of supplying a procedure for appealing. It does not affect the nature of the appeal: See Bell v. Stewart (1); Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (2); Dunlop Perdriau Rubber Co. Ltd. v. Federated Rubber Workers? Union of Australia (3); R. v. Hush; Ex parte Devanny (4); R. v-

(1) (1920) 28 C.L.R. 419, at p. 424, (3) (1931) 46 C.L.R. 329, at p. 338.

(2) (1931) 46 C.LLR., at pp. 85, 87, (4) (1932) 48 C.L.R. 487, at pp. 506, 107. 507.

1 Sull (1); Grayndler v. Cunich (2). In the present instance law of the State relied upon as showing that a right of appeal Court would exist and as providing the procedure 112 et seq. of the Justices Act 1902 (N.S.W.). It is said a matter within State jurisdiction the Supreme Court would itself as bound to hear and determine an appeal by statutory against a conviction by a magistrate notwithstanding the meantime an unsuccessful appeal had been taken to a of Quarter Sessions and an order confirming the conviction made by that court. It is true that for a very long period he Supreme Court of New South Wales it has been the accepted w that an appeal against a conviction to Quarter Sessions under hat is now sec. 122 of the Justices Act 1902 (N.S.W.) might be concurrently with the remedy by way of a statutory directed to the magistrate. " The remedy by prohibition

mt and cumulative" is the short ground upon which an on to the coexistence of the two remedies was overruled in Marz (3) by Stephen O.J., Hargrave and Faucett JJ.: Cp. Wedlock (4) ; Ex parte King (5). Further, it has been decided at by instituting an appeal to Quarter Sessions against his convic- on a defendant does not preclude himself from obtaining a statutory n from the Supreme Court while his appeal to Quarter ons is pending (Mx parte Giles (6) ). The reasons given for

: the appeal to Quarter Sessions entitling the defendant to investigation of the facts upon oral evidence and a recon- of the penalty, while statutory prohibition means only tion of the propriety of the decision of the magistrate. ingly it is the practice of the Supreme Court to decide a rule nisi for a statutory prohibition notwithstanding that an from the conviction is pending in a Court of Quarter Sessions nd for that court to hear an appeal notwithstanding that the Court has discharged the rule nisi for statutory prohibition. es not appear to be any reported decision upon the question the converse course may be followed and a statutory ition obtained in spite of the fact that a Court of Quarter has in the meantime reheard the charge and confirmed the m. To hold that the Justices Act 1902 authorizes such a

ie 62 C.LR., at pp. 583, 591, . (5) (1913) 30 W.N, (N.S.W.) 70. (6) (1912) 29 W.N. (N.S.W.) 83.

(3) (1868) 7 S.C.R. (N.S.W.) 344. (4) (1899) 20 L.R. (N.S.W.) (L.) 353,

Island Stevedoring and Lighterage Co. Ltd. ; Ex parte Halliday ¥. ©. oF &.

HIGH COURT (1941, course appears to be an extension of the reported decisions of the Supreme Court. But assuming that such an extension would or should be made for the purposes of State jurisdiction, the consequence by no means follows that in matters of Federal jurisdiction an appeal _ may be maintained directly to this court from a magistrate notwith- standing that his decision has been confirmed in Quarter Sessions, -

The jurisdiction of Quarter Sessions to hear appeals in matters of - Federal jurisdiction arises from the operation which the decision of - this court in Ah Vick v. Lehmert (1) gave to sec. 39 (2) of the - Judiciary Act 1903-1940, and it is coextensive with its State juris diction. But, as I have already pointed out, the law of the State is not so incorporated in Federal law as either to limit or enlarge the appellate power of this court. It has no other operation than to distinguish in appeals from inferior jurisdictions between those as of tight and those by special leave, and to supply a procedure.

The very consideration which led to the decision of the Supreme Court in Ex parte Giles (2) is lacking in the case of appeals to this court. For, although such appeals are reheard on the same evidence, they are in the nature of appeals by way of rehearing, and are very different from the limited remedy given by statutory prohibition. But in any case the present question is independent of the distineti between appeals as of right and appeals by leave. It is a question whether this court can ignore a decision of a competent court of Federal jurisdiction confirming an order or conviction of a court - below it and, although the order of confirmation is left standing - and is not brought before us by way of appeal or otherwise, never- theless proceed to hear an appeal from the order so confirmed.

