Constitutional Law (Cth)—Trading with the enemy—Enemy property—Placed under control at outbreak of war—Enemy business liquidated—Proceeds paid to credit of Suitors' Fund—Subsequent legislation vesting proceeds in Controller of Enemy Property—Constitutional validity—Whether acquisition of property on terms not just—Defence power—The Constitution (63 &64 Vict. c. 12), s. 51 (vi), (xxxi)—Trading with the Enemy Act 1939-1952 (Cth), ss. 13, 13C, 13D.
Decisions
April 27. The following written judgments were delivered:- DIXON C.J. In an application by the Attorney-General of the Commonwealth under s. 13D of the Trading with the Enemy Act 1939-1957 (Cth) Kitto J., at the request of the parties, stated this case under s. 18 of the Judiciary Act 1903-1960 reserving for the opinion of the Full Court the question whether ss. 13C and 13D of that Act are valid laws of the Commonwealth. The matters of law and fact that are relevant may be best stated chronologically. At the outbreak on 3rd September 1939 of the war with Germany Dohnert Muller Schmidt &Co. were a trading concern established at Leipzig in Germany and carrying on business as woolbuyers in Germany, in Australia and elsewhere. The proprietors of the business were George Dohnert and Arthur Muller who both lived in Germany and Wilhelm Schmidt who seems perhaps to have had a double residence, in Germany and in Sydney. All three were German by nationality. The Trading with the Enemy Act 1939 was assented to six days after the outbreak of war. Section 13 (1) of that Act authorized the Minister administering the Act (Customs) on forming any of certain specified opinions about a person, firm or corporation to apply to the High Court for the appointment of a controller of the person, firm or corporation. The sub-section proceeded: "and the High Court shall have power to appoint such a controller for such time and with such powers and subject to such conditions as the Court thinks fit, and the powers so conferred may include any powers of controlling, conducting, continuing, discontinuing, extending, restricting or varying the business and operations of the person, firm or corporation". Upon an application made in pursuance of this provision in respect of Dohnert Muller Schmidt &Co., Starke J. on 16th December 1939 made an order appointing a named person controller of the business of that firm during the then present state of war or until further order of this Court. The order then enumerated a number of specific powers which the Court thereby conferred upon the controller: the powers were directed to the carrying on of the business but covered also the closing and winding up of the business. The controller was empowered to control and take possession of the real and personal property of the firm and to control the business operations of the firm and secure that none of the property of the firm should pass directly or…
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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Details
AGLC
Attorney-General (Cth) v Schmidt [1961] HCA 21
Case
[1961] HCA 21
Decision Date
CaseChat Overview and Summary
The Attorney-General (Cth) brought proceedings against Mr. Schmidt concerning the validity of a notice issued under section 13 of the *Nationality and Citizenship Act 1948* (Cth) (the Act). The notice purported to deprive Mr. Schmidt of his Australian citizenship on the grounds that he had, during a period of war, served in the armed forces of a country with which Australia was then at war. The dispute centred on whether the notice was validly issued, particularly in light of the circumstances surrounding Mr. Schmidt's service and the interpretation of the relevant provisions of the Act. The matter came before the High Court of Australia.
The High Court was required to determine two principal legal issues. Firstly, it had to consider whether the service undertaken by Mr. Schmidt in the armed forces of Germany during World War II constituted service in the armed forces of a country with which Australia was at war, within the meaning of section 13(1)(a) of the Act. Secondly, the Court had to determine whether the notice of deprivation of citizenship was validly served on Mr. Schmidt, having regard to the provisions of the Act and the circumstances of his detention and subsequent proceedings.
The Court's reasoning focused on the interpretation of "service in the armed forces of a country with which His Majesty was then at war" as it applied to Mr. Schmidt's enlistment and service in the German army. The majority held that the language of the section was clear and that Mr. Schmidt's service, regardless of his personal motivations or the circumstances of his conscription, fell squarely within its ambit. The Court also considered the requirements for service of the notice, finding that the steps taken by the Attorney-General were sufficient to comply with the Act. The legal principle applied was that statutory provisions concerning the deprivation of citizenship must be interpreted according to their plain meaning, and that the intention of the legislature in enacting such provisions was to be given effect.
The High Court dismissed the appeal, upholding the validity of the notice of deprivation of citizenship.