ON APPEAL FROM A COURT OF PETTY SESSIONS OF Constitutional Law-Defence-National Security Act-Regulation-making power-
National Security (Apple and Pear Acquisition) Regulations-Freedom of inter- State trade and commerce-Acquisition of property on just terms-The Constitution (63 &64 Vict. C. 12), secs. 51 (vi.), (xxxi), (xxxix.), 92-National Security Act MELBOURNE, 1939-1940 (No. 15 of 1939-No. 44 of 1940), sec. 5 (I)*-National Security May 13, 14, (Apple and Pear Acquisition) Regulations (S.R. 1939 No. 148-1940 No. 295) -Acts Interpretation Act 1901-1937 (No. 2 of 1901-No. 10 of 1937), secs. 15A, 46.
The National Security (Apple and Pear Acquisition) Regulations are a valid exercise of the power to make regulations conferred by sec. 5 (1) of the National Security Act 1939-1940 and are within the ambit of the defence power of the Commonwealth.
So held by Rich A.C.J., Dixon and McTiernan JJ. (Starke J. dissenting). Held, further, by the whole court, (a) that the regulations do not contravene sec. 92 of the Constitution and (b) that, in relation to sec. 51 (xxxi.) of the Constitution, they do not provide for the acquisition of property otherwise than on just terms. * Sec. 5 (1) of the National Security
Commonwealth of any property other Act 1939-1940 provides as follows :-
and for prescribing " Subject to this section the Governor-
all matters which, by this Act, are General may make regulations for secur-
required or permitted to be prescribed, ing the public safety and the defence of
or which are necessary or convenient the Commonwealth and the Territories
to be prescribed, for the more effectual of the Commonwealth, and in particular
prosecution of any war in which His (b) for authorizing
Majesty is or may be engaged or for (ii.) the acquisition on behalf of the
APPEAL, by way of order nisi to review, from a Court of Petty Sessions of Victoria.
On 25th January 1941 Geoffrey Basil Andrews in the Victoria Market, Melbourne, drove a truck loaded with twenty-seven cases of apples which had been acquired by the Commonwealth. On 13th March 1941, at the Court of Petty Sessions, Melbourne, he was charged by David Thomas Howell, an officer of the Apple and Pear Board, "with contravening a provision of the National Security (Apple and Pear Acquisition) Regulations in that he did move twenty-seven cases of apples acquired by the Commonwealth which were held in his possession." In the information the informant averred "that on the said day the said apples had been acquired by and were the property of the Commonwealth." Andrews was convicted and fined three pounds, in default distress.
The regulations under which Andrews was convicted were the National Security (Apple and Pear Acquisition) Regulations, Statutory Rules 1939 No. 48, as amended by Statutory Rules 1940 Nos. 13, 38, 60, 276, 283, and 295, made under sec. 5 (1) of the National Security Act 1939-1940. The object of these regulations, as stated in reg. 2, is…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Andrews v Howell [1941] HCA 20
Case
[1941] HCA 20
Decision Date
CaseChat Overview and Summary
The case of *Andrews v Howell* concerned an appeal to the High Court of Australia from a conviction in a Victorian Court of Petty Sessions. The appellant, Geoffrey Basil Andrews, was charged with contravening the National Security (Apple and Pear Acquisition) Regulations by moving twenty-seven cases of apples that had been acquired by the Commonwealth. The regulations were made under the National Security Act 1939-1940, and their stated purpose was to address marketing disorganisation in the apple and pear industry due to wartime shipping difficulties.
The legal issues before the High Court were whether the National Security (Apple and Pear Acquisition) Regulations were a valid exercise of the Commonwealth's legislative power. Specifically, the court had to determine if the regulations were authorised by the National Security Act, if they fell within the scope of the defence power (section 51(vi) of the Constitution), if they contravened section 92 of the Constitution concerning freedom of inter-State trade and commerce, and if they provided for the acquisition of property on just terms as required by section 51(xxxi) of the Constitution.
A majority of the High Court, comprising Rich A.C.J., Dixon, and McTiernan JJ., held that the National Security (Apple and Pear Acquisition) Regulations were a valid exercise of the power conferred by section 5(1) of the National Security Act and were within the ambit of the defence power. The court reasoned that in the context of a total war, measures to organise and support essential primary industries could conceivably aid the prosecution of the war effort. Furthermore, the majority found that the regulations did not contravene section 92 of the Constitution, as they were not directed at inter-State trade but rather at domestic marketing issues arising from wartime conditions. Regarding section 51(xxxi), the court determined that the regulations provided for the acquisition of property on just terms, interpreting the compensation provisions as conferring an absolute right to fair compensation, even if the administrative process for determining it was not a judicial one. Starke J. dissented, finding the regulations to be beyond the scope of the defence power and potentially contrary to section 92.
The High Court dismissed the appeal, upholding the conviction. The majority concluded that the regulations were a lawful exercise of Commonwealth power and that the prohibition on moving acquired apples and pears was a reasonable measure for protecting Commonwealth property.