To that question there can, I think, be only one answer. It is not denied that the order of the Court of Quarter Sessions was within - its jurisdiction and was validly made. While it stands it is a judicial declaration by a competent court exercising Federal juris- - diction establishing the order of the magistrate and preventing its being called in question. If this court made an order setting aside - the conviction, there would be two inconsistent judicial orders in operation at the same time, that of the Court of Quarter Sessions confirming the conviction and that of this court discharging it. It would, of course, be open to the legislature to authorize a superior court to deal with an order of an inferior court notwithstanding that an intermediate court had confirmed it and the order of confirmation was not brought up for review. But even if the Justices Act 1902 (N.S.W.) has any such effect in State jurisdiction,

(1) (1905) 2 C.L.R. 593. (2) (1912) 29 W.N. (N.S.W.) 83.

d with the hearing of the appeal until the party had aban- his appeal to Quarter Sessions or that appeal had otherwise ed of. The correctness of the view that the two appeals of mutually exclusive alternatives and that a party was not his election between them, but might institute both remedies y, was tacitly assumed for the purposes of the court's Cp. O'Sullivan v. Morton (2). No opinion was expressed question whether, if this court did make an order affirming ction or any other positive order in reference to the convic- would remain possible for the Court of Quarter Sessions to with the conviction. That question had not arisen, but in ensure that it would not arise and in order to maintain the of this court as a court of final appeal, we refused to hear until the proceedings in Quarter Sessions were completely of. An undertaking had been offered by the appellant to n these proceedings, but the court was not content with an { and insisted that they should be brought to a formal Having regard to the appellant's offer to abandon his appeal ar Sessions, there was no likelihood in Henry's Case (1) that presented by the appeal now before us would there _ namely, the question what should be done by this court mn Quarter Sessions had already confirmed the conviction under to a court. the answer to that question is that we cannot

and is totally void, we must regard it as conclusive while The proper course for a defendant to take in such circum- is to apply under sec. 39 (2) (c) of the Judiciary Act for leave to appeal from the decision of the Court of Quarter exercising Federal jurisdiction. course Wishart has now taken, and it remains to deal with » substantive grounds of his application for special leave to appeal. he first ground upon which his counsel relied is that sec. 5 of the Security Act 1939 (No. 15 of 1939) is invalid. The regula- er which Wishart was convicted rests for its validity upon (1988) 61 C.L.R. 1. (2) (1911) V.LR. 235. £99 AL. (13,

OF AUSTRALIA. 483 ts so much of it as 80 operates has no spetntion to appeals 1. ©. or A. 1941. Wisnarr e g Federal jurisdiction while an appeal to Quarter ppm ions from the same conviction was pending. The court refused Dixon J.

H.C. ov A. the general words found at the beginning of that section and peas 7

The material parts of the provision purport to confer power wy the Governor-General in Council to make regulations for secu the public safety and the defence of the Commonwealth and Territories of the Commonwealth and for prescribing all matte which are necessary or convenient to be prescribed for the m effectual prosecution of the present war. It is said that such a provision is not a real exercise by the legislature of the power to make laws with respect to the naval and military defence of Commonwealth and of the several States, but an invalid atte to delegate that power or some part of it to the Executive. A

Two distinct grounds of objection are involved in the argument, viz., (a) the objection that the legislature cannot " delegate " any

tion of powers between the legislative, executive and judicial orga of government, none of the three can be made a repository of any power which properly belongs to either of the others.

In Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1) 1 have expressed my views upon the nature of each of these objections and the place they have under the Australian | Constitution, and I shall not repeat what I then said. It is enough for me to say (i) that upon principle I have never understood how the theory, which is applied in the United States, that the legislature could not "delegate" at all any authority considered to be legis- lative could have any place in our Constitution (See Victorian Steve- doring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (2) ), and (ii) that it has been uniformly decided in this court that the distribution of powers in the Commonwealth Constitution does not prevent the legislature from confiding to the Executive such . power as that expressed i in the words I have set out (See Viclorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (3) ).

It was suggested that in this particular instance of sec. 5 there _ was such a width or uncertainty of the subject matter handed over to the Executive that the enactment could not be said to be a law _ with respect to the naval and military defence of the Commonwealth or with respect to any other head of legislative power. 4

This suggestion cannot be sustained. The defence of a country is peculiarly the concern of the Executive, and in war the exigencies are so many, so varied and so urgent that width and generality are

(1) (1931) 46 C.L.R., at pp. 89-102. (2) (1931) 46 C.LR., at pp. 94-96. (3) (1931) 46 C.LR., at p. 101.

directed to the prosecution of the war and is a valid exercise defence power. The whole question is, in my opinion, con- by the decision of this court in Victorian Stevedoring and al Contracting Co. Pty. Ltd. and Meakes vy. Dignan (1) and prior decisions of the court upon which that decision was

'is, I think, undeniable that, once the validity of sec. 5 is estab- it authorizes the regulation under which Wishart was con- viz., reg. 41.

second ground upon which his counsel relied in support of ation for special leave is that it was not proved that the nt of the Attorney-General had been obtained for the prosecu- as required by sub-reg. 2 of reg. 41. In the margin of the actual mation is a typewritten consent purporting to bear the Attorney- 's signature. It is said that, as the sub-regulation is not to require a consent in writing by the Attorney-General, , evidentiary provision contained in sec. 9 of the National Security , Which relates to documents issued in pursuance of the regula- cannot apply and therefore will not authorize the reception consent in evidence without proof. As the purpose of the gulation is really to ensure that the written consent required c, 10 (4) shall be given for the purpose of reg. 41 by no other but the Attorney-General, the foundation of this contention re than doubtful. But in any case the court must take judicial of the Attorney-General's signature, and his consent therefore to appear (Holland v. Jones (2) ).

, it was contended that the evidence before the learned n of Quarter Sessions did not warrant his conclusion that entertained the intention required by reg. 41 (1) (b) at the date.

n the information 25th June 1940 was the date laid as that which he had in his possession with intent to cause disaffection the dissemination of which would, to state it briefly, disaffection among the troops. The finding that the document of the required description clearly was justified. It is hardly to doubt that it was composed with intent to endeavour to disaffection among soldiers, to whom it was addressed. Fifteen were found in Wishart's possession on 25th June 1940. He that he took part in composing the document. But that January, and in March circumstances arose which, he said, 'it a document which he no longer desired to use. Accordingly

he says that in June the document was dead and the copies found were not in his possession for use. He says that they were retained by accident. It is no doubt true that to amount to the offence charged possession of the document must be accompanied by an intention to use it to cause disaffection. But I think it is a certain - inference that he had possession of the copies in March and that possession was then accompanied by the required intention. Time - is in no way of the essence of the offence, and March is within twelve months of the information : See sec. 21 (1) (6), Crimes Act 1914-1937, - The proof of the coexistence in March of all the elements of the offence is therefore sufficient to justify the conviction under the information, the variance between the date proved and that alleged being treated as immaterial.

But in any case I am of opinion that the inference was fairly open to the Chairman of Quarter Sessions that Wishart had never com- pletely given up his intention of using the documents he retained if the opportunity or occasion arose or offered. That inference I think is well founded in probability.

I am therefore of opinion that an appeal from the decision of the Court of Quarter Sessions should not succeed and that special leave should be refused.

McTiernan J. The applicant was convicted by a stipendiary - magistrate exercising Federal jurisdiction as a Court of Petty Ses- sions in New South Wales of an offence against reg. 41 (1) (b) of the National Security (General) Regulations. The offence with which he was charged and convicted was that he did, with intent to endeavour to cause disaffection among members of the Second Australian Imperial Forces in the service of the King, have in his possession a document of such a nature that the dissemination of copies of it would constitute an endeavour to cause disaffection among them.

By the combined operation of sec. 39 (2) (b) of the Judiciary Act 1903-1940 and sec. 112 of the Justices Act 1902 of New South Wales as amended the applicant was entitled to appeal against the order by means of an application to this court for an order nisi for statutory prohibition. The proceedings in this court were begun in that fashion.

The applicant also had a right to appeal to a Court of Quarter Sessions in New South Wales by reason of the combined effect of sec. 39 (2) and sec. 122 of the Justices Actas amended. The applicant exercised this right of appeal. The conviction was, therefore, the subject of two simultaneous appeals.

the hearing of the appeal to this court was begun, we were ed that the Court of Quarter Sessions had heard and deter- appeal made to that court and had confirmed the convic- See sec. 125 of the Justices Act. The appeal to Quarter isa rehearing of the case, and fresh evidence may be adduced. 'is evident that the Court of Quarter Sessions is seised of the tion of the guilt or innocence of the accused, and is bound ce upon all the issues of fact or questions of law which re necessary for the determination of the question whether the

563 ought or ought not to be convicted upon the information "

8 | that, even if the appeal by way of the application tutory prohibition against the magistrate's order were the order of the Court of Quarter Sessions would This court, therefore, decided not to proceed further with g of the appeal against the magistrate's order but to

conyiction is challenged on the ground that the National Act 1939-1940 is ultra vires the Commonwealth Parliament sec. 5 is an illegal delegation to the Executive of legislative The two familiar grounds upon which a law vesting the with power to make regulations has been attacked are. t such a law infringes the doctrine of the separation of ;and, secondly, that the nature and extent of the vesting 1 that the law is not a good exercise of the power of the nt to make laws with respect to any subject entrusted to it Constitution. The decisions of this court make the first anuntenable one. Their effect is summed up by Dixon J. in n Stevedoring and General Contracting Co. Pty. Ltd. and Meakes an (2) in these words : - '' But I think the judgment " (in Kronheimer (3) ) " really meant that the time had passed ing to the constitutional distribution of powers among the e organs of government, an operation which confined the power to the Parliament so as to restrain it from reposing

re, retain the opinion which I expressed in the earlier case »

(1938) 61 C.LR., at p. 6. (2) (1931) 46 C.LR., at pp. 100, 101. ' (3) (1921) 29 C.L.R. 329,

(Huddart Parker Ltd. v. Commonwealth (1)) " that Roche y, heimer (2) did decide that a statute conferring upon the E

subjects of the legislative power of the Parliament is a law respect to that subject, and that the distribution of legis

to restrain the power of the Parliament to make such a law." ever, the second ground does not necessarily fall with the The uncertainty or width of the subject matter with res; which the Executive is given power to make regulations may p the law attempting to confer such power being a law with to any subject within the legislative powers of Parliament (Victor Stevedoring and General Contracting Co. Pty. Ltd. and Meakes Dignan (3) ). Sec. 5 cannot fail for vagueness, for it clearly d the field within which Parliament has empowered the Executiy make regulations. The section gives very wide powers to th Executive within that field. But it is obviously a valid exerci the legislative power of the Commonwealth with respect to de! to vest the Executive, which has the duty of executing the power, with authority to make regulations within the field out by the section.

Another ground of appeal is that reg. 41 (1) (b) is ultra wi sec. 5. The section enumerates matters with respect to which i confers power on the Executive to make regulations and conclu with a general grant of power. The contention which is made fo the applicant is that the generality of the grant is limited by 1 enumeration of particular matters preceding it. In my opin the language of the section leaves no doubt that its intention is the general grant should not be controlled in that way. It fol that the regulation is intra vires sec. 5.

Reg. 41 (2) provides that "a prosecution in respect of a contra vention of this regulation shall not be instituted except witl the consent of the Attorney-General." There is an indorseme on the information purporting to be a consent signed by | Attorney-General. But it is contended that, while the signat proves itself (sec. 9 of the Act), the indorsement does not itself. The National Security Act, by sec. 10 (4), provides where consent is required written consent will suffice. This sectio makes it unnecessary for the Attorney-General to be called give oral evidence of his consent. The indorsement signed by hi

(1) (1931) 44 C.L.R. 492. (2) (1921) 29 C.L.R, 329. (3) (1931) 46 C.L.R., at p. 101.

OF AUSTRALIA, g to be his written consent is, therefore, admissible

a question arises on the evidence. It is whether evidence which justified the finding that the applicant d contemporaneously with the possession of the document him the intent charged against him. After reading the T find it impossible to agree with the applicant's conten- hat the evidence is insufficient to justify this finding.

is, therefore, no ground upon which the application for to appeal should succeed. The result is that the order of Quarter Sessions confirming the conviction must

cation to make the order nisi absolute is, however, e us, although in the argument the application for special treated as the substantial matter. There is no decision eme Court of New South Wales on the question what it if an application to make absolute an order nisi for pro- came before it after the conviction against which prohibition ought had been confirmed by a Court of Quarter Sessions on

to it by the applicant. In the High Court the application ce the order nisi absolute is an appeal against the applicant's n of the offence charged against him. It puts in controversy whether or not the applicant was guilty of the offence. rt of Quarter Sessions was, upon the applicant's appeal to of that question, and its order is an adjudication that the was guilty. The issues raised by the application to make nisi absolute are the same as those concluded by the order of Quarter Sessions. The result which should follow e refusal to give special leave to appeal against that order is » coneurrent appeal should be dismissed by discharging the

ams J. I agree that the application for special leave to

y the order of the learned judge of Quarter Sessions be refused. With respect to the first three grounds argued the application and which are referred to in the judgment Chief Justice, I agree with his judgment and that of Dixon.

no evidence of the charge laid. The appellant admitted copies of the document referred to in the information in February 1940 with intent to endeavour to cause amongst soldiers of the Second Australian Imperial

HIGH COURT (i941. Forces, and there is sufficient evidence to show that this intention continued to exist on 25th June. When the police searched the appellant's office and home on that date, they found about fourteen copies of this document together with copies of another document entitled "This Imperialist War" and a mass of com- munist literature. The appellant said he believed that he had bunt all the copies of this document, but the learned judge was quite entitled to disbelieve him. The evidence showed the appellant was a joint author of the document, the terms of which plainly showed that it was intended for use in order to endeavour to cause such - disaffection. He admits that he used it between the date of its

composition in January and the end of February for this purpose.

About the end of March the Revolutionary Workers' League, a society consisting of a few persons and of which the appellant was the secretary, became affiliated with the Communist League, and the appellant became a member of the executive of that body. He said that the document was not used after the affiliation because it had not received the approval of this executive. but he admitted that in the middle of 1940 it was still a principle of the doctrines of the Fourth International that communist nuclei should be formed in every military unit and he considered that this principle should be acted upon. He said that he looked upon the army as an instru- ment of capitalist oppression, that he considered that soldiers' committees should be organized which would take over control of the army in due course, and that he would have liked the general situation to have advanced to such a stage on 25th June that the right time for doing this would have arrived, although it had not in fact done so.

All this is evidence to show that the clear intention he had at the end of February to endeavour to disaffect the troops still persisted on 25th June, although, on that date, the fear of punishment was causing him to bide his time until the situation became more pro- pitious for the resumption of that persistent and systematic pro paganda which Lenin had advised his disciples must be carried on | to final victory.

The learned judge was therefore entitled to confirm the conviction of the appellant, and the fourth ground also fails.

With respect to the application to make the rule nisi for prohibition absolute the position is shortly as follows. The appellant was convicted by the stipendiary magistrate on 16th January 1941. | On 6th February he applied to me for a rule nisi for a statutory prohibition under the Justices Act 1902 (N.S.W.). The applica tion was made within the time allowed by sec. 112 of that Act.

'the meantime the appellant had appealed to the Court of 4. © or 4 warter Sessions in accordance with sec. 122 of the Act, so that, |; ew of the decision of this court in R. v. Poole; Ex parte Wrouger (1), I stood the application over until the appeal had been ®. of. The appellant did not withdraw the appeal but elected ™45* cute it, As a result the order of the magistrate was con- Williams J. 'on 2Ist March by the learned judge of Quarter Sessions. j renewing his previous application for the rule nisi March I made an order returnable before the Full Court

d April. As a result of the conviction having been confirmed,

'order which is now effective is that of the Court of Quarter sessions (See sec. 125), and I agree that there is no longer any order

magistrate in respect of which a prohibition can be granted.

z _ - to make the rule nisi absolute should therefore

Special leave to appeal from order of Court of Quarter Sessions refused. Rule nisi for writ of prohibition in respect of order of magis- trate discharged.

0 citors for the applicant, Glasheen & Co. olicitor for the respondent magistrate, A. H. O'Connor, Crown»

wr for the other respondents, H. F. E. Whitlam, Crown

At a glance

Court

Decision date

Source

Judgment (128 paragraphs)